Update (July 5, 2019): Another U.S. District Court Judge (D. Minn.) (Hon. Donovan W. Frank) weighs in on the subject of the post, below.

Update (May 3, 2018): (Maybe a lawyer’s right to speak to jurors (or, more precisely, a judge’s prohibition on a lawyer’s right to talk to jurors?) implicates the First Amendment?) Recent discussion of the issue covered in the original post, below.)

Original post (April 11, 2018): After a recent jury verdict in favor of women’s hockey coach, Shannon Miller, in a lawsuit against the University of Minnesota, defense lawyers sought permission of U.S. District Court Judge Patrick J. Schiltz (D. Minn.) to contact jurors.

Judge Schiltz’s response:

My policy regarding contacts with jurors is as follows: I do not forbid attorneys to contact jurors. At the same time, I do not provide contact information to attorneys. Moreover, when I speak to jurors after trials, I discourage them from talking with anyone who contacts them about the case.

In short, you may contact the jurors, but you will have to locate contact information for them on your own, and you may not find many jurors who are willing to speak to you.

Does that sound like the right approach to you?

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Update (June 28, 2019): The Minnesota Supreme Court has spoken on the case discussed below.

The quick background: Defamation defendant Jorud holds herself out as a victim of domestic abuse. Someplace Safe, a non-profit set up to fight this widely recognized social ill, quoted and recognized Ms. Jorud with a “Survivor Award” at a fund-raising banquet. Ms. Jorud’s ex-husband, Mr. Kurt A. Maethner, sued his ex-wife and Someplace Safe for defamation, arguing that, in context, the community would conclude that Mr. Maethner was guilty of domestic abuse and, he alleged, the allegations were false and defamatory.

“[W]hether speech involves a matter of public or private concern is based on a totality of the circumstances,” the Minnesota Supreme Court held (here at p. 22) and sent the lawsuit back to the district court to determine whether the “speech” in the Jorud case involved “a matter of public or private concern.” [Editor’s comment: It involved a matter of public concern. ]

Notwithstanding that “Editor’s Comment,” we also note: Ka-ching!!!

Standards like “the totality of the circumstances” are money for civil litigators because they are, by definition, impossible to divine a bright-line rule in many cases. Such determinations are not easily made quickly or cheaply in many cases.

Justice Thissen dissented on the question of whether the advocacy group defendant, Someplace Safe, Inc., was off the hook for the amount of care that it took before publishing the allegedly defamatory statements. The majority of the Court decided that Jorud, the alleged abuse victim “and Someplace Safe had a preexisting relationship and that, from that relationship, Someplace Safe had no reason to question the accuracy of Jorud’s accounting of her history of suffering domestic abuse.” Absent any other evidence, the Supreme Court majority found this amount of “care” a reasonable amount of care as a matter of law.

We’re being glib by pointing out that a nebulous standard enriches civil litigators, of course. The conflict of First Amendment free speech protection and common law defamation law is insoluble on any kind of global or bright-line basis. Of necessity, it is an extremely delicate balance demanding careful case-by-case judgment and, in our view, the Court got the balance right in this case.

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Last week, the Minnesota Supreme Court adopted some amendments to court rules that will make our lives as lawyers easier! 

New deadlines

The amendments set new deadlines for many court filings.

And, the amendments will make it easier to figure out deadlines for court filings.

The amended rules adopt a 28 – 21 – 14 – 7 day system.   Rather than the 3 day, 5 day, 9 day, 10 day and 20 day deadlines set by existing court rules.

So, for example, under the amended rules, the moving party’s initial filings for dispositive motions will be due 28 days before the hearing, as now.  But, responsive documents will be due 14 days before the hearing (rather than 9 days before), and replies will be due 7 days (rather than 3 days) before the hearing.  This means that if you file your opening memo on a Monday, the other side’s response documents will be due predictably on a Monday (absent a legal holiday screwing things up), and your reply will also be due on a Monday. 

The same kinds of amendments change the deadlines for nondispositive motions.  So motion documents by a moving party for a nondispositive motion must be served and filed 21 days (rather than 14 days) before a hearing, responses are due 14 days (rather than 7) before a hearing, and replies are due 7 (rather than 3) days before a hearing, for the same good reasons.   All documents will be due on the same day of the week (again, absent a legal holiday). 

Attorneys will need to double-check all deadlines as the new rules go into effect.  

The “next day” rule

The amendments adopt the “day is a day” approach.  So weekends and holidays are always included in calculating the deadline.  No skipping weekend days.

What if a due date will fall on a weekend or holiday?  The due date will then be the “next day” that is not a weekend or holiday. 

The new rules define “next day.”  To figure out the “next day,” you continue “to count forward when the period is measured after an event and backward when measured before an event.”  So, if your summary judgment motion is scheduled, and the 28-day period falls on a Saturday, you count backward to the preceding Friday to figure out your deadline. 

