• June 26, 2014
"A Tough Knot to Crack" (photo by Jay Fanelli)

“A Tough Knot to Crack” (photo by Jay Fanelli)

Update (June 26, 2014): The Minnesota “anti-SLAPP statute” is a thorny and confusing statute. I will try to distill the crux of this week’s Minnesota Supreme Court’s decision about it into “plain English:”  If a plaintiff sues a defendant, alleging that a defendant’s lawsuit against the plaintiff (or defendant’s other “participation in government,” such as taking positions at public hearings, before state agencies, and so on) was tortious and if the defendant responds to plaintiff’s lawsuit by moving to dismiss plaintiff’s claims under the anti-SLAPP statute, the burden shifts to the plaintiff to come forward with “clear and convincing evidence” that the defendant’s acts were not “genuinely aimed in whole or in part at procuring favorable government action.”

 There are many interesting aspects and unanswered questions about this decision but the most obvious one to me is, “What would constitute evidence (much less ‘clear and convincing’ evidence) that defendant’s acts were not genuinely aimed in whole or in part at procuring favorable government action”? Presumably, if a defendant had the temerity to communicate to a plaintiff: “I know my lawsuit against you is entirely without merit, but I will destroy you with legal bills,” this would suffice. Short of that, what would a plaintiff need to show and how would a plaintiff come up with that evidence before the very start of the lawsuit?

Also worthy of note to Minnesota litigators, please read and digest footnote 3 of the opinion on page 17. Apparently the Minnesota Supreme Court has enough work on its plate and does not appreciate unsolicited third-party submissions. If you or your clients seek to be heard in a case in which you (or your clients) are not parties, consider permissible avenues. “Better to seek forgiveness than permission” will not fly.

Update (December 9, 2013): The Minnesota Supreme Court heard argument on this case this past week.  Kay Nord Hunt argued for appellant AWUM. Tom Gunther argued on behalf of the Leiendeckers.  There are many strands in this difficult legal knot so the Minnesota Supreme Court will have its hands full.  The analytical challenge is off to a bad start when Minnesota’s “anti-SLAPP” statute requires that a party who invokes the statute come forward in response to a motion to dismiss with “clear and convincing evidence” to support its anti-SLAPP claim.  As the Court pointed out, is it not a conundrum of a paradox of an enigma of a mystery that a jury might theoretically find for a plaintiff under a lower standard of “preponderance of the evidence” (the applicable legal standard for civil liability) but the trial court could theoretically throw the case out before it ever gets to a jury due to lack of “clear and convincing evidence” (not to mention before any discovery)?

Original Post (September 6, 2013): (modified)  Leiendecker v. AWUM is a multi-year saga that includes lawyers suing lawyers for suing lawyers.

The Minnesota Supreme Court has recently granted the AWUM’s petition for review of the most recent Court of Appeals decision in this seemingly endless fiasco.

The Court of Appeals decision by Judge Francis J. Connolly has several facets.  Minnesota Litigator does not know what facet of the Court of Appeals’ decision will be reviewed although we do know that it was the AWUM’s appeal that the Court granted (and Leiendecker’s denied).

But when a court of appeals decision includes language to the effect that it is bound by prior court of appeals decisions and the supreme court grants review, it leads one to speculate that the higher appellate court might have taken the case to address the intermediate court’s line of cases that the intermediate court is relatively powerless to change, calibrate, or reconcile.

The issue may be the analytical contortionism in connection with pleading an “anti-SLAPP” claim, which seems similar to the twisted reasoning required by Minnesota pleading rules in connection with punitive damages previously discussed here.

Ouroboros: The Self-Devouring Snake

Ouroboros: The Self-Devouring Snake

An “anti-SLAPP” counterclaim is an ouroboros wholly aside from whether the counterclaim is lawyers v. lawyers.  An “anti-SLAPP” counterclaim is a lawsuit that the the other side’s lawsuit is an abuse of the court system.  This leaves open the possibility that a plaintiff may bring lawsuit, it may be counter-sued for having brought suit, and, in reply, it might counter-counter-sue the defendant/counterclaim plaintiff for having brought a suit in retaliation for the plaintiff having brought the initial suit….

This downward spiral into law-law-land is most often avoided due to the legal expense involved in infinitely recursive protracted fighting.  But when lawyers are attorney AND client, when professional livelihoods and reputations are at stake as well as money, and when there are deep reserves of bitter animosity, as would appear to be the case in the AWUM dispute, this is where lawyers and their clients might find themselves in the deepest recesses of the Heart of Darkness (The horror! The horror!)

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