Law & Politics Cover Image

Lawsuits of the Year

International Affairs

Revisiting the Rwandan Genocide
The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, Anatole Nsengiyumva

He's been called a "genocidaire," his defense equated with Holocaust denial. But William Mitchell College of Law professor Peter Erlinder insists that by representing an accused Rwandan genocide perpetrator, he is just trying to set the record straight.

Erlinder argues that the Rwandan conflict in 1994 that left at least 800,000 people dead was not a genocide. He believes the former Hutu government has been unfairly demonized, and the Tutsis-widely considered the victims of the tragedy-instigated much of the violence. He says there has been "a conscious cover-up of the crimes committed by the guys who won the war," as well as by the state department and Kofi Annan-and even University of Minnesota Humphrey Institute of Public Affairs Dean J. Brian Atwood. And he intends to prove it before the United Nations International Criminal Tribunal for Rwanda.

"These tribunals are supposed to prosecute both sides. But in the Rwanda tribunal, only the side that has lost has been prosecuted. And that means either it's the only war in history where one side committed crimes, or it's a tribunal like Tokyo and Nuremburg in which the crimes of one side aren't on the agenda," says Erlinder. "In order to have a tribunal that appears to be law rather than politics, it's necessary for there to be some disclosure."

After two years of fighting for access to the original U.N. and U.S. government documentation of the conflict, Erlinder's requests were granted in 2005. As he read the documents, which he says "told a completely different story than the one that's been made public," it dawned on him that this case might not be worth the headaches. "I was shocked. I thought, ‘Oh, my God. Boy, this is going to cause me a lot of trouble. Maybe I should just pretend I didn't see it.'"

He claims that Paul Kagame, the current president of Rwanda, was involved in a plan to shoot down the plane of then-Rwandan president Juvenal Habvarimana and Cyprien Ntaryamira, the Hutu president of Burundi, whose murders instigated the 1994 war. The ensuing violence, he alleges, was a "pre-planned blitzkrieg [by the Tutsi army] to seize power in the country."

Erlinder's client, Aloys Ntabakuze, a former Hutu commander of the Rwandan army, is accused of genocide and crimes against humanity for murder, rape, persecution and other inhumane acts against the civilian Tutsi population. Erlinder says Ntabakuze is not only innocent but a "smart, trilingual, humane, decent guy," and says U.N. records back up his defense. "He's being prosecuted because the current government needs to eliminate any possible source of opposition, because they are a minority government. They're the English-speaking former ruling class ... and [they] invaded Rwanda to resume their previous privileged position."

He has faced international condemnation for his views, which fly in the face of the Hotel Rwanda version of history ("a great movie, just like Gone With the Wind was a great movie," he says). Erlinder has been personally denounced by Kagame and threatened with prosecution for negationism, the Orwellian crime of rewriting history.

He could also face a defamation lawsuit here in Minnesota. J. Brian Atwood, formerly the head of the U.S. Agency for International Development, says Erlinder's claim that Atwood and Kofi Annan held a meeting to cover up Kagame's involvement in the conflict is absurd. He says Erlinder's source, a former Rwandan foreign minister, is suspect at best, that the conversation never occurred and that he wasn't even in Rwanda at the time the meeting is alleged to have happened. Atwood says he wants to avoid a costly lawsuit, but has collected documentation that exonerates him in case he is questioned in the future.

"Erlinder has been unbelievably irresponsible in suggesting that I was in a meeting with Kofi Annan. I think I'd remember being in a meeting with Kofi Annan, talking about genocide," says Atwood. "Am I upset about having my name used in this way? Yes, very. I've got a pretty good reputation and he's done some damage to that reputation by simply repeating [this allegation], even after I've categorically denied it."

Atwood says he's complained both to Erlinder and to Eric Janus, dean of the William Mitchell College of Law, but "they hide behind what is called academic freedom." He adds, "But in this case he's really not acting as an academic; he's acting as an officer of the court. And somehow it seems that when you're operating in that fashion on an international level, being an officer of the court doesn't hold the same ethical standards."

Although he supports an investigation into the role of the current Rwandan administration in the 1994 conflict, Atwood says he hasn't seen any evidence to support Erlinder's claims against Kagame. "The problem with a defense lawyer for one of the accused pursuing it is that it raises questions as to what his motive is," says Atwood. "You've got some pretty prestigious jurists on that tribunal ... that were selected because of their record and their integrity.

"I don't see the international system working the way Erlinder sees it working. He sees conspiracies everywhere you turn," says Atwood. "To suggest that the United Nations is somehow tolerating or maybe even encouraging a victor's court-you need evidence to support that kind of an allegation, not just suspicions. It's a pretty wild charge."

