Update (May 8, 2017): In the Sorin v. St. Jude case, covered here at some length previously, the court awarded Defendant St. Jude, the victor at trial, its costs last week (costs claimed: $49,354.24, costs allowed: $47,444.85).

At the same time, Sorin’s motion for a new trial, discussed below, is pending. In an earlier post, we predicted that Sorin would lose its motion for a new trial but Sorin’s reply brief in support of its motion is strong advocacy. It shakes our confidence in our prediction.

(Having said that, check out the number of Faegre lawyers on the signature block. At what point does the cost exceed the benefit of yet another talented lawyer’s input to a legal brief?)

Will Chief Judge John R. Tunheim (D. Minn.) be more swayed by Sorin’s effort to exclude evidence that Sorin itself proposed as evidence at trial, or by St. Jude offering evidence that St. Jude has strenuously objected to (and then used at trial), or, finally by the simple fact that ordering a new trial is a drastic and expensive measure to address one supposed evidentiary defect. Does a single bad call in a 9-inning game require a rematch?

(more…)

Update (May 5, 2017): Reading Sr. U.S. District Court Judge Richard H. Kyle, Sr.’s recent order on the issue of improper service of process in conjunction with the defendants’ legal brief in support of their motion to dismiss fills us with foreboding for the prospects of plaintiff’s audacious class action complaint based on his receipt of a prank telephone call.

Maybe we’re just cocky after our most recent successful Minnesota Litigator prediction but we’ll predict that this putative class action is no-go from the get-go.

(more…)

Mr. Mahendra Trivedi, the Trivedi Foundation, and the Trivedi Companies (Trivedi) claim to have performed 70,000 miracles around the world and, believe it or not, some people are skeptical.

Dennis Lang, a free-lance writer, wrote a story about the so-called Trivedi Effect and the Trivedi business, suggesting Trivedi’s busines is a sham.

Judge Robert Awsumb of the Ramsey County District Court threw Trivedi’s case of defamation against Lang out, ruling that Trivedi was a “limited-purpose public-figure” and Mr. Lang was a “media defendant” based on his on-line publication of seven freelance articles. The Minnesota Court of Appeals affirmed in part but reversed in part.

(more…)

jack-and-the-beanstalk-1473274899vysUpdate (May 2, 2017): In the dirty seed code war, discussed below, we chalk up another successful prediction of Minnesota Litigator. U.S. District Court Judge Wilhemina M. Wright (D. Minn.) stayed the lawsuit in favor of arbitration.

So Plaintiff’s lawsuit was a seven month, plus two weeks, plus two days detour in federal court — “unfortunate and destructive for both sides (except for the hourly billing lawyers)” (quoting our own earlier post).

Update (December 2, 2016): This post is unsolicited grandstanding about the just, fair, and proper application of U.S. contract law.

Here’s the deal: there is something fundamentally unfair about the “click-through” contracts that we all experience when we make consumer on-line purchases, sign lengthy rental car contracts, and receive small print, light-gray inked disclaimers on the backs of receipts, plane tickets, and the like. The small print is literally impossible (and I use “literally” in its real sense) for many contracting parties (that is, retail consumers) to read and understand.

As to the “micro contract terms” in the small print, any suggestion that these consumer warnings are contracts in the strict sense (that is, that they involve an offer, acceptance, consideration, mutuality of obligation, competence and capacity) is an illusion. Assuming that consumers read and understand the fine print denies reality; to the extent our law is premised on this assumption, it is indulgent and self-serving fantasy. And the result is that such terms are coercive, since in order, say, to rent a car, the consumer has no choice but to sign the supposed agreement including the micro contract terms that the consumer cannot realistically have read or understood.

On the other hand, it seems far more fair and important to hold so-called “sophisticated parties,” otherwise known as businesses or business people, those who engage in repeated and specialized transactions in the course of their work, to the fine print in their transactions. For one thing, we can and do recognize that these are businesses. Businesses are more often in a position to hire lawyers to look after their interests, and specifically, to vet contracts. Even if their lawyers let them down or if they cannot afford a lawyer, businesses cannot starve to death or be homeless as a result of a bad deal. At worst, they go out of business. Again, they’re businesses, so we should not protect them from market forces. Competitors all have to abide by the same rules. So, to the extent we let businesses off on “the fine print defense,” we are setting up incentives for businesses to ignore contractual terms and penalizing others who agree to abide by the terms.

This is all by way of saying that I will again predict that Plaintiff/Farmer Nielsen will not be allowed to argue in federal court that his soy beans had clean coats. Plaintiff/Farmer Nielsen, I predict, will be held to have agreed to have the decision go to arbitration under the Trade Rules of the National Grain and Feed Association (NGFA)notwithstanding his lawyers’ dogged efforts to keep his case in court

Update (October 31, 2016) (under the headline, “Silence Can be so Expressive; One Word Even More?”): I am feeling more optimistic about my prediction in the post below (that the lawsuit mentioned will be stayed in favor of arbitration), having read the defendant’s reply brief in support of its motion to stay the case in favor of arbitration, filed late last week.

