Update (July 9, 2018): “Why say something in three pages when you can say it in 30 pages?” is one of our oft-repeated go-to jokes about the work product of many lawyers (and some judges).

We heap derision on our fellow lawyers: they were vaccinated with a phonograph needle (which only old people now understand)…they own stock in paper companies, etc., etc.

We once sat before a federal judge who stacked all of the submissions on cross-motions for summary judgment in a case on his desk in his chambers and said to trial counsel (with apparent sincerity): “Why should I take all of the time to read all of this? It would be faster just to have a trial.”

He also said, “This case should settle today and it should settle for $XXX,XXXX.00.”

Lo and behold, it did settle for that amount (the next day).

The point: your client faces a serious challenge if you cannot say quickly and clearly why your client should win on summary judgment. If you don’t take our word for it, consider the sage wisdom of Minnesota preeminent trial lawyer Richard Ostlund quoting then retired Minnesota Supreme Court Chief Justice Bob Sheran.

In the case described below in which Mr. Ostlund represents Plaintiff Upsher-Smith Laboratories, Upsher-Smith got tricked and lost about $37 million in an internet scam. Some foreign evil-doer(s) posed as the company’s CEO and sent orders to a now former Upsher-Smith employee to wire money for bogus foreign exchange trades. Upsher-Smith’s bank, Defendant Fifth Third, received the wiring instructions and acted upon them. The issue is whether Fifth Third should be liable for Upsher-Smith’s $37 million loss.

Playing the devil’s advocate on Fifth Third’s request for more pages to make its summary judgment case, word count limits are arbitrary, are they not? And few of us know the details of international wiring or banking processes, which presumably have to be explained to the Court. Further, Minnesota Litigator (and most of our readers) don’t have detailed knowledge of the claims in the Upsher-Smith case. We don’t know the number of counts, the number and complexities of state law, federal law, the interaction with multiple layers of banking laws, regulations, regulators, etc. etc Fifth Third must explain all of this to the Court.

And further, the case does involve a lot of money. Shouldn’t Fifth Third be allowed to make its best arguments and use its best judgment on the length of its summary judgment brief? Let’s not prejudge the merits of Fifth Third’s request for 10,500 more words in addition to the 12,000 allowed by our federal district court’s local rule.

Nevertheless, in the end, remember: “de maximis non curat lex.” This is an expression we have just coined for which we propose this translation: “The law does not care for wind-bags.” And one more neologism to express the same warning: “Caveat loquax.” (“Windbag Beware.”)


The Office of Lawyers Professional Responsibility (OLPR) Board has issued its annual report this week and there seems to be no substantial change in the rate of identified unethical conduct among Minnesota lawyers, judging from the data in the report. That is, the data validate our sense that the vast majority of Minnesota lawyers are honest, hard-working, competent, and ethical.

Roughly 1,100 complaints were lodged against Minnesota lawyers in 2017. Of these, based on the data of previous years, it seems that well under 10% will ultimately result in findings of unethical conduct. Since we have about 20,000 practicing Minnesota lawyers, that’s a pretty small number of ethical violations (though, as with crime and negligence, we all recognize that reported instances are not comprehensive of all of the misconduct (and maybe not even most of it)).

Predictably, the two biggest missteps of Minnesota lawyers appear to be (1) failure to communicate and (2) lack of diligence (though it is possible that the OLPR might have a bias toward finding these violations rather than say, incompetence, which can be the root cause of failures to communicate and lack of diligence).

Ironically, the OLPR itself might be considered to have received the most criticism in its own report, since it has long been criticized for the length of time it takes to resolve ethics complaints and it did worse in 2017 than in the previous year (see the last paragraph on page 3). The OLPR attributes this to staff turn-over and other causes, adopting optimism about progress in the year to come. Of course, all annual reports communicate enthusiasm and optimism. Let’s hope that the optimism here is borne out.

Leading up to July 4, 1776, “the unanimous Declaration of the thirteen United States of America” (now better known as the Declaration of Independence) complained that the George III, then King of England, “sent hither swarms of Officers to harass our people and eat out their substance.” And, unsurprisingly,  King George III did not want  his rebellious colonists adjudicating right and wrong so he “obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.”

Storm Over St. Paul Minnesota

Now, 252 years later, we have a President of the United States obstructing the administration of justice and his lawyers argue that, like a King, the President of our country is the law so he cannot be found to violate the law. These are ominous and potentially momentous times. Maybe that should give more substance to what we generally treat as little more than an excuse for an annual summer party.

Update (July 2, 2018): Notch another successful prediction of Minnesota Litigator. The Minnesota Supreme Court, as we predicted below, reversed the Minnesota Court of Appeals this past week. Phew! A private party cannot hog-tie and force a trial court to issue an injunction, so-called equitable relief, and it follows that private parties cannot “stipulate and agree” that all of the elements for such relief exist, which would result in just that — forcing trial courts to issue injunctive relief even in cases where, objectively and subjectively, it is inappropriate and unjust.

We put “stipulate and agree” in “scare quotes” to highlight the fundamental tension that runs throughout U.S. contract law jurisprudence.

There is rarely genuine understanding and agreement in most legally binding contracts that most of us enter into every day. It is a legal fiction. Whether it is because the agreement requires a law degree to understand (and a few hours of trained lawyer time) that we don’t have or cannot afford (see, e.g., car rental agreements) or the agreement is “take it or leave it,” non-negotiable (see, e.g., “click-through” agreements on-line), or both, as we expect was the case for Mr. Heath Carter, to suggest that we have stipulated and agreed to every clause is a transparent legal fiction and the only time enforcement is evaluated by a dispassionate and competent arbiter is when such “agreements” are challenged in court. While courts must generally respect and honor the purpose and intent of private agreements, they must not be bound by them all in any just society.

