Update (January 12, 2018): If a contract expressly says it is indefinite, does that mean that the contract is terminable “after a reasonable amount of time”? This is the appellant’s position in the case described below, which appellant argued before the Minnesota Supreme Court this week.

In our original post, below, we held off on predicting the outcome of the appeal. We will go out on a limb. Based on the argument, the appellant, CVEC, we predict, will lose.


“Forever” or “indefinitely” just aren’t synonyms for “for a reasonable amount of time.”

There is a more difficult and thornier issue in the case, though. The trial court ordered “specific performance” of obligations under the contract for the breaching party. This remedy was clearly troubling to several of the justices. We will have to wait and see how they solve that puzzle…


“A Tough Knot to Crack” (photo by Jay Fanelli)

Update (January 11, 2018): Yesterday, the Minnesota Supreme Court heard argument in the Savoie case, described below. It was not very illuminating and so, to us, it was disappointing.

A key problem in the case is that the Court appears to be of the opinion that, under Minnesota law, a personal representative (“PR”) of a decedent can bring no claim that the decedent could not have brought when the decedent was alive (based on subpart C of this linked statute).

It seems to us, however, that this is an incorrect reading of the statute. It seems to us that the rule in the statute — that the PR has the same standing as the decedent had immediately prior to death — is a floor, not a ceiling to the PRs standing and authority. It provides that the PR has standing to bring decedent’s “in vivo” claims but it does not limit the PR or prohibit the PR from bringing all “posthumous” claims, as well (except for claims like defamation that do not survive death).

Take this situation: Doe dies on 1/1/2017. A PR/Trustee is appointed on 1/31/2017. On 2/15/2017, Jane Roe goes into Doe’s former home and simply removes personal property that she thinks she should inherit. Doesn’t the PR/Trustee have standing to bring a claim against Roe for conversion? Obviously, Doe did not have standing to sue Roe when he was alive. She hadn’t taken anything yet.

The statute provides: “a personal representative of a decedent…has the same standing to sue and be sued in the courts of this state…as the decedent had immediately prior to death.” We are not trust/estate experts. Maybe we are wrong. But we read this to mean that a personal representative can “stand in the shoes of the decedent” for all the same kinds of claims that the decedent could have brought when alive (and for like claims if they are allowed after death).


We recently profiled retired U.S. Magistrate Judge Keys, and he pointed out what we already knew: it isn’t just older lawyers who have a lot of interesting things to say about the practice law. Mentoring flows both ways from junior lawyers to senior lawyers as well as senior to junior.

Minnesota Litigator (“ML”): Given the long line of success in your career, I thought you, Emily McNee, would be a great person to talk to from your insight as a relatively junior lawyer.

Emily McNee: I appreciate that. Happy to be here.

ML: How long have you practiced?

Emily McNee: Five years now. I graduated from law school in 2013 and then spent a year clerking for Judge Louise Bjorkman at the Minnesota court of appeals. And then, from there I joined Littler Mendelson. So, I’ve been with Littler about four years.

ML: Maybe you’re close enough to your own decision to go to law school to advise people who are now graduating from college and wondering, “What next?”

Emily McNee: And I also teach at the University of Minnesota Law School as a legal writing adjunct. So, I’m close to the law school in that way also. In terms of advice for people thinking about law school, I think they need to decide if being a lawyer is something that they’re interested in. There are a lot of people who find the experience of law school enjoyable, but then they finish school and it’s sort of, “Well, what now?” And they haven’t necessarily thought about that on the front end.

Going to law school and being a lawyer are two different things. I think there are a lot of avenues coming out of law school, but for people who are interested in working with people, helping to solve problems, intellectually-challenging issues, law school and being a lawyer can be a good fit.

ML: Anything about the practice of law come as a surprise to you?


Mobile Homes, New Ulm, MN (1974)

Update (January 8, 2018): Should any governmental body have the power to regulate mobile home parks? To impose rules as to fences, garbage receptacle visibility, permitted neighboring structures (car parks, sheds, etc.)? Presumably few of our readers spend much time in this area of governmental regulation but all of us know that the government imposes rules on various aspects of how we use and maintain our own property. If some public body has the right to regulate conditions in mobile home parks, who should it be? The federal government? The city? The state?

In the original post, below, plaintiff-mobile home park residents won a big decision based on the court’s apparent sense that the city of Burnsville was targeting the residents for being “ethnically diverse.”

On appeal, however, Judge Francis Connolly for the Minnesota Court of Appeals reversed the trial court, whose decision was premised on the preemption of local regulation by federal regulations related to mobile homes.

Numerous federal courts have held that the Act’s express preemption provision is limited to prohibiting states and municipalities from regulating the “construction or safety” of manufactured homes in any manner that is not identical to federal HUD standards.

