Visual artists in the United States, defined as people who create unique and original visual experiences in any physical medium, are to capitalism as hedge fund managers are to socialism.

You can argue there is a positive correlation if you like, but it’s much easier to argue the negative. Some would argue that the relationship between art and capitalism is literally antithetical: to monetize art is to degrade it, at best, and possibly to destroy it.

(Aside: note that “visual artists” is a difficult term to define and, by our definition, arguably excludes any maker of unoriginal experiences, therefore arguably excluding famous art of Andy Warhol, Marcel Duchamp, and many other works widely considered “art.”)

In short, it is almost impossible for visual artists (as defined here) to earn a living in our society, maybe because the very idea of a “market” for”art” lacks validity.

Bruce Munro, the creator of the work portrayed in the above image, is one of very few “successful” visual artists (defining “success” in a particular way, which some would disagree with strongly).

He calls his best-known works “Field of Light” and “Forest of Light,” describing them as “large-scale, immersive, light-based installations, and exhibitions.”

With this as background, one can appreciate the galling and bitter disappointment that Mr. Munro must have felt when he discussed an installation of his work in Boston, Massachusetts, with lucy [sic], a women’s active-wear company, only to have lucy break off discussions. Thereafter, lucy launched a light exhibition and advertising campaign in Boston, titled “Light Forest,” for which lucy apparently paid Mr. Munro not one penny.

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Photograph by Maura Teague

Some Minnesota Litigator posts appeal to a broad readership. This is not one of them. If you are not a trial lawyer, you should probably stop reading here.

The Schwendiman v. Arkwright patent infringement lawsuit started on April Fool’s Day, 2011.

Schendiman won a $2,624,228 jury verdict on October 18, 2017.

Although this is a significant amount of money for most of us, it might have represented a devastating setback for Schwendiman if Schwendiman had to pay for over six years of lawyering, experts, and so on, to recover $2.6 million (or a hard hit to the law firm if it took the case on a pure contingent fee)(or a less-than-hard hit on lawyers and clients, alike if there was a hybrid fee arrangement (part-contingent, part-discounted hourly)).

And the trial judge, U.S. Chief Judge John R. Tunheim (D. Minn.) rejected Schwendiman’s separate effort to be awarded its attorneys’ fees.

Could Schwendiman bump up its recovery by invoking Minnesota’s rather generous “prejudgment interest statute” (which yields 10% per annum)?

Judge Tunheim answered, “Yes.” (See here at p. 50-53.)

But 10% of what, exactly, and counting from when, exactly? Judge Tunheim awarded prejudgment interest of $1,915,328.00, nearly doubling Schwendiman’s recovery. But did he miss something?

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Free picture (Big brother is watching you video surveillance digital background) from https://torange.biz/fx/big-brother-watching-you-video-172970

Ms. Omarose Onee Manigault Newman (widely known as “Omarosa”) has been in the news lately promoting her “tell-all” book about her stint in the Trump White House (words whose juxtaposition will sadden and nauseate Minnesota Litigator for life).

In promoting her book, Omarosa has revealed that she surreptitiously digitally recorded conversations that she had, even in the White House situation room from which cell phones and recording devices are prohibited. This news comes only days after the public has learned that Trump’s personal lawyer, Michael Cohen, surreptitiously recorded telephone calls that he had with Trump.

We do not comment on the legality of Cohen’s and Omarosa’s recordings but we do take the occasion to highlight that undisclosed audio recordings are now pervasive in our society. In our personal and anecdotal experience, we are frankly stunned at the number of clients who are non-consensually recording conversations (on the telephone or in person). The rate has spiked upward dramatically in recent years. (And, woe to the lawyers who fail to appreciate fully that many of their clients are recording their every word.)

Is it unlawful?

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Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Update (August 16, 2018): Predictably, plaintiff’s counsel in the case described below want to keep the defense lawyers in the ring, or at least to avoid any delay caused by the lawyers’ attempt to thrown in the towel.