When, on the other hand, you have 21 days to answer a complaint, and the 21rst day falls on a Saturday, you count forward to the following Monday to calculate your due date. 

The new timing rules are consistent with amendments made a while ago to the federal rules of civil procedure.  Another advantage!  No need to remember two sets of rules. 

The Court adopted amendments to the Minnesota Rules of Civil Procedure, the Minnesota General Rules of Practice, and the Minnesota Rules of Civil Appellate Procedure

All the amendments take effect on January 1, 2020. 

Congratulations to lawyers from Quinn Emanuel and their local counsel on a significant fee award coming on the heels of a jury verdict in one of some fifty lawsuits brought by a hollow husk of an undead zombie mortgage lender (going by the name of “RFC and RESCAP Liquidating Trust Act” or “RFC,” for short) against other lenders whom RFC accused of having sold it rotten loans in violation of the lenders’ agreements with RFC before the 2008 collapse of the mortgage lending business.

Check out the 64-page decision of U.S. District Court Judge Susan R. Nelson (D. Minn.). This should be required reading for any civil litigator seeking an award of attorneys’ fees in Minnesota (at a minimum).

We cannot help but notice that Judge Nelson, even with her high praise of the Plaintiff’s lawyers, could not resist giving the fee petition a haircut (see here for earlier posts on the “Minnesota haircut”).

“While the Court recognizes the tremendous talent and efforts of Quinn Emanuel’s counsel, it respectfully declines to include the [REDACTION] contingency payment in the award of attorney’s fees” (here at p. 59).

“For all of the reasons discussed earlier, the Court finds that the revised
lodestar, $18,002,732.84, constitutes reasonable attorneys’ fees. This was a contentious, long lawsuit, and this award reflects the complexity, and time-consuming nature of this case. No further enhancements are warranted.”

There is some irony that the underlying case concerned a rather direct, literal, inflexible, and draconian enforcement of contracts (the contracts between RFC and its lenders) but, when it came to enforcing the contract between RFC and its lawyers, the Court effectively exercised its discretion to strip the Plaintiffs’ lawyers of some of their bargained-for legal fees.

FULL DISCLOSURE: LEVENTHAL pllc was local counsel to two lenders who were sued by RFC and settled. (In hindsight, it would seem they were smart to settle (and ingenious to hire LEVENTHAL pllc, of course). On the other hand, no one should lose sight of the fact that Home Loan Center (HLC), the loser at trial, might appeal and get out of this pickle in days to come.)

Over the years, Minnesota Litigator has had touchstones, you might call them, or recurring post themes and one of them has been sanctions. As a blog that focuses on news and developments in Minnesota civil litigation, sanctions are of interest because, in a sense, they illustrate the pinch points, one might say, between respective Minnesota litigators (the movants and respondents) and/or between particular Minnesota litigators and particular judges.

Presumably, some readers have absorbed some of the messages we’ve hoped to disseminate in some of our recurrent themes. We like to think so. For those of you who have not, we post about another case standing for the proposition that Minnesota courts are not particularly amenable to motions for sanctions.

They do not like them.

The critical practice pointers are (1) think more than twice about bringing a motion for sanctions; and (2) if you bring one, follow the procedural provisions of Minn. R. Civ. P. 11 strictly.

Minnesota litigator, Mark A. Olson, did not. Specifically, he failed to served the motion papers on his adversary three weeks before filing the papers with the court. As a result, in the linked case, Mr. Olson expended the resources of a motion, which was denied, and an appeal, which was denied. One hopes that clients were not billed for the motion and appeal which were dead on arrival since they were procedurally improper.

The dispute between Mr. Jon and Ms. Sonja Nelson and the International Paper Company over who owes whom what for a tree-farming/growing deal caught our eye because LEVENTHAL pllc also has a current case in which two parties entered into two agreements at the same time which are inconsistent.

On its face, the situation is almost absurd.

International Paper (“IP”) suggests “the parties rather inexplicably executed [two inconsistent] agreements [at the same time,]” as if IP were made up of newly discovered and mysterious subatomic particles rather than human decision-makers. (See here at p. 1).


IP, in arguing for summary judgment, has a simple solution to this inexplicable enigma: ignore one of the two agreements. That is, IP argues that “it is abundantly clear that the parties’ relationship was at all times governed” by one of the two agreements. Id. (IP suggests that the “objective conduct of the parties” shows which contract the two were operating under. (See here at p.10.))

The Nelsons, Minnesota Litigator readers will be shocked to read, see things differently.

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Strange Passions: A Raging Torrent of Mixed Emotions

The Minnesota Human Rights Act defines sexual harassment.

“Severe and pervasive” conduct is not included in the definition:

“Sexual harassment” includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, education, or housing;

(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment, public accommodations or public services, education, or housing; or

(3) that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.

Minn. Stat. 363A.03, subd. 43.