Erlinder believes that by attacking the flaws in the tribunal he is upholding its integrity. "I didn't sign up to put myself in a position to have to oppose propaganda from Kegali, to be charged as a negationist, to have the human rights community consider me some sort of a less-than-human creature," Erlinder says, "but the fact is, the evidence is there."

—Jessica Thompson

 

Suing City Hall

Take This JOBZ and Shove It
Interstate Motor Trucks, et al. v. State of Minnesota

If some Minnesota business owners have their way, JOBZ, one of Gov. Pawlenty's pet programs, will get a pink slip.

Enacted in 2004, JOBZ (Job Opportunity Building Zones) encourages businesses to relocate to less-productive, less-populated areas and enjoy a tax-free enterprise. The lucrative terms have lured many businesses to small towns-from Ada to Zumbrota-while angering long-established neighboring businesses that continue to have to file with the IRS.

In an attempt to even the playing field, several long-standing business owners-including Interstate Motor Trucks Inc., Osvold Co. and The Meyers Printing Cos.-have sued the state over JOBZ, arguing that they "are in direct competition with local businesses that have the advantage of not having to pay taxes," says Rob Leighton with Nolan, MacGregor, Thompson & Leighton, who represents the plaintiffs. "We're asking that the court find JOBZ unconstitutional."

The attorney general's office did not comment on the case.

—Aimée Groth

A Ludacris Request?
T.J. Management of Minneapolis, Inc. v. City of Minneapolis

About two years ago, Gabby's Saloon and Eatery, in northeast Minneapolis, switched the music format of its Thursday and Saturday dance parties from Top 40 to hip-hop. Along with that came new customers. Along with that came new attention from the city.

Citing a spike in neighborhood crime, city officials assessed a $10,000 penalty and $15,000 levy for police calls, actions the bar's owners and operators at T.J. Management of Minneapolis felt unfair and potentially racially motivated. According to the Star Tribune, one Gabby's manager said an inspector suggested the bar could avoid sanctions by changing its music to country.

The bar filed a federal civil rights suit in February. Scott Harris of Leonard, Street and Deinard, lead attorney for Gabby's, insists that the bar hasn't violated any laws, nor has it violated the stipulations of its license.

"Our position is that, if the action of the city isn't overturned, then the notion of having any actual enforceable rights under a license would be thoroughly undermined," says Harris. "If the state court of appeals says we're right ... then we might prevail without reaching the constitutional issues."

Until then, the beat goes on.

—Christy DeSmith

 

Real Estate

... And All the Property Values Are Above Average
Jenny Lind Nilsson, Garrison Keillor v. City of St. Paul, Lori Anderson

Garrison Keillor lives in an expensive, historic house on Ramsey Hill. No surprises there. Keillor likes the view from his house-also not surprising. That Keillor filed suit over his next-door neighbor's two-story addition, which had already been approved by the Heritage Preservation Commission and the city, claiming it would "obstruct the access of light and air" to his own house? A bit more surprising.

The suit, which stated the addition would "impair or destroy protected historical resources," was filed last January after Keillor's neighbors, Lori Anderson and Paul Olson, had already invested nearly $50,000 in the addition.

The lawsuit also named the city of St. Paul as a defendant, claiming that Keillor wasn't notified of the public hearings for the zoning variance of the proposed addition. City Attorney Jon Choi told the Star Tribune that Keillor's allegations were "without merit."

Anderson told the Star Tribune that Keillor had originally expressed no problems with the addition before filing suit, but refused to talk to her after the lawsuit was filed, despite her attempts to reconcile the situation.

The dispute was resolved a week later, and the terms of the agreement were not made public. Two months later, Keillor put his house up for sale, opting to make a bid for a nearby mansion on Summit. Keillor's representatives and Anderson declined comment.

—Patrick Ellis

  

Green, on the Hot Seat

I Love the Smell of Manure in the Morning
State of Minnesota v. The Dairy Dozen

Imagine waking up to the scent of decomposing manure. And, even worse, the scent causes headaches and nausea and forces you to leave your home. This odiferous scenario played out in the lives of a handful of Minnesotans who live near Excel Dairy, an animal feedlot near Thief River Falls.

Early this summer, the attorney general's office and the Minnesota Pollution Control Agency jointly filed a lawsuit against Excel Dairy, deeming it a public nuisance and violator of state air-quality standards. A district court judge ruled that the 1,500-cow operation significantly decrease its levels of hydrogen sulfide, a byproduct of decomposing manure.

"The court ordered Excel Dairy to take interim actions to abate the nuisance and to meet with the Pollution Control Agency each week," says Ben Wogsland, a spokesperson for the attorney general's office. "In the meantime, the attorney general's office continues to work with citizens to monitor the situation and will pursue its lawsuit, including civil penalties, until these problems are fixed."

