Memorial Day ImageMinnesota Litigator wishes its readers a happy Memorial Day.

If I wish to harm a person’s reputation, what is to stop me from simply making things up (for example, that the person was involved in a far-reaching financial fraud, that the person engages in bizarre sexual conduct, that the person is a pathological liar)?

Obviously, such allegations are serious and harmful. They could form the basis of a lawsuit for defamation.

But here’s a twist. Imagine I say something along these lines to several people about John Doe and he sues me. Under Minnesota law, to defend against his claim, do I have to come up with evidence that my statement is true or does Doe have to come up with evidence that the statement is false?

Which makes more sense to you? Lawyers call this “the burden of proof” and lay people often do not appreciate how critical it can be — to be forced to carry the burden or to be relieved of the burden.


In our minds, many trial lawyers like to think of ourselves as warriors, clashing our weapons and out-maneuvering our adversaries. Some of us imagine ourselves in an epic struggle of good against evil, a pitched battle for nothing less than Justice — a transcendent reckoning, an adjustment or realignment of reality so that a wrong is righted and injury is undone.

There is sometimes great truth to our grandiose fantasies. We all know that U.S. lawyers have played enormous roles in the lives of many of their clients and for the benefit of society as a whole.

Unfortunately, though, parts of our job simply cannot be reconciled with our swash-buckling day-dreams. Word-counts, font choices, counting days and calendaring deadlines, on and on and on…. The appalling truth is that a major part of our professional lives is mind-numbing paper-pushing. Sometimes the Achilles heel of trial lawyers can be their failure to comply with a picayune point divorced from the drama that inspires us to do our work.


The Cardsharps, painted by Caravaggio

The lawsuit, Transport Drivers, Inc. v. Coca Cola Refreshments USA Inc. (“TDI” v. “CCR”), in the U.S. District Court (D. Minn.), is a generic and stunningly boring contract dispute (like many others, admittedly).

In a nutshell: A predecessor of CCR made a promise to a predecessor of TDI in 1985. CCR and TDI made later promises to one another in 2010. The issue is whether the 2010 agreement erased all of the obligations in the 1985 agreement or whether CCR’s ’85 obligations persisted until 2013. In 2013, TDI suffered a loss that, TDI argues, CCR agreed to cover back in 1985.

This past week, U.S. Judge Donovan W. Frank (D. Minn.) denied CCR’s motion for judgment as a matter of law. That is, Judge Frank ruled that CCR could not win its argument — that the 2010 agreement effectively obliterated any and all obligations under the 1985 agreement — based solely on allegations in the pleadings and the related contracts.

As this matter proceeds, the Court is hopeful that discovery will lead to greater clarity over the relevance of these competing agreements and the nature of the business relationships between TDI and the relevant Coca-Cola entities. For these corporate entities seeking to govern their business affairs by contract, it seems clear that this case will likely be resolved by an interpretation of contractual terms to which the parties mutually agreed. Going forward, therefore, the parties will have the obligation to clearly persuade the Court regarding which contract governs this dispute and whether the terms of that contract support a judgment in their favor. Because the answers to these critical questions remain unclear at this stage, CCR’s Motion for Judgment on the Pleadings is denied.

Though the dispute is deadly dull (that is, if you’re not the one tagged with or threatened by $500,000+ of liability or one of the people being paid by the hour to win the dispute), there is a hidden gem on a strategic issue that civil litigators come across regularly.

If you have a card up your sleeve — the proverbial “ace in the hole” — when do you play it?


Dallas Cowboy running back, Darren McFadden, has brought suit in Little Rock, Arkansas against Ameriprise, alleging that an Ameriprise financial adviser stole millions of dollars from McFadden. The Star Tribune reported the story late in the evening two days ago. The Minneapolis/St. Paul Business Journal picked up the story (noting and linking to the Strib’s story) and tweeted about it this morning.

Neither newspaper thought their readers might be interested in reading the complaint itself, I guess. Or they thought the $2.90 it costs to get a copy and the infinitesimal data storage costs 956 kilobytes might eat into their papers’ profit margins. Or they thought this is unfair to Ameriprise because complaints are one-sided, obviously biased, and potentially inaccurate allegations.

Whatever the case may be, once more, Minnesota Litigator fills the breach. Here, linked, is the complaint.

Katherine L. MacKinnon

[NOTE: Notwithstanding the auto-populated “by-line,” above and to the left, the post below is by an eminent Minnesota ERISA benefits litigator and counselor, Kate Mackinnon (pictured to the left, from her 2014 Minnesota Litigator profile).]


What does it mean that a Minnesota health insurer is bound by a decision of an external review organization? In Linn v. BCBSM, Inc. (Minn. Ct. App. 1/30/17), Mr. Linn purchased a private health policy from Blue Cross Blue Shield of MN (BCBSM).  He later developed chondrosarcoma of the thoracic spine.  His physicians recommended proton beam radiation therapy (PBRT).

But the BCBSM policy stated PBRT was medically necessary for chondrosarcoma affecting the cervical spine or base of the skull. However, for all other conditions PBRT was investigational and not covered.

BCBSM denied Mr. Linn’s claim as not covered.  Under Minn. Stat. §62Q.73, an insured who receives an adverse determination from a health insurer may seek review by an external review organization (“ERO”).  The ERO decides whether the care was “medically necessary” as defined by the statute.  That determination is nonbinding on the insured but binding on the insurer.  Minn. Stat. §62Q.73, subd. 8.

The ERO concluded PBRT was medically necessary.  BCBSM paid the claim.

Normally that would end the dispute.  But Mr. Linn claimed the policy also promised he would receive “timely” service.  He claimed the favorable ERO determination meant that BCBSM breached the contract when it denied his claim and thereby delayed.  BCBSM defended saying it followed the policy language and when the ERO reversed BCBSM paid.  Where is the breach?


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?


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.


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.