• July 15, 2010

[UPDATE:  This story’s gotten some national attention along with coverage generally of in-house counsel’s access (or restrictions) to the protections of whistle-blower laws under various states’ laws.]

After a very long gestation, the Minnesota Supreme Court has finally issued its decision in Kidwell v. Sybaritic.  The delay can be explained by virtue of the fact that the Supreme Court’s decision comes in three fairly lengthy and researched opinions — a plurality opinion (Justices Gildea, Dietzen, G.B. Anderson), a concurring opinion (Magnuson, Chief Judge), and a dissenting opinion (Justices P. Anderson, Meyer, Page).

Minnesota Litigator will take a pass on a lengthy exegesis of the analysis of each opinion.  In summary, it is part of many in-house lawyers’ jobs to analyze the legality of company conduct and report that analysis to the company itself.  Some percentage of the time, this presumably results in reports of wrong-doing.  It seems that the majority of the Minnesota Supreme Court has some significant misgivings about treating these employees like any other Minnesota employees under the Minnesota whistle-blower statute.

(Though the Court does not say it, an inference could be that the Court has some concern that every in-house lawyer would almost invariably have automatic leverage when facing termination because he or she could almost always say the termination came after they “blew the whistle” on some conduct.)  Consequently, if Minnesota in-house lawyers find themselves having to report wrong-doing of such a severity that they have serious concern of a “shoot the messenger” reaction by the company, they would be well advised to tread with the greatest care and consult their own counsel as to how they might report that wrong-doing in a way that would give the best chance of preserving a claim under the statute.   The Supreme Court did not erect a per se bar against whistle-blower claims by in-house lawyers or other employees whose jobs might be characterized as rooting out wrong-doing (compliance officers, for example), but it set up parameters that do not apply to other Minnesota employees for this subset of employees within the state.

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