And if that wasn't enough: in July, the U.S. Environmental Protection Agency put Excel Dairy on notice.

Jack Perry of Briggs and Morgan, who is representing Excel Dairy, says his client is working closely with the EPA and MPCA to lower its hydrogen sulfide levels. "The issue is, these exceedances [in air quality] were caused not by normal operations but by repair work," he says. "Once it was all done, the operation plan was finally implemented and exceedances are down."

Nearby homeowners just want to sleep without nose plugs. "Minnesotans have the right to be let alone on their own land," Wogsland says. "No person should have to flee their home because of a public nuisance by a neighboring property owner."

—Aimée Groth

 

Woes in the Workplace

Caught With Their Hands in the Tip Jar
Eric Zajkowski, individually and on behalf of others similarly situated v. RCI Entertainment (Minnesota) Inc. d/b/a Rick's Cabaret

Sandra Delsing v. Starbucks Coffee Corporation

Lindsey Savage v. Caribou Coffee Company, Inc.

In March, a California judge ordered Starbucks to pay baristas $100 million in stolen tips, reversing a policy that had been requiring baristas to pool and share all gratuities, even with salaried managers. In the aftermath of this high-profile ruling, service workers across the country took up similar fights.

In Minnesota, the law firm of Nichols, Kaster and Anderson has filed three lawsuits involving tipping in the past year alone: in December, it filed on behalf of employees at Rick's Cabaret and Schieks Palace Royale,
and in March, it filed a similar suit on behalf of Starbucks workers in Washington County.

And in July, the St. Cloud-based firm of Rajkowski Hansmeier filed a suit on behalf of Caribou Coffee workers in Beltrami County. Clearly, word is out on the tipping restrictions written into the rather dusty Minnesota Fair Labor Standards Act. "The case law that governs tip pooling is very sparse. ... But the statute is very clear," says E. Michelle Drake, a lead attorney at Nichols, Kaster and Anderson. "My hope is that all of these cases will combine to encourage employers to respect employees' rights."

—Christy DeSmith

Is a Coach, Is Not a Coach?
James R. Williams v. The Board of Regents of the University of Minnesota, and Joel Maturi, individually and in his capacity as the athletic director for the University of Minnesota

Jimmy Williams claims Gophers basketball head coach Tubby Smith offered him an assistant coaching position in spring 2007. Williams already had a history of coaching at the U-but that was during an era of NCAA violations in the '70s and '80s. Williams never got his job offer in ink. In October 2007, the Star Tribune reported that Williams had initiated a suit in which he sought the position he says he was offered. The Hennepin County District Court dismissed the case in March, but Williams' attorney, Dick Hunegs, filed an appeal in May. In a bizarre coincidence, the two lawyers working on the case-Hunegs and university general counsel Mark Rotenberg-happen to be related. "The university is always interested in reaching settlements of disputes out of court," says Rotenberg. "I hope my cousin and I can resolve this."

—Christy DeSmith

Fashions Afowl
Frank et al. v. Gold'n Plump Poultry

In February, the Star Tribune reported that St. Cloud-based Gold'n Plump had reached a $1.2 million settlement with 3,000 chicken-processing and -cleaning employees. The workers' class action suit argued that employees should be paid for time spent donning and doffing the protective garb they're required to wear, such as hairnets and rubber boots. "There's a body of case law that's developed over the past several years, including a very important Supreme Court decision," says Gordon Rudd of Zimmerman Reed, a lead attorney for the class. "This makes it very clear ... time spent preparing for your shift when you're wearing protective equipment that's integral to your job needs to be paid time." In a prepared statement, Gold'n Plump says it believes it complied with the law, but the company "made a business decision" in order to avoid the expense of future litigation.

—Christy DeSmith

Cutie Patootie
Julie Lenz and Vicki Bender v. JCPenney Corporation and Kathryn Ostendorf

In December, the St. Paul Pioneer Press reported on an unusual age discrimination suit: middle-aged female managers at two JCPenney beauty salons-one in Roseville, the other in Rochester-were fired almost simultaneously. Each of the women had enjoyed decades of positive performance reviews with the company. However, in 2003, a woman named Kathryn Ostendorf was hired to be the supervisor of both. Ostendorf was, allegedly, indiscreet in her quest to install the salons with younger, sexier workers. According to the suit, she instructed salon managers to station the youngest stylists at the front of the salons, near the storefront windows. Meanwhile, managers were allegedly ordered to have the "young cutie patooties" lead job-recruiting events. Attorneys Thomas Conley for JC Penney and Trevor Stewart Oliver for Bender and Lenz did not respond to requests for comment.

