CatAndMouseChaseJeorenMoeszUpdate (September 11, 2017): Mr. Hansmeier’s public defender’s efforts to dismiss the 18-count indictment against Mr. Hansmeier were unsuccessful (denial of motion, last week, linked here).

Few, if any, will feel sympathy for Mr. Hansmeier who, essentially, uploaded pornography onto the internet, made it accessible for download at no cost, and then used the court system to find out who took him up on his porn bargain, to threaten them with exposure and six-figure copyright infringement liability.

In response to threats, red-faced downloaders paid about $4,000 each to make this embarrassment go away.

Mr. Hansmeier’s scheme netted millions of dollars until courts started to catch on, asking Mr. Hansmeier to explain the claims in greater detail, at which time, Mr. Hansmeier gave courts misleading information about who was behind a wide variety of related entities, concealing that they were all, essentially, Mr. Hansmeier and his colleague, Mr. Steele.

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

According to lawyers for Chippewa Valley Ethanol Company (“CVEC”),

In Minnesota, for the last half century, contracting parties understood that one way to make a contract last for a reasonable time, and thereafter become terminable at will, was to make the duration of the contract ‘indefinite.’

CVEC cites an old case standing for the proposition that “the general rule [is] that a contract having no definite duration, expressed or which may be implied, is terminable by either party at will upon reasonable notice to the other.”

Notice the little puzzle nestled in there: “a contract having no definite duration expressed is terminable by either party.” If a contract expressly provides that it is of indefinite duration, is that a contract “having no definite duration expressed”? The contract definitely addresses the issue of duration but it does not include any fixed term (any duration, that is).

Frankly, the law of indefinite duration contracts is in disarray,” the lawyers for CVEC conceded in their petition to the Minnesota Supreme Court for review of the Court of Appeals decision that they lost.

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Minnesota Litigator has received reader feedback that Minnesota Litigator predictions are particularly fun reading.

This is likely because lawyers are generally, typically, and frustratingly circumspect and equivocal. Socially and informally, their answers to legal questions often seem to be “good question!,” “maybe so…,” “it depends,” “hard to say,” “I’d need to know more to have an opinion,” etc. So we suppose readers enjoy that we sometimes make unequivocal (if, sometimes incorrect) predictions.

And, in all modesty, we have done staggerlingly well in the prediction department with far more successful predictions than unsuccessful ones.

But there is one area where we give ourselves a failing grade: predicting “the next big wave” of civil litigation.

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Every year since 1894, as we head into coming school year, the United States of America has celebrated American workers.

These days, there are persistent, ubiquitous, and dire warnings that their days are numbered.

It seems that our jobs are less threatened by low wage off-shore workers, so feared over the past 30-40 years, than they are threatened by computer scientists and programs that they create to do away with the need for people — with their pesky family demands, illnesses, and other human failings — for countless jobs from astronauts to truck drivers.

Lawyers are far from immune from the threat of obsolescence. If you want to fight a parking ticket in the U.K. for example, from now on, you will probably go to this website before you will call a U.K. solicitor. And worldwide, you will probably take care of many legal matters via similar applications (forming companies, drafting wills, negotiating contracts, etc.).

So, take Labor Day off! Celebrate a day off and celebrate that you have a job (assuming you are one of the lucky ones). In years to come, the bitter irony is that many of us will not have the luxury of a job nor the treat of a day off.

Denny Hecker, a car dealership mogul turned convicted criminal (who might be back on the streets any day now), left a lot of people owed money.

Our government has several procedures for recovering money on behalf of creditors. One way is through bankruptcy. In criminal proceedings, another way is through orders for restitution.

As between the two, which one “trumps” the other?

The bankruptcy trustee in the Hecker bankruptcy seems to think the bankruptcy proceeding “trumps” a state’s restitution system…

 

ContortionistUpdate August 30, 2017: We recognize the futility of our efforts but another “unpublished” Minnesota Court of Appeals decision issued this week (as they do every week in ever-growing numbers, it seems). And, again, in our view, it highlights a misuse of this “non-precedential” status and is a disservice to Minnesotan legal consumers (Minnesota lawyers and their clients).