Update (August 10, 2018): Things have gone from bad to worse for Defendants, Geckobyte and R. Tiegen Fryberger, in the case described below.

Now their lawyers are seeking permission to withdraw from representing them. Will the lawyers get permission? Time will tell. As devout Minnesota Litigator readers know but others may be surprised to learn, although it is easy to ask for permission to withdraw from representation of a client, it is not so easy to get permission, at least in federal court in Minnesota (see here and here).

We lament this situation (involuntary representation) and we hope that Geckobyte and Fryberger’s lawyers are not collateral damage in this bloodbath, even if they were responsible for the rope-a-dope defensive strategy which seems to have failed.

Update (June 26, 2018): We saw this one coming. (Plaintiffs win on their motion for summary judgment, defendants lose on theirs).

Update (May 16, 2018): From the looks of it, Defendants Geckobyte.com, Inc., and R. Tiegen Fryberger did not enter the ring to win the match in their lawsuit in the U.S. District Court (D. Minn.). They were dragged into the ring. They do not appear to want to fight very much, if at all. On the other hand, they are obviously unwilling to forfeit the match.

As discussed in the original post (below), the Riddle et al. v. Geckobyte, et al., lawsuit is a common scenario in U.S. civil litigation involving small businesses: one business buys another and either they buyer protests that the purchased assets were not “as advertised” or the seller protests that buyer’s payment(s) were not made as promised (and often both). (These problems seem particularly common when the seller is to work for the buyer’s business and seller’s payout is based in significant part on post-sale business performance.)

In this case, Plaintiff is the seller, seeking to be paid for the business he sold to Defendant. Defendant’s defense seems to have been a variant of rope-a-dope, in which a fighter seems to take the opponent’s punches to tire him out, then slips out of passivity when his opponent is exhausted, to pummel the tuckered-out fighter. (See arguments on plaintiff’s summary judgment motion on defendant’s counterclaims here, here, and here).

Rope-a-dope, as the linked article points out, was a dubious and flawed strategy in real boxing. It seems worse in the context of civil litigation.

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For some time in U.S. politics, a large swath of the electorate concluded that Democrats and Republicans were like Coke and Pepsi, two versions of basically indistinguishable sickeningly sweetened corporate junk food.

We hope that the election of Republican Donald J. Trump over Hilary Clinton, his Democratic rival, has put an end to this over-simplified and wrong-headed thinking. Who leads makes a very big difference at every level of our political system.

Our elected officials make decisions that radically change our lives and those whom we all elect will radically affect what decisions made. To suggest that your life depends on who is elected is, in one sense, a gross over-dramatization but, in another important sense, it is simply the truth.

emergency-309727_1280Update (August 13, 2018): We introduced the neologism, “GOOTCH,” about three years ago (see below).

Chief Judge John R. Tunheim (D. Minn.) issued what, in our view, was a pretty strong GOOTCH Order last week on behalf of a LEVENTHAL pllc client.

Judge Tunheim dropped a few references to Rule 11 (in footnotes 1 and 4) — sure signs that a court’s displeased.

We’ve said it once and we’ll say it again:

Weighing the harm of the [anonymous on-line criticism], on one side, and the cost of a remedy (litigation) plus the prognosis for success (i.e., the likelihood of “winning” the litigation, whatever that might mean), on the other hand, is a tricky calculation. In light of the uncertainty and expense of civil litigation, in our view, the harm of the hate must be pretty serious to justify suing over it.

East Coast Test Prep LLC d/b/a Achieve Test Prep and Mark Olynyk, plaintiffs in the case that occasions this post, seem to have miscalculated badly.

Update (July 22, 2015): A GOMER is medical slang for “a patient in an emergency room who is not in need of emergency services.” GOMER stands for “Get out of my emergency room.” The legal analog is A GOOTCH (“Get out of this courthouse”). (more…)

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Let us all hope that the linked recent Court of Appeals decision against Rochester City Lines (“RCL”) is the terminus of this excruciating litigation road-trip.