—Christy DeSmith

Don't Forget to Read the Fine Print
LaRae Lundeen Fjellman v. Minnesota Health Commissioner

Minnesota's sexual harassment law for health care professionals had LaRae Lundeen Fjellman feeling like a deviant. Under the state statute, massage therapists aren't allowed to have a romantic relationship with clients for two years after their last appointment. Fjellman, who owns The Balanced Body in Lindstrom, wasn't aware of the law, and started dating a client just a few months after she stopped seeing him professionally. Things got messy when an angry ex-wife wrote a letter to the state health commissioner requesting an investigation.

Although the letter smelled of revenge, the state proceeded to grill Fjellman for three years, naming health officials and psychologists to the case. When it was done, Fjellman was outraged-and filed a lawsuit against the state claiming emotional harm and public humiliation. The ACLU helped with her defense.

"We had a great working relationship with the attorney general's office," says Robin Wolpert, who represented Fjellman on behalf of the ACLU. "They helped us freeze litigation so we could pursue a legislative solution."

In May, Gov. Pawlenty signed an amended law that allows massage therapists to have social relationships with former clients. The lawsuit was then dismissed.

"We thought it was a huge injustice," says Wolpert. "It was a clear constitutional violation."

The attorney general's office did not comment on the case.

—Aimée Groth

Pimp My Severance Package
Gregory A. Thorson v. Best Buy Co. Inc.

Ronald N. Zebeck v. Thomas H. Lee, David V. Harkins, Lee R. Anderson Sr., and Frank D. Trestman, individually and as directors of Metris Companies, Inc.; Metris Companies, Inc. n/k/a MTX LLC, a Delaware Corporation

Two Minnesota executives settled multimillion-dollar breach-of-contract suits against their former employers. According to the Star Tribune, Gregory A. Thorson was a management consultant with an impressive track record at JCPenney. He was handpicked to join Best Buy's executive team in spring 2005, but Thorson was fired in September 2006 after less than two years on the job. In his role as the executive vice president of enterprise transformation, Best Buy officials claimed Thorson contributed to a "hostile work environment" and, even worse, fostered an inappropriate relationship with the teen-aged daughter of another Best Buy employee. In June 2007, Thorson sued for $40 million in damages and lost severance. According to his attorney, Steve Snyder of Snyder & Snyder, "The case has since been resolved and the terms are confidential."

More details are available in the remarkable case of former Metris CEO Ronald Zebeck. Throughout the late '90s, Metris did a brisk business in the credit-card industry but, as with the rest of the economy, the company was faltering by 2002. That's when the Metris board of directors stepped in to fire Zebeck.

In 2004, Zebeck filed suit to enforce the terms of his severance package. According to the Star Tribune, Zebeck claimed he'd been dismissed for wanting to tell shareholders the company was for sale and under investigation. The company was quick with a countersuit; it claimed Zebeck misused corporate funds and even used Metris-owned computers to surf gambling and pornographic Web sites. It recharacterized the firing as "for cause" and therefore, it argued, Zebeck should be denied his benefits.

In September 2006, a jury awarded Zebeck more than $30 million in damages. In February 2007, a judge awarded an additional $10 million in prejudgment interest, attorneys' fees and other costs. And in May 2008, the Minnesota Court of Appeals affirmed the jury verdict and post-trial rulings.

Lew Remele of Bassford Remele, a lead attorney for Zebeck, says it was a fairly typical breach-of-contract case. "But it's certainly noteworthy for the size of the verdict," he says. "The ultimate judgment was about $53 or $54 million-you just don't get a lot of these cases in Hennepin County."

—Christy DeSmith

Watch for Falling Employees
Braun v. Wal-Mart

For 56,000 current and former Minnesota Wal-Mart employees, work meant standing for hours on end without lunch or bathroom breaks. They sued, and in July a Dakota County District Court found Wal-Mart had violated Minnesota labor law more than 2 million times. As a result, Wal-Mart will pay $6.5 million in compensatory damages to the class as well as a hefty state fine of up to $2 million.

"This was a seven-year struggle for humble Wal-Mart workers that on average earn nine dollars an hour," says William Sieben of Schwebel Goetz & Sieben, one of the lawyers who represented the class. Officials at Wal-Mart declined comment.  

—Christy DeSmith

Scrubs
Regents of the University of Minnesota v. United States of America

Paging Zach Braff. Maybe he can help the court with this simple question: Are medical residents students?

The University of Minnesota and the Mayo Clinic have long argued that medical residents-who, while training to become doctors, often work upwards of 40 hours per week-are indeed students, and therefore exempt from Social Security taxation. Each has sued the IRS to recover almost $3 million in FICA taxes collected from its medical residents.

