• January 13, 2015

Update (January 13, 2015): Over two years later and the antitrust case, discussed below, is on trial before a jury in St. Paul this week. U.S. District Court Judge Susan R. Nelson (D. Minn.) issued a written order on motions in limine on Monday.

Here’s my blogger’s dilemma: let’s say a public (but hard to obtain) judicial decision rules on evidence to be excluded from trial. Out of respect for the legal system and in recognition of the fact that jurors — although they are instructed not to conduct their own internet research — sometimes do a google or two from time to time, should I refrain from publication of the published court order that discloses information that is being excluded from evidence at trial? I think its a case-by-case exercise of blogger judgment (which many might suggest is an oxymoron). In this case, I’ll hold it back.

Update (December 4, 2012): (Under the subject line: If You Rattle Your Saber, Will Your Adversary Just Pull a Gun and Shoot You?) Bang. You’re dead (for now).

Original post (October 5, 2012):  Who has not watched a movie sword-fight or knife-fight and puzzled over why no one brought a more modern weapon along?

J&M Distributing, Inc., a West Virginia corporation, might be the latest casualty in its litigation with Hearth & Home Technologies, an Iowa corporation based in Lakeville, Minnesota on an analogous miscalculation.

It would seem that J&M sent a number of saber-rattling letters to Hearth and Home as the two parties realized their joint business relationship was nearing its end.  But Hearth & Home Technologies drew first and shot.

J&M is far from dead, mind you.  It may be nevertheless fighting an up-hill battle on the threshold skirmish of where the battle will be joined.

On the other hand, the case is before U.S. District Court Judge Susan Richard Nelson (D. Minn.) and, as Minnesota Litigator has noted in the past, she recognizes that the so-called “first-filed” rule has exceptions.

The practice pointer here:  business litigants might want to consider threatening suit and filing suit at the same time.  One can always dismiss the filed action if the lawsuit is averted.  The cost is not that great. The risk of fighting at a disadvantage in a remote forum, on the other hand, is.

Seth Leventhal is a Minnesota litigator who appreciates that parties to commercial disputes had better understand that words prompt action.  If you threaten litigation without moving forward with litigation, you might find yourself in a vulnerable situation, defending (or prosecuting) claims in remote locations.

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