The plaintiff in the case blew past the deadline for a response to the defendant’s motion, so the motion is unopposed. The Court is not obligated to grant motions that are unopposed, but silence is audible.

And I appreciate the Defendant’s characterization of a plaintiff’s memo as “cannibalizing” the plaintiff’s complaint. One word, vivid and succinct.

Update (October 5, 2016) (under the headline: Beans, Battles, & Beyond): The defendant has moved for dismissal of the bean battle discussed recently and below, based on an arbitration agreement pursuant to the Trade Rules of the National Grain and Feed Association (NGFA). I will go out on a stalk and predict that we’ll be saying bye-bye to the bean battle in days to come. That is, I predict defendant Grain Millers will get this dispute thrown out in favor of arbitration.

Who’s better suited to decide whether “dirty seedcoat” was a legitimate reason to turn down Farmer Nielson’s product or a ruse, a federal district court or three arbitrators — here “employees, active partners, principals, officers, or directors of Active and Associate trading members…selected based upon their personal experience in the type of trade practices or questions involved in the case“?

Original post (September 21, 2016) (under headline, “Dirty Beans or Dirty Bean Buyer?”): 

The soybeans being sold under this contract are intended for use as human food and shall be free from corn, black nightshade, peas, moldy and/or green soybeans, split seedcoat, dirty seedcoat, purple mottling, or stained seedcoat, off type soybeans or any other contamination deemed undesirable by the BUYER, in its sole determination, and fall within the Contract Specifications as listed on the front of this contract, unless otherwise provided for by the BUYER in writing.

Farmer Joshua Nielson (“Plaintiff”) has sued Grain Millers, Inc., an Eden Prairie, Minnesota-based bean buyer. Nielsen argues that contracts that allow the bean buyer to reject beans “in its sole discretion” (on account of “dirty seedcoats” and the like) are “illusory contracts.” In other words, if there is no implicit requirement of good faith or veracity of the buyer’s bases for blackballing beans, these are not true contracts. The buyer is, in effect, agreeing to and committing to nothing in exchange for the sellers’ commitment to deliver a hill of beans.

soybean-usdaAs I read Plaintiff’s prolix, long-winded, verbose, argumentative, discursive, rambling, drawn out, lengthy, protracted, and seemingly interminable (really, only 47 pages) class action complaint, it seems that the point (oddly never briefly or plainly pled in the complaint although court rules specifically require brevity and plain speech ) is that Nielsen agreed to grow non-GMO (genetically modified organism) soybeans in reliance on Defendant Grain Millers’ agreement to buy them but then Defendant Grain Millers walked away from Plaintiff’s beans using a made-up excuse:  “dirty seed coat” (see, e.g. Complaint at Para. 6) allegedly found in one “small delivery request…rejected by the Japan buyer” (Complaint, Para. 89, p.32).

As with so much commercial litigation (see, for example, disputes about buying sugar, about a pasta-boxing machine, and about an egg carton moulding machine), this case may have a false foundation. In all too many commercial disputes, all of the parties know from the get-go whether buyer and seller had a deal, whether the products met specifications, or whether, in this case, buyer really rejected seller’s beans due to their dirty coats. Maybe Grain Millers just couldn’t find any downstream premium non-GMO bean buyers at a profitable price to make the deal work.

Even when the parties and lawyers know (but one side won’t admit) that a purported contract breach excusing performance is pretextual, this kind of commercial dispute can drag on, can be expensive, and, like some protracted divorces, they can be unfortunate and destructive for both sides (except for the hourly billing lawyers).

 

Several years ago, Minnesota Litigator took the position that no lawyer should ever go to trial alone. This might have seemed paradoxical to some readers, coming from LEVENTHAL pllc, a solo lawyer civil litigation firm since its birth, one sunny day back in October, 2010. But, for every trial we have had, LEVENTHAL pllc has teamed up with co-counsel, so we might be incorrect but at least we have been consistent.

(Many excellent trial lawyers disagree and think a single lawyer can acquit him or herself just fine at trial. The talented and successful Ashwin Madia, for example, has told us he feels this way. Who knows? Maybe he’s right. Maybe we are. This, and so many other questions that we all answer every day, cannot be answered definitively, at least not without a lot of carefully compiled and properly analyzed data, which very few of us have (or know how to analyze)).

Suffice it to say, LEVENTHAL pllc, as of today, is a two lawyer operation. Nice to have someone covering the backside, as we climb out of the trench into the hail of verbal ordnance. LEVENTHAL pllc, as of today, has a new lawyer and therefore has doubled in size. A more formal introduction to follow in days to come.