Mark Rotenberg, general counsel of the U, says that when prior litigation over the issue resulted in rulings favorable to the university, the IRS adopted new regulations, which he claims were "designed specifically to nullify the university's previous victory."

In April, the U.S. District Court granted the university and the Mayo Clinic their refunds of FICA taxes, and the case is on appeal in the 8th U.S. Circuit Court of Appeals, where oral arguments were heard this fall.

—Patrick Ellis

 

The Free Market

The Case of the Dueling Cabbies
Minneapolis Taxi Owners Coalition, Inc. v. City of Minneapolis

If Luis Paucar has his way, it's going to get much easier to hail a cab in the notoriously taxi-deficient city of Minneapolis.

An entrepreneurial Ecuadorian immigrant, Paucar teamed with the Institute for Justice in lobbying the city council to drop its long-standing cap on the number of taxi medallions it issues-343 according to the Star Tribune. In the spring of 2007, the city council agreed to gradually issue an additional 180 medallions during the next few years before a total elimination of the cap on Jan. 1, 2010.

But then, in December 2007, a consortium of drivers with the city's larger, more-established companies sued the city, alleging that their constitutional rights had been violated because the value of their medallions was greatly diminished. Some of the old medallions went for as much as $25,000; new licenses cost a measly $475.

In October 2007, a federal judge recommended that the drivers' lawsuit be dismissed. "None of the existing cab owners had their right to work taken away," notes Lee McGrath, Paucar's attorney and executive director of the Institute for Justice Minnesota Chapter. "The constitution is not a tool to protect investments, nor to shield out competitors." However, the drivers continue their fight: They've appealed to the Eighth Circuit in St. Louis. The court has not yet set a date for arguments.

—Christy DeSmith

 

Personal Injury

Lax(ative) Regulation
Kathy Sevcik et al. v. C.B. Fleet Holding Co. Inc.

Colonoscopies are no fun. Throw in a laxative that permanently damages your kidneys and it's much worse. Patients across the country who have endured such a process are now suing C.B. Fleet, the maker of Phospho-soda, a popular over-the-counter laxative.

The company started recommending double dosages in the 1990s when consumers began undergoing colonoscopies as a cancer preventative. That's when the trouble began.

The FDA jumped in shortly thereafter, alerting consumers that double doses of Phospho-soda could lead to kidney failure. But the damage had been done. People across the country had suffered dialysis after taking the drug, and some even had to put their names on organ donor lists. Nearly 75 suits have been filed nationwide, including nine in Minnesota.

"The record shows that C.B. Fleet knew this product was a risk to certain people with a double dose," says Stephen Foley, the local plaintiffs' counsel. "My clients have been seriously hurt. I don't think C.B. Fleet has been a responsible corporate citizen."

C.B. Fleet is represented by Bowman and Brooke locally and Pepper Hamilton nationally. Ellen K. Scott of Pepper Hamilton notes that "C.B. Fleet has updated its labeling to reflect the safety profile of the product, and undertaken extensive efforts to keep the health care community informed regarding the safe and proper use of Phospho-soda."

The cases are scheduled for trial in the spring of 2009.

—Aimée Groth

  

Food Safety

The Case of the Violently Sick Lutherans
Nebraska Beef Ltd. v. Salem Lutheran Church

Minnesotans are known for church potlucks. This one was anything but potlucky.

A smorgasbord of home-cooked food at Salem Lutheran Church in Longville led to an E. coli outbreak, killing one person and making 17 quite ill. Although the Minnesota Department of Health linked the strain to Nebraska Beef Ltd., based in Omaha, Neb., the slaughterhouse sued the church, alleging improper food handling.

"I think it's unconscionable that a corporation would try to shift the blame to a small-town church," says Leatha G. Wolter, who represents Salem Lutheran. "The women have been cooking for many years without incident."

Nebraska Beef also argues that the highest incidence of E. coli involves lettuce, not beef. "Based upon the evidence, it's unclear as to whether the beef actually caused the illnesses," says Gary Gordon, who represents Nebraska Beef. "And, if it was the beef, you can't say definitively where the meat came from."

In an unrelated incident in July, Nebraska Beef recalled 5.3 million pounds of beef during another E. coli scare across the country. It's unclear whether this will affect Nebraska's lawsuit against the church.

"Nebraska Beef has a reputation for being a very aggressive company," says Bill Marler, a Seattle-based attorney who represents the widower of the woman who died, and another E. coli victim. "If they're willing to sue the USDA and a church, I don't think they will be influenced by the press."

The trial is scheduled for this spring in Cass County.

