Update (February 10, 2018): In the face of Edina High School’s motion to dismiss, it looks as if the Edina High School Young Conservatives Club, having made its publicity splash with their lawsuit, will now quietly slink away in a quick settlement.

Original post (January 26, 2018): Following up on Monday’s post, we got Edina High School’s (EHS) memorandum of law in support of their motion to dismiss Plaintiffs’ complaint this week. As is often the case, the memo enriches our understanding of the claims and defenses in the lawsuit. Before reviewing the memo, we only had the Plaintiffs’ allegations.

In this case, EHS’ response makes the Plaintiffs look foolish.

Plaintiffs allege that their student club was terminated because it refused to comply with the mission, values, and goals of the school. However, Plaintiffs admit that they did not apply to become an official student club, despite the fact that the District had aproved this club in previous years and suggested that they form a school-sponsored club for the 2017-2018 year.

This comes as something of a surprise. Plaintiffs claim their club was terminated but it turns out that they self-terminated. EHS also points out that the EHS policy that Plaintiffs object to is mandated by a state statute.

A school district or charter school that has a student handbook or school policy guide must include a statement that anyone who does not wish to participate in reciting the Pledge of Allegiance for any personal reasons may elect not to do so and that students must respect another person’s right to make that choice.

As EHS points out in its brief, seems like Plaintiffs’ beef is with the state, not the school. And it “appears to be
politically motivated rather than based on applicable law.”

We strongly recommend that anyone interested in First Amendment issues in the context of our public school system read the memorandum. You might learn something.

Update (February 9, 2018): We have covered Naca v. Macalester at some length and the conduct of Plaintiff’s attorney, Mr. Peter Nickitas. The way this case has been prosecuted might yield many useful practice pointers in how NOT to practice law in U.S. District Court.

The Court [(U.S. District Court Judge Patrick J. Schiltz, D. Minn.)]…finds that Nickitas has unreasonably and vexatiously multiplied these proceedings and that Macalester should not have to bear the cost of his violations. Accordingly, the Court orders Nickitas to pay $1,000 in attorney’s fees to Macalester no later than March 9, 2018.

From our perspective, the Naca lawsuit has seemed extraordinarily weak from the get-go but Macalester College has been forced nevertheless for about two years now. The Court considers $1,000 “to be a reasonable estimate of the fees that Macalester has incurred as a direct result of Nickitas’s violations.”

We suspect that Macalester might estimate the number to be somewhat more than that but they might also have a broader view of the scope of Mr. Nickitas’ unreasonable and vexatious conduct.


WhisperingUpdate (February 9, 2018): If you are late to the game, you (and all of us) must confront the painful truth: the “world-wide web” is a world-wide fetid cesspool of information, misinformation, distortion, and propaganda.

Lawyers and all people are vulnerable to unjustified and unfair personal attacks. The cost of disseminating defamation has never been lower. Even ignoring that the punishing cost of legal remedies make them beyond the means of most people, there is a serious question of whether one can ever recover fully from widely spread vicious lies in the digital age.

In the original post below, we touch on the complex issue of lawyers’ reputations and the particular challenges they face in establishing them and protecting them.

As it turns out, we are not the only ones focusing on this problem.

Legal ethicists nation-wide have been grappling with rules for lawyers in responding to client complaints (or more likely, former client complaints). This is particularly important with the rise of social media and the internet. Lawyers’ hard-earned reputations can be badly damaged by false and public accusations of wrong-doing or malfeasance (professional negligence, that is). Under many ethics rules governing lawyers’ obligations to keep client information confidential, the rules effectively prohibit the lawyers from responding to false allegations.

Here, linked, is Rule 1.6, the Minnesota ethics rule guiding lawyers on their duty of confidentiality to their client and former clients (setting out the rule and exceptions to the rule). It is subject to criticism because the language is confusing and unclear.

Here, linked, is a controversial Minnesota Ethics Opinion (Opinion No. 24) concerning Rule 1.6 elaborating on the scope and reach of the rule. It warns lawyers about responding to public criticism, but it gives little guidance.

And here, linked, is a proposed amendment of Rule 1.6 (and notes describing the history of the issue). The proposed new rule seeks to clarify the language in the rule and give lawyers more guidance about what public client criticisms they can and cannot respond to (and some guidance as to how they might respond if they choose to).

We will see how this proposed rule change fares.


marriage-734617_1920 (1)Update (February 8, 2018): As discussed below and in other posts, the statute of limitations for legal malpractice cases in Minnesota is six years but “when the clock starts” — the starting time is for the six-year statute — is often complicated.