Fair Isaac Corporation (“FICO”) is a Delaware corporation with its HQ now in California (and, before that, with its HQ in Minneapolis (2004-2013)).

Callcredit Information Group Limited is an English company with its headquarters in the United Kingdom and offices in Japan, Lithuania, China, and Dubai.

Michael Gordon left FICO to become Callcredit’s CEO and, allegedly, misappropriated FICO confidential and proprietary information and allegedly did other things that violated his obligations to FICO. So FICO sued Callcredit and Michael Gordon in Minnesota. Mr. Gordon, in his agreements with FICO, had agreed that he could and would be subject to jurisdiction in Minnesota in the event of litigation.

In response to FICO’s complaint, Callcredit filed a motion to dismiss for lack of personal jurisdiction. The Hennepin County district court (Judge Daniel H. Mabley) denied Callcredit’s motion to dismiss, concluding that, even though it was not a party to the FICO/Gordon agreements that specified Minnesota as a forum for litigation, Callcredit had consented to personal jurisdiction in Minnesota pursuant to the “closely related” doctrine.

(more…)

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

The previous post touched on the challenge of setting a dollar amount for sanctions. This week, we also note a six-year long civil lawsuit (and counting), which has been up to the U.S. Court of Appeals for the Eighth Circuit not once, but twice.

Maybe the fight about the appropriate measure of damages will result in the extraordinarily rare trifecta, a thrice-appealed case?

Here, linked, is one side’s argument for why the other side’s expert damages opinion fails.

Here, linked, is the other side’s argument.

The fight is over whether one can use a “reasonable royalty rate” as a measure of damages for breach of a non-disclosure agreement. The misappropriation and exploitation of someone else’s confidential information is one of many wrongs where the harm — the damages — defy our ability to measure accurately.

 

As anyone who likes to think about words and the English language will agree, “sanction” is an odd word.

It can mean its opposite as in “The N.F.L. sanctioned the Make-a-Wish Foundation event” vs. “The judge sanctioned the N.F.L. lawyers.”

One sentence uses “sanction” to mean “officially permit” or “approve.” The other means a “penalize,” “punish,” or “deter.” (Word nerds call such words “Janus words,” “contronyms,” or “auto antonyms.” Another example is “screen,” which can mean “to show,” “to examine,” or “to conceal”.)

The word “sanction” standing by itself is confusing enough. Now the U.S. Supreme Court tells lawyers that a sanction, as it thinks of the word, at least, is not “punitive in nature.” A court sanction, they say, is compensatory according to Goodyear Tire & Rubber Co. v. Haeger, a unanimous decision of the U.S. Supreme Court last week.

(more…)

Scott Richardson, a third-generation Austin, Minnesota lawyer, is turning 70 years old this year and he’s retiring from the practice of law. He wrote about the experience in the April issue of Bench and Bar, the Minnesota State Bar Association magazine and gave his fellow solo/small firm lawyers valuable and practical information, difficult if not impossible to find anywhere else.

But it might be difficult reading for a solo or small firm lawyer. Mr. Richardson’s article goes through the tedious, time-consuming, expensive, and risky process of “winding up,” the return of client files, the transfer of client matters, the things that solo and small firm lawyers have to deal with (more or less by themselves) and large law firm (or in-house lawyers) don’t. Mr. Richardson describes the postal expense, the shredding expense, the storage expense, and the issue of malpractice insurance coverage in years following retirement…

All work and no pay. No retirement party. No gold watch.

(more…)

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

It must have been a pretty challenging 2017 Tax Day for Mr. Lapidus, an accountant. Tax Day and the days leading up to it are a bear for all accountants. But, along with the crunch of filings, Mr. Lapidus was also socked with multi-million dollar liability on 4/14, in a lawsuit brought against him by his former partners at the Lurie accounting firm.

Mr. Lapidus was represented at trial by famed Minnesota trial lawyer, Mike Ciresi (so that undoubtedly did not come cheaply). On the other side, highly respected Maslon lawyers, Bill Pentelovitch and Martin Fallon, represented Lurie.

Hennepin County Judge M. Jacqueline Regis tagged Mr. Lapidus with over $2 million in liability, ordered his Lurie retirement benefits be cut off, ordered that he pay back some retirement benefits already received, and  ordered him to cough up 25% of money that Mr. Lapidus had been paid by Lurie clients, allegedly in violation of a non-competition agreement he had entered into.

Mr. Lapidus (and a number of his clients) were apparently victims of the Bernie Madoff Ponzi scheme. It seems possible that Mr. Lapidus has taken at least a few significant risks, in the vain hope of high returns, with disastrous results. On the other hand, as Minnesota Litigator readers know well, appeals can lead to reversals. This should temper both sides’ celebration and humiliation.