As reprehensible as regulations being used to target “ethnically diverse” citizens, in particular, clearly the regulation of mobile home parks is more appropriate at the local level than the federal level. So we are confident that the Court of Appeals got this one right.

As we note below in the original post, this dispute is a matter of public record and elected city officials are on the record as to where they stood. So it seems that plaintiffs’ recourse is at the ballot box rather than the courthouse.


Photo by Molly Steenson

Normally, we have a holiday season hiatus at the end of every calendar year, a bit of R&R, stepping back from the relentless demand of a full time legal practice and legal blogging.

This year is different.

We are spending our holiday season preparing for a trial scheduled to start on January 2, 2018.

Talk amongst yourselves….

We’ll be back…

In the meantime, thanks to all of our loyal readers, contributors, tipsters, and fans.




Christmas in Minnesota

Available at Amazon and other booksellers on-line and earthbound 

Merry Christmas and Best Wishes for the Year to Come from Minnesota Litigator!

“A Tough Knot to Crack” (photo by Jay Fanelli)

Updated post (December 18, 2017): We knew that the case discussed below, St. Jude v. Muddy Waters, would be a hard-fought lawsuit given the personalities of the litigants and their lawyers. We have not covered the lawsuit’s first year because, really, it’s just getting started. The lawsuit is brought by a medical device maker against a “short-seller,” that is, an investor who makes money by predicting company failures (or, at least, a company’s drop in share value). In sum, short-sellers make money by “betting against” particular companies.

Sometimes, short-sellers are accused of fraud and market manipulation. They are accused of disseminating false and harmful information about a company, causing the stock price to fall, and taking advantage of the stock-drop.

Roughly, this is the claim against Muddy Waters.

In recent months, the parties have been negotiating settlement and, in that context, St. Jude Medical disclosed information in settlement “subject to Rule 408” about which Muddy Water’s founder, Carson Block, tweeted.

All experienced U.S. litigators know that “Rule 408” refers to a rule of evidence that provides that “settlement communications” may be excluded from evidence under certain circumstances. In our experience, courts often read this exclusion from evidence quite broadly; that is, they are quite reluctant to let a counter-party introduce another party’s settlement communication into evidence. But Rule 408 has nothing to do with whether a communication must be kept confidential and non-public.


Communication is the foundation of all agreements. Miscommunication lurks at the foundation of most contract disputes.

When a person or a business (say, a business owner) hires intermediaries to help negotiate a complex agreement (say, a commercial lease) and, in the end, a material term failed to make its way into the final agreement, who’s to blame? Who should bear (or share in) the loss?

One argument that we have heard in many cases come from the intermediary accused of dropping the ball who argues, “Well, you, the client, signed the final deal. It’s on you if you signed it when it lacked a material term….”


It is infrequent that we use the Minnesota Litigator blog for downright self-promotion because (1) attorney-client confidentiality concerns often prohibit it; (2) we assume our readers are not interested; or (3) “other reasons” (for example, the “win” is too complicated to explain, publication is inconsistent with our business/marketing strategy, etc.).

On the other hand, from time to time, we make exceptions and we do today.

Mr. Nathan C. McGuire, a now-former Woodbury High School (“WHS”) girls basketball coach, sued several parents of students on the WHS j.v. and varsity girls basketball team for defamation and alleged knowing or reckless false reports of maltreatment of minors under Minn. Stat. 626.556, Subd. 5. (He also sued the school district unsuccessfully.)

He lost — that is, unless and until he elects to appeal and then prevails on appeal.

We represented a defendant in Mr. McGuire’s lawsuit and we recently won a motion for summary judgment on the threshold of trial.

LEVENTHAL pllc attorney Brandon Meshbesher did the heavy-lifting and deserves the credit.

The case highlights a point that retired Magistrate Judge Keyes made in his recent Minnesota Litigator profile:


We celebrate the attached contempt order, issuing a sanction of over $89,000 in attorneys’ fees for misconduct in discovery, and here’s why:

Some years ago, we were preparing for a trial when, in the intense few weeks before the start of the trial, the other side brought a motion to amend to add a claim for punitive damages against our client. As all experienced Minnesota civil litigators know, such motions are required by statute before any claim for punitive damages is allowed and it is rare that such motions are granted. The motion for punitive damages was completely inappropriate in the case headed for trial.

We were incensed that our trial preparation had to be interrupted to fight the baseless punitive damages motion and we asked the Court not only to deny the motion but to sanction (i.e., punish) the other side for bringing the baseless motion.

The Court agreed with us and, in a written order, provided that sanctions would be applied at a later date.

It is now years later. The case was resolved. The trial court backed away from the discipline that it had said it would impose.