Photo by Andrew Russeth of Oldenburg and Thiebaud Art

One of the more complicated parts of our justice system (and our country’s governance) is the layers of federal and state law. Almost all of us have an understanding that the Supremacy Clause in the U.S. Constitution elevates federal law over state law. But the question of when federal laws and states laws conflict is not always easily answered.

Take, for example, when someone sues a former employer in federal court under the state’s Whistleblower Act and she seeks to add a claim against her former employer for punitive damages.

There is a Minnesota statute that sets out a procedure and a legal standard for adding a punitive damages claim. There is also a federal court rule, setting out a procedure and a legal standard for adding a punitive damages claim.

They are not identical. What’s a federal court supposed to do?


Update (May 3, 2018): (Maybe a lawyer’s right to speak to jurors (or, more precisely, a judge’s prohibition on a lawyer’s right to talk to jurors?) implicates the First Amendment?) Recent discussion of the issue covered in the original post, below.)

Original post (April 11, 2018): After a recent jury verdict in favor of women’s hockey coach, Shannon Miller, in a lawsuit against the University of Minnesota, defense lawyers sought permission of U.S. District Court Judge Patrick J. Schiltz (D. Minn.) to contact jurors.

Judge Schiltz’s response:

My policy regarding contacts with jurors is as follows: I do not forbid attorneys to contact jurors. At the same time, I do not provide contact information to attorneys. Moreover, when I speak to jurors after trials, I discourage them from talking with anyone who contacts them about the case.

In short, you may contact the jurors, but you will have to locate contact information for them on your own, and you may not find many jurors who are willing to speak to you.

Does that sound like the right approach to you?


Congratulations to NJL lawyers, Karna Berg, Jeremy Robb, Katie Connolly, and Peter Gray, along with their client, Loftness Specialized Farm Equipment, for their complete defense verdict in a breach of contract claim (alleged breach of a non-disclosure agreement) by Twiestmeyer et al., in suit since 2011.

Before the recent jury trial, the multi-million dollar claim had already been to the Court of Appeals twice (see here and here). So, by the time of trial, the case was narrowed down and simplified to this single claim (see the jury instructions here).

It seems that the adversaries once worked together on “improving and manufacturing a grain-bag loading machine” based on the design of a machine that the Twiestmeyer parties had been importing from Argentina.

Having worked together, the adversaries then went their separate ways and Loftness assumed (1) that the parties’ non-disclosure agreement (“NDA”) would not apply to information that was later publicly available, and (2) that Loftness could use the no-longer-confidential information going forward without paying the Twiestmeyer parties for the right. The jury apparently agreed with Loftness.

It almost seems silly that someone would argue that an NDA would require someone to keep something secret that is widely and publicly known (or have to pay for the right to use the now-public information). But the Twiestmeyer parties undoubtedly saw things differently when they first lit the six-year fuse on what turned out to be a bomb of a lawsuit. But stay tuned. Yet another trip to the Court of Appeals could change the case’s ultimate outcome (yet again).

The StarTribune reported a recently filed action in Hennepin County district court this week.The action describes itself as “Petitioner Air T, Inc.’s Rule 27.01 Petition to Perpetuate The Testimony of Yahoo! Inc.”

Apparently, an anonymous person going by the name of “Blueskiesforme1” has been blasting Air T, Inc., on a Yahoo! “message board” with criticism.

Air T “anticipates that it may be a party to an action…[It] expects that any such action will involve claims for…breach of contract for violation of a non-disparagement clause…”

How does Air T know that the anonymous hater is a party to an agreement that includes a non-disparagement clause? The hater, we’re told, “is likely someone with access to inside information…” (See here on p. 2.) What’s the evidence to support that?


Photo Taken on April 16, 1990 on the steps of the U.S. Supreme Court after the arguments in Maislin v. Primary Steel (opinion linked here: From left to right are Brent Primus, Bill Augello, Bruce Hocum and Sam Rubenstein

We recently had the honor of interviewing Brent Wm. Primus of Primus Law Office, P.A. who has been practicing law in Minnesota for about 45 years. His experience is a vivid and inspiring illustration of the essential blend of blind luck and individual initiative that life requires for professional (and personal) success.

ML: Forty-five years of legal practice and all at the same firm?

Brent Primus: Correct.  It will be 45 years in September.

ML: I understand it is your firm now (with law partner, Laurel Learmonth) but it was your father’s firm originally. And how long has the firm been in existence?

Brent Primus: Well, my father, Lee B. Primus, moved to Minnesota in 1948 or so. At first, he just had a few insurance company clients where he did insurance defense work, and then at some point in the early fifties he went out on his own. He first officed in the Wesley Temple building, which is now part of the convention center next to Wesley Church. When I was quite little, I remember going there and seeing — he was actually an early innovator — he had a dictaphone system that used wax-coated cylinders. As he dictated, the cylinders would turn and it worked like a lathe. There’d be a blade peeling off a thin layer of plastic waxy material, which, as a young boy, intrigued me no end.

He later moved to the First National Bank building, but not the new edifice there now, and then by the mid-50’s he landed in what was then known as the Midland Bank Building where the firm stayed until 2007 when we moved across the street to the Tri-Tech Building.