On one extreme, some states have the so-called “occurrence” rule (when the negligent services were provided). At the other extreme, some states have the “discovery” rule (when the client knew or should have known about the negligent services). Minnesota rejects both of these rules and seeks a middle road. (See the linked decision at p. 18.) In Antone v. Mirviss, the Minnesota Supreme Court adopted the “some damage” rule (a “cause of action accrues when ‘some’ damage has occurred as a result of the alleged malpractice,” with “some damage” defined as “any compensable damage”).

Antone v. Mirviss involved a botched antenuptial agreement and the Minnesota Supreme Court ruled that the six-year clock started on Mr. Atone’s wedding day. In our view, some might reasonably ask what damage, exactly, did Mr. Antone suffer on his wedding day?

It seems the Court has a related but unstated rule: the “point of no return” rule. That is, “some damage” occurred to Mr. Antone at the “point of no return” — when Mr. Antone was “exposed to a claim upon a portion of any appreciation of his premarital property.” So Mr. Antone did not literally suffer “some damage” (or any damage) on his wedding day due to the botched antenuptial agreement. He was simply “locked in” by the bad lawyering as of that date. As of the day of his marriage, he definitively lost what he had gone to his lawyer to obtain — protection of assets that he would otherwise have kept if the lawyer had done a decent job on the antenuptial agreement.

The Minnesota Supreme Court did not overrule Antone this week in Frederick v. Wallerich, as we have advocated. Rather, it distinguished Antone over a dissent by two justices, Chief Justice Gildea and Justice Anderson. They argued that Antone’s rule applied and barred Mr. Frederick’s claim. In the Frederick case, however, the plaintiff returned to the lawyer after his marriage for legal services and the Supreme Court, in a majority opinion written by Justice Hudson, ruled that these later representations were within the six-year statute and could be the premise of Mr. Frederick’s legal malpractice claim.

Congratulations to plaintiff’s counsel, Patrick O’Neill!

But we will still have to grapple with the “some damage/point of no return rule,” which, in our view, is unfortunate. The rule is both imprecise and arbitrary. The discovery rule, in contrast, which has been the law in other states for more than forty years, is neither imprecise nor arbitrary. Other states that apply the discovery rule seem to be perefectly able to handle the supposed “open-ended liability” that Justice Gildea’s dissent seems concerned about. (Consider: CaliforniaTennessee. Hawai’i. Texas. Maryland. New Jersey, to name a few.))


Photo by Lenny Baker

Some citizens of Victoria, Minnesota did not like their local elected officials (that is, the mayor and certain council members) and they wanted the elected officials thrown out of office. These citizens brought several actions against these public officials for violations of Minnesota’s Open Meeting Law (“OML”), Minn. Stat. §§ 13D.01–.07.

The statute provides that one forfeits elected office if one is found to have violated the OML three times “in three or more actions.”

What if the unhappy constituents covertly accumulated or “banked” OML violations and brought three separate legal actions at the same time?

Wouldn’t this essentially short-circuit the policy of the statute that public officials get two “free passes,” and are only thrown out of office on the finding of third violation?


Update (February 7, 2018): When two parties stipulate and agree that breach of a contract will result in irreparable harm, can a court go against that stipulation and find, as a matter of fact, that one party’s breach caused no irreparable harm to the other party? That’s the issue in the case described below, argued yesterday before the Minnesota Supreme Court.

On the one hand, the harm caused by a breach of a covenant not to compete or a breach of the duty to maintain the confidentiality of information is obviously difficult (maybe impossible) to measure. Can’t parties hold down litigation costs up front by locking themselves into an agreement as to this point?

On the other hand, as Martin Chester, counsel for the defendants, argued, giving a stipulation of irreparable harm conclusive effect binds trial courts, which seems antithetical to established law governing courts’ exercise of equitable relief, and it is also antithetical to courts’ long-held view that restrictive covenants are to be enforced narrowly.

Edward Fox, St. Jude’s lawyer, agreed that the stipulation is not conclusive of irreparable harm. But, then, what is it? “Is it an admission, is it a prediction, is it an estoppel?” Justice Lillehaug questioned both Fox and Chester.

Minnesota Litigator prediction: the Minnesota Supreme Court will overrule the decision of the Minnesota Court of Appeals. If a trial court is not bound by an “irreparable damage clause,” a proposition that both sides agree to, the trial court can exercise its discretion to decide whether irreparable damage occurred and St. Jude loses (because this is exactly what the trial court did in St. Jude’s case).