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).


Look at the happy students! Imagine the infra-cranial chaos behind every single one of these kids as their still-developing brains grapple with the leap from the innocence of childhood to the fraught and complex interrelations, interactions, politics, and power of adult relationships!

This week, Sr. U.S. District Court Judge Donovan W. Frank (D. Minn.) dismissed all three allegations in a student’s complaint against St. Paul Conservatory for Performing Arts. Plaintiff’s complaint stemmed from the discipline that had been imposed on him regarding complaints of other students that he had sexually harassed them.

While the motion to dismiss was pending, however, U.S. Magistrate Judge Franklin L. Noel (D. Minn.) allowed the Plaintiff to amend his complaint to add a claim for negligence. Therefore, there is still an active pending lawsuit, but, out of the blocks, plaintiff’s claim does not seem compelling.


Update (July 25, 2018): No. (And so, today, Minnesota Litigator is one for two on predictions.)

Original post (June 22, 2018): Richard Messina and his lawyers at Halunen Law have been wrestling with Mr. Messina’s former employer, Yosemite, since 2014. Defendant Yosemite successfully sought appeal of the denial of its motion to compel arbitration, but then lost that appeal in 2016. (Yosemite was deemed to have waived its right to arbitrate by fighting in court for more than eight months before asserting that right.)

Defendant sought to appeal again after it lost its summary judgment motion in 2017. The Court of Appeals found that it had no jurisdiction over that appeal and dismissed it.

Now the case, finally, is set to be trial ready as of July 30. Isn’t Yosemite Home Décor finally ready to tap out? Or is Yosemite really going to go to the mat?


Update (June 25, 2018): In the discussion in our original post below, we quoted a U.S. federal district court (D. Minn.), quoting a 1995 Minnesota Supreme Court decision (quoting a 1984 Minnesota Supreme Court decision) for the following proposition (at page 15): “Under Minnesota law, every contract includes an implied covenant of good faith and fair dealing…”

It has been a while since we have construed the word, “every,” but it seems all-inclusive, does it not? It seems synonymous with “all possible,” or “the entire set of,” right?

On the other hand, a recent decision in the U.S. federal district court (D. Minn.), quotes a 1986 Minnesota Supreme Court decision in support of the proposition that Minnesota courts “have not read an implied covenant of good faith and fair dealing into employment contracts.”

So, in Minnesota, apparently “every contract” means “every contract except employment contracts.”

Let’s use the shorthand, “common decency” for this idea of “the implied covenant of good faith and fair dealing.” Why would Minnesota courts require that all contracts are built on a foundation of “common decency” except employment contracts? Doesn’t it seem strange that employers, of all actors in commercial and personal lives, should be “off the hook” when it comes to “common decency”?


Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Update (June 20, 2018): Lurie LLP and its lawyers from the Maslon law firm, Bill Pentelovitch and Martin Fallon, can celebrate now. They fought back Mr. Lapidus’ appeal in the case described below. Readers may point out that Defendant Neil Lapidus and his formidable trial team can still take this to the Minnesota Supreme Court and maybe they will. And maybe they will ultimately win.

On the other hand, it seems to us that Lapidus not only lost at the court of appeals; he lost bigly. We see no strong arguments for Supreme Court review, let alone reversal, but of course you never know.

Original post (April 19, 2017): (under the headline: A Bad Week for Neil Lapidus): 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.




In the Great White Northland of Minnesota Nice, few of us regularly see overtly racist — that is anti-black — behavior. On the other hand, a great many of us (but unfortunately not all of us) are aware of subtler, thinly veiled, and pervasive anti-black attitudes and racism in Minnesota, perhaps more than many other parts of the United States with more racially diverse populations.

Take, for example, restaurant dress codes that seem tailored to exclude black people by barring clothing trends that are disproportionately worn by black people.

For another example, take Faribault’s “Crime Free Housing Program,” which appears to be subtly crafted to exclude Somali residents to remedy Faribault’s non-existent “crime problem.”

The horrible thing about these forms of racism is their subterfuge, their plausible deniability. Racist restauranteurs and Faribault politicians can feign outrage with straight faces, arguing that they are simply concerned about public safety. They can pretend their rules apply equally to all, no matter their race or nationality. They can dismiss the claims of racism as “deficient and unfounded.” What if they are not?

Subtle deniable racism takes a serious toll on its victims. It literally messes with one’s ability to think. (linked is to an article about scientific research on subtle racism’s corrosiveness on cognition). In other words, the insidiousness of indetectable (and therefore deniable) deep-rooted racism literally boggles the mind.

Regular Minnesota Litigator readers will note that, among other recurring themes, we are preoccupied with marketing for legal services and lawyers and reputation. We should not have to point out the critical overlap of these areas of interest. We have also found defamation in the internet age to be a fertile ground for posts and, again, the overlap of interest is self-evident.

That brings us to today’s post.

“Mike H” is the only person to have reviewed LEVENTHAL pllc via a “Google review.” A month ago, he gave us one star out of five. “Mike H” did not explain the low rating nor did he give any clue as to how or when he has worked with or been represented by LEVENTHAL pllc, if, in fact, he ever has (which we very much doubt).

For a month, we mulled over how we should respond to this public slight. (But is it public? Or have we just amplified something that otherwise would have been in “practical obscurity”? Even if such an uninformative speck of datum were widely viewed, would it make an impression on anyone? Would it have any impact at all?) (Ed. note: By pure coincidence, the NY Times weighed in on this subject two day ago.)