ML: I note in your C.V. that you began your legal career investigating auto accidents while still in high school?

Brent Primus: You know, high school summers, like if someone’s family runs a grocery store or a dry cleaner, they help out there. In my case, my dad had a law office and by that time he was on his own doing plaintiff’s work, so I’d take the Polaroid camera, which in its day was high-tech, and go out to the accident scene and take various pictures from various angles all over town. And I’d also try to see if there were any witnesses. I’d knock on a few doors and see if someone had seen the accident.

ML: Did you go to college with the intention of becoming a lawyer?

Brent Primus: No, not at all really. In fact, during college, I decided not to be a lawyer, but then later that changed, of course.


Update (April 23, 2018): The Minnesota Supreme Court reversed the Court of Appeals’ indemnification decision in the collapsed table accident, described in earlier posts:

Although we may uphold the enforceability of a contractual indemnity clause, we disfavor agreements seeking to indemnify the indemnitee for losses occasioned by its own negligence… Accordingly, we strictly construe such indemnity clauses….For an indemnity clause to pass strict construction, the contract must include an express provision that indemnifies the indemnitee for liability occasioned by its own negligence; such an obligation will not be found by implication. Such a provision need not include the word ‘negligence,’ but it must use specific, express language that clearly and unequivocally states the contracting parties’ intent for the indemnitor to indemnify the indemnitee for the indemnitee’s own negligence. [internal quotes and cites omitted]


Update (April 20, 2018): Large U.S. law firms are multi-million dollar businesses, as we all know. Not one, to our knowledge, is a monarchy, a tyranny, or an institution with a single almighty decision-maker. This fact has its advantages and its drawbacks.

A single decision-maker can make decisions a lot more quickly. Sometimes, this can be an advantage. On the other hand, sometimes the more collaborative and deliberative process makes for better decisions.

This comes to mind in considering a marketing decision made by a small Minneapolis law firm that appears to be run by one decision-maker, Minneapolis civil litigator, Chris Madel.

What was he thinking? (more…)

Photo by Molly:

If a personal injury plaintiffs reject medical care, can they sue tortfeasors for their injuries, including their pain and suffering?

If personal injury plaintiffs sue tortfeasors for their injuries, do they have to run their medical treatment plans past the tortfeasors to get their ok as a prerequisite to recovering their medical costs from the tortfeasors?

In Fick v. Edwards, Mr. Herbert Fick sued Mr. Edwards for injuries that Mr. Fick sustained in a bike accident, allegedly caused by Mr. Edwards’ negligence.

After the accident, Mr. Fick refused pain medication. Then Mr. Fick sought to hold Mr. Edwards financially responsible for his pain and suffering. Does that seem right?


Leonetti’s Frozen Foods, Inc. hired Rew Marketing to help promote Leonetti’s frozen stromboli. Through Rew, Leonetti’s was working on a deal to get its stromboli into Sam’s Club, the huge retail warehouse club/grocer owned by Walmart.

Rew helped Leonetti’s meet the stringent requirements that Sam’s Club imposed (“two crucial tests”) to get its stromboli sold at the Sam’s Club in-store cafes. When an email was broadly sent out to Rew and Sam’s Club employees that Leonetti’s stromboli passed the Sam’s Club tests, with accompanying photos, one Rew employee responded to the good news (“replying all”):

“Nice job[. we] could even use slides 2-5 in our Costco Presentation next week :).”

Sam’s Club was not happy to learn that Rew was going to use photos from its work with Sam’s Club to sell Leonetti product to Costco, Sam’s Club’s big rival. Sam’s Club terminated discussions with Leonetti’s the next month.

What lessons should we learn from this?


Update (April 13, 2018): Following up on the putative Uber data breach class action, discussed below in an earlier post, here is the plaintiffs’ argument for why the Court should disregard the arbitration clause in Uber’s Terms & Conditions:

Defendants do not seek to compel arbitration on a bad ride, an over-charge, or the like, which would fall under the [Uber] Terms and for that reason might be arbitrable. Instead, Defendants seek to compel arbitration concerning the manner in which Uber collects, uses, and shares Plaintiff’s personal information (which, again, falls under the Privacy Policy, which does not contain an arbitration agreement).

Minnesota Litigator will not predict the outcome of this motion, tempting though it may be. It is all the more tempting because, according to the plaintiffs’ lawyers, there’s a significant likelihood that the Court will never have the opportunity to decide the motion because of proceedings going on in a related case: In re: Uber Data Breach Litigation, MDL No. 2826, pending in the Northern District of California. So maybe we could never be proved wrong?

Original post (March 16, 2018): We started the week discussing the unsuccessful class action claims against SuperValu for data breaches which, apparently, caused no provable actual financial losses to anyone.

We end the week noting that the Uber data breach proposed class action may be even weaker because, on top of the challenge of showing actual financial losses from the breach, which seems to be a challenge, there is the pesky arbitration clause that we’ve all apparently signed onto (that is, all of us who have ever “ubered”).

Those sympathetic to the plaintiffs in these case will point out the fix plaintiffs are in.