—Aimée Groth

  

Call in the JAG

The Never-Ending War
Veterans for Common Sense and Veterans United for Truth v. Hon. James B. Peake, Secretary of Veterans Affairs, et al.

Marine Jonathan Schulze came home from Iraq a tormented man. The Stewart, Minn., native suffered from post-traumatic stress disorder and was prone to suicidal thoughts and violent outbursts. After two years of self-medication, the 25-year-old checked himself into the VA Hospital in St. Cloud, admitting that he wanted to end his life. The hospital turned him away, telling him he was 26th on a waiting list for 12 beds. Schulze committed suicide.

His is one of hundreds of stories being used to make the case that the Veterans Administration has ignored the psychological repercussions of combat in Iraq and Afghanistan and has systemically denied benefits to sick veterans. A lawsuit filed in California in July 2007 by Veterans for Common Sense and Veterans for Truth aims to force the government to improve medical treatment for veterans suffering from post-traumatic stress disorder or traumatic brain injury-approximately 20 to 40 percent of all veterans, by their estimate.

Lead plaintiffs' attorney and Minnesota native Gordon Erspamer, of Morrison and Foerster in San Francisco, says the average claim cycle takes about 10 to 12 years, and there is no remedy for delay or denial of health care. Erspamer says an average of 18 veterans under VA care commit suicide per day. "The problem is many, many veterans are dying while these claims are pending. By the VA's own estimate, tens of thousands a year-mainly because the VA can't get its act in order," he says.

He says the problem is a failure of management, not a lack of money. "It's evidence of a huge epidemic, unprecedented among any of our post-war experiences for our veterans," says Erspamer. "The VA is simply turning a blind eye to the signature injuries of this war."

During trial in Los Angeles in April, an attorney for the Department of Justice argued that the evidence did not support the "dramatic allegations of failures" by the VA, according to the Los Angeles Times. A federal judge ruled in June that he could find no "systemic violations" within the current system to warrant court intervention. Erspamer says an appeal is pending.

"If the courts don't have jurisdiction and if the Congress is not the problem, how can we go back to the agency and hope to fix what they're not fixing on their own? The courts are the only body in our whole political system that can give these people any relief."

—Jessica Thompson

 

Speech, Free and Otherwise

Mac Attack
Paul McEnroe v. Gary Carlson

Paul McEnroe, the Star Tribune's Bob Woodward, is used to being in tense situations. But this was something else.

In a lawsuit filed in Hennepin County District Court in September 2007, McEnroe demanded more than $50,000 from real estate developer Gary A. Carlson, who in 2005 allegedly accelerated in a pickup truck, swiped McEnroe with his mirror and fled the scene. McEnroe was attempting to interview Carlson, then the CEO of Chicago Commons Corp., about the Minneapolis City Hall bribery investigation involving Council Member Dean Zimmermann. Zimmermann was convicted in 2006 of accepting more than $7,000 in bribes from Carlson.

McEnroe claimed injuries to his left shoulder and emotional distress. Fred Pritzker of Pritzker Ruohonen & Associates, attorney for McEnroe, says the matter was resolved confidentially.

—Jessica Thompson

Gagged and Bound
Milavetz, Gallop & Milavetz, P.A. v. United States

Attorneys in Minnesota may soon be able to speak freely with clients facing bankruptcy, thanks to Alan Milavetz and Chad Schulze. The Milavetz Gallop & Milavetz attorneys challenged the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, arguing that it unconstitutionally restricted attorneys by classifying them as "debt relief agencies" and prohibited such agencies from advising clients who were contemplating bankruptcy to incur additional debt.

"[The Act] stops us from zealously advocating on behalf of our clients, and also giving them truthful advice," says Schulze. "It puts a gag on us."

The attorneys argued that the statute was overly broad, as it didn't distinguish between "good" and "bad" debt. For example, an attorney might want to advise a woman filing bankruptcy to purchase a car before doing so, so that she can get the lowest interest rate. Under the Act, this kind of advice would be illegal. "But that's a debt that they need to incur to be able to still go to work. It's a sound financial decision," says Schulze. "You want to have sound financial planning so you don't have a recidivism rate in bankruptcy."

Chief U.S. District Judge James Rosenbaum held in April 2007 that attorneys are not debt relief agencies, and therefore they should not be restricted in terms of how they advise their clients. The case is currently before the 8th Circuit Court of Appeals. Milavetz says lawsuits against the Act are popping up across the country, and he expects the issue will reach the Supreme Court. "This Act restricted a lawyer's right to give advice to their clients. And it restricted a client's right to receive advice from their attorneys," he says. "It's an extremely important case for lawyers."

—Jessica Thompson

A Multi-Dollar Victory
Flowers v. Don Samuels, Paul Ostrow et al.

