Update (June 8, 2018): Minnesota Litigator is proud of its accurate predictions but we also own our botched predictions. We got a recent prediction way wrong.

In Glacial Plains Co-op v. Chippewa Valley Ethanol Company, the primary case described in earlier posts, below, the issue was whether a contract that expressly provided that it had “indefinite” duration should be construed as being a contract without any end time (i.e., a perpetual contract) or whether it should be deemed “terminable by either party after a reasonable amount of time.”

This week, the Minnesota Supreme Court reasoned, “we construe ambiguous language regarding duration against perpetual duration.”

The Court continued, “the use of the word ‘indefinitely’ creates uncertainty as to whether the contract is meant to be of indefinite duration or perpetual duration.” Because of the policy against perpetual duration and the view that the language in the contract was ambiguous, the Court found that the contract that provided expressly for an indefinite duration could be terminated by either side “after a reasonable period of time.”

(Though we predicted the decision wrong, we think the decision is right, though a bit confusing as written. We’d propose a slight revision, “the use of the word ‘indefinitely’ creates uncertainty as to whether the temporal term of the contract is (a) ‘infinite,’ that is, intending no end-date ever, or (b) ‘undefined,’ that is, not including an end-date but not foreclosing one either.”)

Finding the contract terminable after a reasonable amount of time, the next question was what’s “a reasonable amount of time”?

The Supreme Court dodged answered that question: “A ‘reasonable time’ is determined…by the individualized circumstances surrounding each case.” So good luck figuring that out. Best to avoid the issue by hashing out a term of a contract or making it crystal clear that the parties intend for the contract to have no end date ever.

Practice pointer: Although the Minnesota Supreme Court went out of its way to say that it is not requiring the use of a “magic word” — PERPETUAL — you probably want to use such a word if you are drafting an agreement that you wish to have no end.

If you simply agree, “I will pay you $X and, in return, you shall permit me to do/to use something ‘indefinitely,'” your days might very well be numbered.



Attribution: https://goo.gl/zVNer1

Update (June 6, 2018): We commented recently on the closing of Bar Louie in Minneapolis (see below), openly questioning how this pertained to “News and Commentary about Minnesota Civil Litigation,” which is our subject matter focus.

Apparently, we were prescient. Linked here is a complaint against Bar Louie filed this week in U.S. District Court (D. Minn.). According to the allegations in the thorough and well-written complaint, Bar Louie appeared to have mastered the art of over-serving alcohol and providing no security for the foreseeable bar-fights that would then ensue. And now a Bar Louie patron is paralyzed from the waist down for life, having been shot in the back by another bar customer.

Original post (May 17, 2018) (under the original headline: Good-bye and Good Riddance to Bar Louie in Uptown): About two years ago, we posted about a lawsuit arising out of a bar-close skirmish where “dress code enforcement” seemed troublingly selective and racially motivated at a downtown Minneapolis bar.

We noted in the post, in passing, that Bar Louie in Uptown also had a dress code that seemed to be “code” of a different sort (i.e., thinly veiled racism).

This week, we learn that Bar Louie is shutting its doors for good. Buh-bye! Some might ask why this is appropriate subject matter for Minnesota Litigator, as it is neither “news” nor “commentary” about Minnesota civil litigation.

Maybe not.

But a tremendous amount of U.S. civil litigation (and criminal law, as well, of course) has roots in the country’s long terrible history of racism. From time to time, perhaps it warrants notice that we might be making some progress, slowly but, we hope, surely, in eradicating this noxiousness from our midst.

For years now, Minnesota Litigator has tried to catch the next big wave in civil litigation. We have tried to predict growth in particular areas of civil litigation and we kind of caught this one (September 5, 2017: He Sad/She Sad, The Next Big Wave?). Hang ten. Kowabunga.

Hello, hello, hello, how low
Hello, hello, hello, how low
Hello, hello, hello, how low
Hello, hello, hello

With the lights out, it’s less dangerous
Here we are now, entertain us
I feel stupid and contagious
Here we are now, entertain us
A mulatto, an albino, a mosquito, my libido…

As young humans mature to adulthood, we know their bodies and brains go through enormous change, arguably unlike (and more intense) than any other stage in a person’s life. For some years now, scientists (and the rock band, Nirvana) have taken the position that adolescent cognitive development is a unique and sometimes tumultuous phase in a person’s life.

Schools (and colleges), of course, are the bomb factories where our kids’ hormonal fire-works are set off. Consider the fix that St. Paul Conservatory for the Performing Arts is in.


Update (June 5, 2018): In last Thursday’s post, below, we mentioned Life Time, Inc.’s “bringing the hammer down” on former employees for violations of their non-competition agreements (and related alleged wrong-doing). Life Time prevailed on its motion for a preliminary injunction yesterday. Congratulations to Life Time and its lawyers, Patrick Martin and Stephanie Willing from Ogletree Deakins’ Minneapolis office.