In a recent post, we lamented the existence of “zombie cases” — cases where there seem to be no genuine disagreements either as to the facts or the law but the cases persist anyhow for one reason or another (often because a litigant is simply delaying the inevitable). One solution, we suggested, is the more liberal use of “fee-shifting,” or you might call it the imposition of “conduct-based attorneys’ fees.”

One might get some insight into whether this would be successful by considering family law cases, in which courts more frequently award conduct-based attorneys’ fees because there is a statute expressly providing for them.

A district court decision imposing such fees was recently affirmed by the Minnesota Court of Appeals.


Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

The refrain in The Message by Grandmaster Flash (1982) goes like this:

Don’t push me, ’cause I’m close to the edge/I’m trying not to lose my head/It’s like a jungle sometimes/It makes me wonder how I keep from going under…

Most if not all of us are pushed, we are tried, and we are stressed. Every day. By bills, deadlines, dilemmas, responsibilities, and pressures of all kinds from several different directions.

Sometimes, on top of it all, indecent and unpunished injustice piles on, as well.

One has to imagine that Alan Morrison was pushed over the edge when police showed up at his home because of unsubstantiated claims of child abuse of his daughter.

It seems that Mr. Morrison lost his temper.

Did that justify his being surrounded by several police officers, being put in a headlock to the point of losing consciousness and being tased? Was that a reasonable use of force?


The jurist Benjamin Cardozo (1870-1938) used the most florid speech of any famous American judge and his description of “fiduciary duties” has been quoted thousands of times because it is quirky and therefore memorable:

When it comes to people who owe other people a fiduciary duty (such as business partners), “not honesty alone but, the punctilio of an honor the most sensitive, is…the standard of behavior.”

To use more common speech, in affairs of business, in the market-place, courts generally try not to interfere with hard-nosed and sharp-elbowed business practices. The market-place can be rough and, to a large extent, our legal system is fine with that. However, if you enter into a partnership, if you go into business together, or if you owe someone else a fiduciary duty for any variety of reasons (as attorneys generally owe to clients, etc.), courts will step in if you dupe someone to whom you owe the duty. The duty involves loyalty, “utmost good faith,” “the obligation to disclose material facts, and the duty to act in an honest, fair and reasonable manner in the operation of the business.”

Plaintiff Kevin McGregor formed an LLC with Jessica Medlin to develop a building in the Linden Hills neighborhood in Minneapolis. She allegedly mispresented her finances to McGregor, she allegedly unilaterally passed information about the opportunity to third parties, and, Plaintiff alleges, Ms. Medlin scuppered the deal Plaintiff had so she and others (and not the Plaintiff) could capitalize on the opportunity. Ms. Medlin and her alleged fellow co-conspirators tried to get out of the case on summary judgment; that effort went badly for the defendants who lost on every claim. Trial is scheduled to begin in less than two weeks before Hennepin County District Court Judge Mary Vasaly.

The order denying defendants’ motions for summary judgment is 35-pages but it is worth reading in its entirety. The court’s analysis is detailed, thorough, and insightful. And the case highlights the importance of deep fact discovery. “be careful what u say and how u say it. I can’t get this linked back to me,” is a text message from Defendant Medlin to an alleged co-conspirator. (See here at p. 10.) At around this time, someone allegedly tipped off Plaintiff’s business partner that, “the competing group knew what we were up to before we did…” (see here, again at p. 10). We’re sure that it was no simple (or cheap) task getting this information but it might show itself to be extremely valuable information in the resolution, one way or the other, of this lawsuit.

The NFL zealously protects its IP so we had to create our own graphic

Minneapolis-St. Paul metro area residents are putting up with quite a lot of disruption due to the upcoming NFL championship football game and one has to wonder what we are getting in return?

In particular, what about Minnesota lawyers? Don’t they deserve a little bump, a little compensation, for putting up with this extravagant spectacle?

Of course, we do.

Maybe the recently filed lawsuit by Nomadic Entertainment Group against Dakota February Events, LLC will begin to make a dent in the trade imbalance between Minnesota lawyers and the National Football League?

The basic claim in Nomadic’s lawsuit is straight-forward but contruction-related litigation can be extremely document intensive and factually complicated.

The basic claim is that Nomadic was responsible for building an entertainment facility outside and near Mystic Lake Casino. Nomadic allegedly failed to meet a “completed by” deadline. Dakota pulled the plug on the venture, which will impose obvious and significant financial loss to Nomadic. Nomadic suggests that Dakota acquiesced in the delay and caused the delay; therefore, Dakota is liable to Nomadic for several million dollars.