Some people are perennial candidates for office. Al Flowers is a perennial thorn in the side of the people who make it there.

In a September 2007 lawsuit, Flowers alleged that City Council Members Don Samuels and Paul Ostrow retaliated against him for comments made on his public-access television show Real State of the City. The show was taken off the air after a segment in 2005 in which Booker T. Hodges called Samuels a "house negro" and said that "we have to learn from Nat Turner's mistake, and we have to kill the house niggas, we got to kill 'em, and that's what we're doing on this show." Allegedly fearing for his life, Samuels met with the head of the Minneapolis Telecommunications Network, who took Flowers' show off the air for three months. Flowers filed a grievance and the show was returned.

A U.S. district judge ruled in November that Flowers' free speech rights had been violated and ordered the city to pay him $3, plus fees for his lawyer, Jill Clark, a solo practitioner in Golden Valley, estimated to be approximately $50,000. City Hall did not appeal the decision.

Clark says the remarks on Flowers' show were taken out of context, and were clearly not a call to violence. Under the First Amendment, she says, "even if it was a comment about killing, there is wide latitude to make your point. You don't have to be devoid of all passion." She says the city has publicized Flowers' history of litigation (or civil rights activism, depending on whom you ask) to portray her client as a nuisance.

What's the deal with the $3 in damages? "It was very important to be vindicated by the jury. If he'd been doing it just for the money, he probably wouldn't have done it in the first place. He did it because he thought it was important," says Clark. "If City Hall gets to shut down television shows that criticize City Hall ... it's not long before none of us can say anything."

—Jessica Thompson

A Mighty Shield
Ross E. Arneson, in his capacity as Blue Earth County Attorney v. Daniel Edward Nienaber, et al., Appellants

After Jeffrey Skjervold shot and nearly killed two police officers who entered his Amboy, Minn., home in December 2006, then barricaded himself inside, his phone rang. It wasn't one of the more than 50 officers surrounding the house outside but a reporter from the Mankato Free Press. Skjervold told the reporter what had happened, hung up the phone, waited around for eight more hours and then shot and killed himself as police fired tear gas into the home.

When the Blue Earth county attorney's office demanded that the newspaper release the details of that telephone conversation, the newspaper refused. In February 2007, the Blue Earth County District Court ruled against the newspaper, ordering it to aid in the county's ongoing investigation of the stand-off, and stating that "freedom of the press is not quite as sacrosanct or absolute as the free press would like it to be," particularly not when the press gets in the way of law enforcement doing its job.

Enter Mark Anfinson. The famed First Amendment attorney argued that under the Free Flow of Information Act, the Free Press reporters did not have to disclose unpublished information unless it could be proved that a specific injustice would occur otherwise. Since Skjervold had died, and could not be prosecuted with any crime, any information the newspaper had was moot, he said. A Court of Appeals sided with the paper in December.

—Jessica Thompson

Defamation or Information?
281 CARE Committee, et al. v. Junge et al.

When the Robbinsdale School District held a $22.8 million referendum for school funding in November 2007, a group of opponents calling themselves 281 CARE (Citizens Acting for Responsible Education) enlisted a house-calling campaign, among other tactics, to persuade citizens to vote "no." In phone messages, the group members said that "district problems are brought in [by] non-resident students," according to the Associated Press.

Many angry residents declared 281 CARE's tactics as manipulative and racist, and threatened legal action. "They made valiant attempts and were successful at misleading voters in the district by blatant distribution of blatantly false material," Robbinsdale Superintendent Stan Mack told Minnesota Public Radio after the referendum was rejected.

To pre-emptively fend off a lawsuit from the school district, 281 CARE filed its own, along with two other anti-levy groups in Howard Lake and Lake Crystal, against their respective school districts. They are trying to overturn Minnesota Statute 211B.06, which doesn't allow citizens to "knowingly distribute false information" during elections.

In principle, the statute seems like common sense. But the plaintiffs argue that the state shouldn't be the gatekeeper of what is and isn't truthful information in campaign politics.

"The three grassroots organizations involved were very surprised by the political aggressiveness of the school districts and their ‘yes' [referendum] committees," says Erick Kaardal of Mohrman & Kaardal, a First Amendment lawyer who has worked for a decade to overturn the statute. "The supporters of school district referenda were using 211B.06 complaints and threats to chill the speech of grassroots ‘no' [referendum] organizers. They feel that is wrong. The lawsuit is intended to help others - ‘yes' or ‘no' - who want to get involved in local politics."

The case was filed in September. "[Its ruling] will affect the 2010 election cycle," Kaardal says.