Original post (May 31, 2018): In one federal courtroom in Minnesota this week, eminent civil litigators have been doing battle in a high stakes “bell-wether” trial, as part of the Bair Hugger Forced Air Warming Products multi-district litigation against defendants 3M and Arizant. (We previously covered an aspect of the litigation (e-discovery) here.) Late yesterday came the news of a defense verdict (a verdict in favor of 3M) Congratulations to the entire defense team!

On the plaintiff’s side, among many other lawyers, are Michael Ciresi, Jan Conlin, and Genevieve Zimmerman. On the defense side, among many other lawyers, are Jerry Blackwell and Corey Gordon. (Here are some pretrial letters to the court on trial logistics (here and here)). All of these prominent Minnesota civil litigators spent large parts of their professional lives at Robins Kaplan before leaving that law firm. In other words, the Bair Hugger trial is a Robins Kaplan alumni party! (So where was my invitation?)

Poor Robins Kaplan!

Robins invested years and untold sums of money training and supporting all of these lawyers. Then these lawyers all moved a few blocks away, taking Robins clients with them, and, even worse, taking billions of terabytes of Robins-nurtured talent.

Law firms have no way to combat such “brain drains” because professional ethics rules prohibit non-competition agreements. The policy justification behind this rule is that restrictive covenants (i.e. non-competition agreements or “non-competes”) not only limit attorneys’ professional autonomy but also limit the freedom of clients to choose a lawyer.

Ironically, in another federal courtroom in Minneapolis/St. Paul this week, lawyers for Life Time, Inc., the home-town fitness powerhouse, are trying to bring the hammer down on eight former Life Timers for allegedly violating their non-competes (and other contractual commitments) (and here is the response of the former LT employees).

Apparently, what is good for the goose is not so good for the lawyer.

Is this sacredness of the attorney-client relationship, which bars lawyers’ and law firms’ restrictive covenants antiquated? Why are lawyers so protective of their professional autonomy and their clients’ right to choose a lawyer in a culture where, aside from lawyers, we seem so solicitous of employers’ “right” to handcuff other employees?

As a former large firm lawyer myself (at Robins Kaplan, among others here in town), I fully appreciate that I owe a great debt to the large firms. They gave me such great training, resources, and connections. I owe them a lot but I owe them no money. I have personally and directly benefitted from the bar on the application of restrictive covenants to lawyers.

But do these restrictions on restrictions of lawyers ultimately hurt the public? If not, what is the rationale for allowing them in so many other areas of commercial life? Why are professional trainers entitled to less autonomy? Why are their clients less entitled to stay loyal to their trainers?




Update (June 4, 2018): ATTENTION 2018 WEDDING PARTICIPANTS: Sneaking off to a lawyer repeatedly before the wedding day and then confronting your fiancé with a “prenup” while guests are en route to your destination wedding will likely not fly in Minnesota.

To go all legal on you: In the Kremer v. Kremer case, discussed below after the court of appeals’ decision over a year ago, the Minnesota Supreme Court released its opinion last week on the relationship between Minn. Stat. 519.11, a Minnesota statute governing antenuptial agreements, and the common law as applied to antenuptial agreements that address both marital and nonmarital property and were executed after August 1, 1979 (that is, the effective date of the statute).

The Minnesota Supreme Court teaches us that the statute, Minn. Stat. 519.11, only covers non-marital property. “The only reasonable interpretation of [the statute] is that the validity of provisions regarding marital property remain [sic] governed by the common law.”

The Supreme Court goes on to analyze whether the antenuptial agreement at issue in the Kremer case concerned marital or non-marital property. The majority of the court found that the agreement, by referring simply to “property” in a key clause supposedly “ma[de] it difficult for [the Supreme Court] to tell whether [the Agreement’s] provisions purport to distribute nonmarital property.” Opinion at p.16. Based on this determination, the Court went on to evaluate whether the Kremers’ antenuptial agreement met the common law requirements of “procedural fairness,” that is, whether it was “equitably and fairly made.” (Of course, it was not, as the trial court, the court of appeals, and the Supreme Court all found.)

Justice G. Barry Anderson, dissenting, would have reversed the court of appeals decision and held that the Kremer antenuptial agreement met the statute’s procedural fairness “safe harbor” ( “full and fair disclosure of the earnings and property of each party, and the parties have had an opportunity to consult with legal counsel of their own choice”) (which the Kremer antenuptial agreement apparently did).


Grass Single Nozzle 1Update (May 30, 2018): We learn this week that the defendant City of Gilbert in the lawn mower clipping/alleged police misconduct case, described below, has apparently satisfied its cost judgment of $7,301.87 against the unsuccessful plaintiff in this small-town dust-up of alleged police officer/citizen (mis)conduct.

This post should serve as a seasonally appropriate reminder about the perils of grass clippings. It is also a reminder to plaintiff’s lawyers, who must always warn their clients, even “pure contingent fee” clients, that their worst case scenario can be worse than a recovery of zero dollars.

Update (February 6, 2015): The decision is in: total defense win in the Eveleth grass clipping case, described below. Congratulations to defense lawyers, Pam Vanderweil and Anna Yunker of Everett & Vandwerweil.

