• July 25, 2018

Update (July 25, 2018): It is relatively rare that we celebrate when we at Minnesota Litigator have made a bad prediction, but, in our view, today the Minnesota Supreme Court got it right, in our view, and disproved our prediction below

The practice pointer below still applies, however, even though the consequences of a lapse might not be so extraordinarily draconian and severe as they would have been if the Supreme Court had ruled in favor of Lifetouch.

Original post (October 9, 2017): When a client comes to you and says she is leaving her high-paying executive position at a company and wants to be sure to “do it right,” make the client aware of her obligation to return company property — ALL COMPANY PROPERTY.

Clients sometimes fail to appreciate that “all” means “all.” They fail to appreciate that there is no “carve-out” or exception for “harmless retention.” If a client fails to return ALL COMPANY PROPERTY, this lapse could result in the loss of huge benefits to which the departing employee or executive would have otherwise gotten (and other unpleasant consequences).

I predict that that is going to happen to Mr. John J. Capistrant, who used to work at Lifetouch.

Mr. Capistrant lost his claim for his $1 million “residual commission” before the trial court. But the Minnesota Court of Appeals reversed, saving his bacon, for now. This past week, the Minnesota Supreme Court granted employer Lifetouch’s petition for review.

In theory, the Supreme Court could, of course, affirm the intermediate court’s decision but I would not bet on that.

We do not know who, if anyone, was advising Mr. Capistrant before or during his departure from Lifetouch. Furthermore, if Mr. Capistrant hired a lawyer, we do not know what the lawyer said or did not say to Mr. Capistrant about return of company property.

But, if Mr. Capistrant hired a lawyer to help guide him through the landmines of departure from an executive position and the lawyer failed to deliver this critical, if obvious, message, the result could be costly for Mr. Capistrant and, possibly, for his lawyer, as well.

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