CorVascular Diagnostics is a Minnesota limited liability company (LLC) and a plaintiff in a lawsuit against one of the LLC members, Michael Talcott (and others).

The issue on appeal was whether Mr. Talcott was entitled to have the LLC pay his attorneys’ fees under Minn. Stat. § 322B.699.

Hennepin County District Court Judge Susan Robiner decided against Mr. Talcott. The Minnesota Court of Appeals, in an opinion by Judge Francis Connolly, reversed Judge Robiner’s decision.

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Update (August 28, 2017): Hypothetical: A Co. contracts to sell B Inc. lumber. A knew of B’s plan to chop this wood and sell it as firewood after the transaction. However, the contract only references price and quantity, not suitability as firewood. The lumber sold is “green” (unsuitable as firewood for 2 years) and B feels that A deceived B.

It might be difficult to prove fraud or intentional deceit. A could argue that it was unaware that B wanted to chop and sell the firewood right away. Or A could argue that B should have specified “fire-ready” if it required it.

Could B Inc. attack A Co. from a different angle with a claim of breach of the covenant of good faith and fair dealing? Could B argue, in effect, that A knew B was buying the lumber for firewood and had an implicit duty to disclose that the lumber sold was unsuitable for firewood for two years?

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Plaintiff Janice Hustvet sued Allina Health System because Allina terminated Hustvet from her job as an Independent Living Specialist (an “ILS”). Allina fired Ms. Hustvet because she refused to get vaccinated against rubella, which was a requirement imposed by Allina for ILS’s who work with immunocompromised people.

It appears that Ms. Hustvet was concerned about taking the MMR (measles, mumps, rubella) vaccine  because of various allergies she has although it seems that no doctor could be found to substantiate any of Ms. Hustvet’s concerns about the vaccine.

Hustvet sued Allina for “discrimination, unlawful inquiry, and retaliation claims” and she lost her case on summary judgment. (Congratulations to the lawyers at Felhaber Larson for the win.)

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OW! This is one ugly order.

The parties in this case have morphed the rules-driven process of a lawsuit into an unrecognizable kerfuffle fueled by mutual distrust and a paucity of reasonable compromise. The merits of the underlying dispute appear lost to the ether, while the parties struggle as if over a global conflagration on issues that well may not change the trajectory of either parties’ probabilities of ultimately prevailing and bringing this long-running litigation to a merciful close. The parties should not be recompensed for the consequences of such actions.

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Update (August 21, 2017): In this lengthy string of posts below, now spanning four years, we have lamented a often repeated phenomenon: business disputes where there are no actual disputes as to the facts and no actual disputes as to the law.

We wrote:

Apparently when commercial transactions of a certain magnitude — a large magnitude — go wrong, there just is no better way in this day and age. Businesses have to call in lawyers to settle up.

We discuss cases where one side says a machine it bought does not work; the other side says it does. All agree that, if it works, plaintiff loses. If it does not work, defendant loses.

In LEI Packaging v. Emery Silfurtun, et al., the egg carton moulding machine evidently did not work. But it took the plaintiff years and, undoubtedly six-figure legal fees, to finally get a judgment.

We hereby coin the term, “Zombie cases,” for such silly and expensive non-disputes. What we mean is that these cases are the proverbial walking dead. There is no genuine live dispute but the lawsuit lives on.

Zombie cases enrich lawyers, clog the legal system, and cause Americans to lose faith in our legal system.

“Are you telling me,” many angry clients have said to many lawyers,”I may have to pay you $X,000 dollars to get the obviously liable defendant to pay me the $Y,000 dollars he owes me? And $X,000 may exceed $Y,000? And so you’re suggesting that I take a settlement offer of 50% of $Y,000 when the obviously liable defendant owes me twice that????”

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