RCL seems to have had a pretty sweet deal, a contract to provide bussing with the city of Rochester for 46 years. It is putting it mildly to suggest that RCL was unwilling to give up this relationship without a fight. The contract was put out for bid and RCL lost to another company but, with several years of on-going litigation, it went down swinging.

This litigation, over six years old, with a number of round-trips to the appellate courts. It almost seems like a bus of process.

We found footnote 3 on page 10 worth highlighting for the Court’s use of the somewhat obscure expression, “suppressio veri,” as in, “If that were the case, RCL’s attorney would seem to be guilty of suppressio veri…” (“suppression of the truth,” better known as lying? Or misleading by omission?).

The Court explains this concept by example: “It would be similar to a court asking someone, ‘Did you kill her?’ and the person responding, ‘I wasn’t there,’ when that person had in fact hired someone else to kill her.”

 

Minnesota Litigator has criticized mainstream media (the Star Tribune, mostly)  for their often repeated failure to link to complaints when they pull their news stories from complaints filed in courts (but, we also give credit when due, see here).

First, they are depriving their readership of a “deeper dive” into the allegations. Second, they rarely identify the lawyers in the articles, the authors of the complaints in most cases. This information interests many readers. Third, to us, it seems that journalists are concealing their articles’ reliance on pleadings, when their stories are almost entirely reliant on the pleadings but they do not link to their source.

But there are some good arguments in favor of NOT linking to pleadings, at least in some cases. As most lawyers know, pleadings enjoy an “absolute privilege” (total freedom from any claims of defamation) so it seems that, sometimes, linking to a pleading would literally and recklessly publish harmful falsehoods about a person or an organization (see, e.g., here).

Right or wrong, these thoughts came to mind when we noted the recent FDCPA class action complaint brought against the Bassford Remele law firm. (FDCPA = the Fair Debt Collection Practices Act.) That is, we wonder whether the complaint tells only a part of the story and, in doing so, paints a misleading picture.

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From time to time, our Minnesota Supreme Court surprises us by taking cases that, in our view, were plainly correctly decided by the Minnesota Court of Appeals.

This is the case with Larson v. Gannett Co., et al., a defamation lawsuit brought by Mr. Ryan Larson, who was incorrectly arrested and apparently charged with murder but was subsequently 100% exonerated.

In essence, Mr. Larson sued media companies for reporting on law enforcement’s bungled job arresting and apparently charging him briefly, an innocent man.

The Court of Appeals threw out Mr. Larson’s case against the media defendants holding:

(1) the fair-report privilege protected appellants’ news reports that accurately summarized and fairly abridged statements made by law enforcement at an official press conference and in an official news release; and (2) the district court erred in vacating the jury’s verdict that appellants’ statements were not false and in ordering a new trial.

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Steve Dupuis was president of a company in Memphis, Tennessee, where he made $600,000/year. He left that job to be the president of GATR Truck Center, near St. Cloud, Minnesota, for $350,000/yr plus deferred and equity compensation that would vest after employment of a set number of years.

Mr. Dupuis was obviously willing to take quite a pay cut.

We have to assume that Mr. Dupuis was not very happy in Memphis and/or he envisioned a steep rise in income after jumping over to GATR.

Unfortunately for Mr. Dupuis, after he took the job at GATR, he appears to have discovered (or he alleges) that Mr. Neitzke, GATR’s CEO, had been arrested for soliciting prostitutes, that Mr. Neitzke sexually harassed GATR employees, that Mr. Neitzke “over-financed” used truck inventory, and that Mr. Neitzke cheated sales-people out of commissions. Mr. Dupuis appears to have discovered Mr. Neitzke’s “severely damaged reputation” (to use his words) too late.

Mr. Dupuis resigned after about 1.5 years at GATR. He sued GATR for “fraudulent inducement.” In other words, he seems to suggest that Mr. Neitzke owed him a duty to disclose his alleged sleazy behavior and bad reputation. Mr. Dupuis lost.

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