Update (January 27, 2015): Consider these facts: (1) There was a relatively innocuous complaint called into 911 of a rural police force about grass clippings being piled on a public roadway on a hot summer day outside of Duluth, Minnesota, (2) the investigating police officer ordered a citizen to stand by the police car while the issue was being investigated, (3) the citizen, allegedly afraid of the officer, defied the officer and walked toward her house, and (4) the police officer, whose order has been ignored, grabbed the citizen, pulled her toward the police car, hand-cuffed her and arrested her.

The parties dueling proposed “findings of fact and conclusions of law” (“FOFCOL”) (here and here) are roughly in agreement as to these facts. The respective parties’ FOFCOLs diverge violently as to many other details of that hot July 2012 afternoon skirmish.

Chief U.S. District Court Judge Michael J. Davis (D. Minn.) had to sit through this trial. Now he must immerse himself in the weeds of this turf battle and decide whether Officer Engelstad or Lanette Heitzman was out of line…


Update (May 27, 2018): We looked through past Minnesota Litigator Memorial Day posts and, over the years, the one below seemed the best to re-circulate this year.

Many of the other prior years’ Memorial Day posts were more closely tied to the true origin of the holiday — the solemn remembrance of those who have fought and died for our country. And it’s always good to remind ourselves of that, the real purpose of this late Spring/early Summer holiday.  But we enjoy the “blast from the past” of the 2011 post and it has a “legal hook,” as well.

Original post (May 27, 2011): Try to imagine how much money you could extort from a Hollywood studio by halting the Memorial Day Release of their blockbuster movie (that’s a $100 million dollar gambit).  It seems that counsel for tattoo artist S. Victor Whitmill entertained that fantasy but it was not to be.  U.S. District Court Judge Catherine D. Perry, in the Eastern District of Missouri, cleared the way for us all to enjoy Hangover II this weekend.

Warner Brothers, however, is not done with Mr. Whitmill, however.  It seems he (and his lawyers?) might become millionaires over this after all

Rumplestiltskin is a bizarre fairy tale that begins with a very difficult situation for a young woman. (Scholars have suggested that the tale is over 4,000 years old, which might explain how weird it is. Very old stories are often very weird.) The young woman’s father, a miller, boasted that his daughter could convert straw into gold. A powerful person (a king, in fact) decided to incarcerate the unfortunate young woman, threatening to kill her unless she converted straw into gold for him. She managed to do so with a little help (with strings attached, of course) from an ugly magical creature.

We will not recite the entire story (you can refresh your recollection here) but we were reminded of it in reviewing the recently filed lawsuit of Ameron Water Transmission Group v. Carstensen Contracting, et al.

Ameron’s complaint suggests that it was put in a tough spot like the miller’s daughter, being required to meet contract specifications that were “voluminous, repetitive, confusing, and contain many errors including misspellings, bad grammar, and incorrect references” (Compl. Para. 37) and being required to perform validation testing that was “highly vague, confusing, and defective” (Compl. Para. 47). Consequently, Ameron has brought a lawsuit seeking a judicial declaration that it cannot be bound by its adversaries’ impossible contractual terms.


Update (May 16, 2018): Registration closes on Friday, May 18.

Original post (April 4, 2018): Minnesota litigators: Mark your calendars for a valuable CLE by the Minnesota Chapter of the Federal Bar Association (May 24, Downtown Minneapolis (IDS)).

Register here.

Why? Check out the detailed agenda here. What do you see? Truly cutting edge legal and legal/techno issues:

  • cell phone forensics
  • the rising tide of hate crime
  • cryptocurrencies
  • arbitration tips for litigators
  • trial tips in the days of vanishing civil trials
  • technology and privacy
  • U.S. Supreme Court review by U.S. Mag. Judge Kate Menendez (D. Minn.) and Aaron Van Oort of Faegre Baker Daniels.

And the list goes on.

Speaking of Judge Menendez: here is a bit of trivia to impress your friends and family: what husband and wife have both argued before the United States Supreme Court? Answer: U.S. Mag. Judge Kate Menendez and her husband, Dan Rogan Sr. Assistant Hennepin County Attorney.

Follow-up question for any U.S. Supreme Court historians out there: is this the first and only example of married U.S. Supreme Court advocates?



When I started practicing law, I thought that all legal matters started with a complaint and an answer, then proceeded to trial, with a judgment, and then maybe an appeal.

Come to find out that there’s this whole category of “special proceedings” that are different.

Special proceedings usually start with a petition or a motion, not a complaint.  And they do not proceed the same way.  There may or may not be any right to discovery.  There may be no right to a trial with witnesses.  The timetables may be different.

Appendix A to the Minnesota Rules of Civil Procedure has a partial list of special proceedings.  The list includes some commonly used mechanisms, such as probate matters, condemnations, and tax proceedings.  Modification petitions in family court and arbitration matters in district court are akin to special proceedings. The list of special proceedings in Appendix A also includes some odd proceedings that you won’t run into too often.  Like “actions on orders of the state fire marshal” and “actions against boats and vessels.”

A separate provision of the appellate rules deals with appeals from decisions in special proceedings.