Courts engrafted this “severe and pervasive” requirement onto a sexual harassment claims over 30 years ago. (See the Kenneh v. Homeward Bound Minnesota Court of Appeals decision at p. 8) (and see here (the seminal case) (and see here (a thorough recent article on the subject by Sheila Engelmeier, Heather Tabery, with assistance by Colin Thomsen)). Why? Because the statutory definition of “sexual harassment” is so vague and subjective that the courts felt compelled to constrict its application to balance the rights and interests between employers and employees.

Earlier this year, there were legislative efforts to remove the “severe and pervasive” requirement from plaintiff’s burden in a sexual harassment case. Those efforts failed. Now we will see whether Ms. Assata Kenneh and her lawyers have better luck before the Minnesota Supreme Court, which has granted her petition for review of her case against Homeward Bound, Inc. (petition, here, response, here).

Julie Andrews Still Photo From The Sound of Music

Regular readers of Minnesota Litigator are familiar with our TAAFOMFT (“These are a few of my favorite things”) posts in which we engage in the fine art of whining via irony.

The title of this post comes from a famous negotiation in the 1960’s involving the United States and Vietnam in which the shape of the table for the negotiation was, itself, the subject of several months of negotiation.

We have not experienced a conflict over table-size or shape in our decades of civil litigation practice but civil litigators’ lives are all too consumed with similarly weighty (and, at the same time, seemingly weightless) skirmishes.

Such a squabble has come up in United States et al. ex. rel. Higgins v. Boston Scientific, where the parties are fighting over Fed. R. Civ. P. 30(d) — the duration of a key deposition.

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The AMA Opposes Lawsuit Abuse Against Physicians….

Now there’s a controversial take, right? An industry trade association against “lawsuit abuse” of its members?

Seriously, everyone everywhere opposes “lawsuit abuse against physicians.” Does this overblown rhetoric serve any purpose aside from venting outrage and causing a spike in blood pressure?

Has the Minnesota Supreme Court, in fact, given carte blanche to plaintiffs’ lawyers to engage in “lawsuit abuse against physicians”?

The Minnesota Supreme Court decided Warren v. Dinter last month. The decision is being treated by physicians and the medical malpractice defense bar as a devastating legal development.

“Imagine,” some are lamenting, “offering a casual comment at a dinner party — say, about someone’s labored breathing or a skin blemish — and being sued for a ‘misdiagnosis’ when there was never any physician-patient relationship…” (the proverbial “curbside consultation” (see here at p. 15)).

Even worse, “Imagine being sued by a patient whom you never saw or treated!” (see here, page 1 of the dissent, page 20 of the PDF).

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fearUpdate (6/7/19): We had the pleasure of wiring millions of dollars to clients this week and, while at the bank initiating the wire transfer, we noted a new filing in the bank-wire fraud case described below.

This made our transaction a bit more nerve-wracking than it otherwise would have been.

We link to another strong piece of advocacy by the defendant bank, Fifth Third, the bank’s opposition brief to the plaintiff’s motion in limine.

The question the bank is tackling: if an authorized person of a banking customer orders the bank to transfer money AND (hypothetically) the bank does not have commercial reasonable security procedures, who’s liable for a fraud loss? According to the bank (and the many cases on which it relies), the customer bears the loss. Executing the demand of an authorized person insulates the bank from liability for the transfer, according to the bank regardless of any evidence of the bank’s security procedures (or lack of them).

Quoting a law review article, Fifth Third points out: “The principle is fairly simple: The bank bears the loss from external fraud; the customer bears the loss from internal fraud.”

But, in a “man-in-the-middle” fraud such as this, is the fraud external or internal?

Update (May 24, 2019): When a fraudster scams a bank customer, when is the bank responsible for the customer’s loss? When is the customer responsible?

Read the bank’s well written Statement of the Case for the upcoming trial of the case described below (linked).  

Update (April 5, 2019) (under the headline: “The Smell of Fear”): We have covered Upsher-Smith vs. Fifth Third Bank for a while now (see below) and it is looking like trial may be coming soon (or not). It seems that the prospect of trial is quite disturbing to the defendant Fifth Third Bank, which appears desperate to avoid trial feeling strongly that the claims against it should not have survived summary judgment.

Plaintiff Upsher-Smith, represented by hard-chargers from one of the preeminent Minneapolis civil litigation firms, Anthony Ostlund Baer & Louwagie, are pushing hard against what it characterizes as Fifth Third’s attempt to delay the day of reckoning.

Chief Judge John R. Tunheim (D. Minn.) promptly rejected Fifth Third’s motion for reconsideration or, alternately, for interlocutory appeal this week.

The issues in this case are quite fascinating but, as we discuss below in this thread of posts, we have been somewhat limited in researching the case because much has been filed under seal. But that makes sense. The case is about an internet-related scam of multiple millions of dollars. Presumably internal bank safe-guards and other related information is best kept secret. On the other hand, apportioning legal responsibility between the various actors is of great public interest. We will continue to follow the case, hobbled though we are by the sensitive subject matter involved.

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