—Aimée Groth

 

Fraud

First Hmong Us
The World Hmong People's Congress v. The Congress of World Hmong Peoples

Who knew there was a Hmong Congress in St. Paul? Who knew there were two? And that they were suing each other?

The World Hmong People's Congress (WHPC) filed a suit against John Her, the founder of the Congress of World Hmong Peoples (CWHP), for embezzlement and fraud. The WHPC is a nonprofit Hmong advocacy group in St. Paul, as is the CWHP. The mission statements for the two organizations
read nearly the same. As do their Web sites.

So what's so wrong with having two advocacy groups? For one, the WHPC says Her took money from it to start CWHP. According to the Star Tribune, Her, WHPC's former treasurer, allegedly made off with $45,000, raised at a WHPC soccer fundraiser, and another $32,000 in other unexplained withdrawals and expenses, to start CWHP.

The WHPC's lawyer, Pao Yang, could not be reached but, according to the Star Tribune, the plaintiffs are asking for their cash back and for the CWHP to be dismantled.

—Jimmy Osterholt

The Costanza Method of Charity
The State of Minnesota v. ABC Humanitarian Trust

George Costanza called his fake charity The Human Fund. Sandra Belisle allegedly called hers ABC Humanitarian Trust. By the sounds of it, there was nothing humanitarian about either.

Belisle was sued by Attorney General Lori Swanson's office last August. According to a press release from the AG's desk, ABC, which has no board or members other than its director, Belisle, solicited cash and vehicle donations valuing $137,000, more than half of which was withdrawn in cash with no record of charitable activity to show for it.

Says Swanson: "Sham charities have no place in Minnesota."

The suit is pending.

—Jimmy Osterholt

 

The Bar Takes On the Bars

Lyle's Trials
Kimberlee K. Walsh, Trustee for the heirs and next of kin of William M. Walsh III, deceased, William Walsh IV, Samantha K. Walsh, and Jessica L. Walsh, a minor, by her mother and natural guardian, Kimberlee K. Walsh, Plaintiffs, v. Sumick, Inc., Arthur's Riverfront Properties, Inc., and Zachary Mason Ourada, Defendants

When Nye's Polonaise Room doorman Billy Walsh was gunned down by an intoxicated patron in 2005, his three children went after the three Minneapolis bars that served booze to the murderer earlier that night. A wrongful-death and dram shop liability suit against Lyle's Bar and Restaurant, Moose on Monroe and Spring Street Bar & Grill alleged that 26-year-old Zachary Ourada was "obviously intoxicated" and illegally served on the night of the shooting. (The claims against Spring Street were later dismissed.)

"They lost a very, very important person in their life and it was devastating to three children who were still in high school at the time," says Walsh family attorney Kate Westad of Lommen Abdo. "For these three kids, what they were looking for was a recognition that they had lost someone who they sincerely loved and cared about."

The dram shop liability portion of the lawsuit was confidentially resolved "to the mutual satisfaction of everyone" in June 2008, Westad says. The wrongful-death claims were decided by a default judgment against Ourada for more than $1 million in July 2008. A punitive damages claim is pending. Ourada is currently serving a 36-year prison sentence at Rush City.

—Jessica Thompson

Last Call for Sidelines
Jenny Ann Haag, as trustee, for the heirs and next-of-kin of Amanda Lea Jax, deceased v. Blattner Enterprises Inc., d/b/a Sidelines Bar & Grill, Hannah Marie Becker, Richard Thomas Johnson, Per David Kvalsten, Kathryn Ann Lensing, Jonathan Robert McIntyre, and ABC Bonding Company

Because her friends didn't call for help, Amanda Jax died of alcohol poisoning on her 21st birthday. That's the argument attorneys Alan Milavetz and Chad Schulze of Milavetz Gallop & Milavetz are making in a wrongful-death and dram shop liability suit against Sidelines Bar and Grill in Mankato-accused of over-serving an obviously intoxicated Jax-and the five friends who were partying with her that night in October 2007.

"They left this kid to die," says Milavetz. "These people put her in harm's way and they [had] a legal obligation to help her out of harm's way."

After allegedly buying the 100-pound woman more than 17 drinks in less than 90 minutes-including a pitcher of Long Island Ice Tea and five shots-the friends carried the unconscious Jax out of Sidelines Bar and Grill in Mankato, took pictures of her, watched her vomit twice and put her to sleep in a nearby apartment. They found her dead of alcohol poisoning the next morning. Her blood alcohol concentration was .46-nearly six times the legal driving limit.

"They needed to step in and stop the situation when it got out of control. That's what friends do," says Schulze. "And they instead decided to buy drinks, take photos and make fun of the entire situation like it was no big deal, while Amanda was sitting there dying."

Jax, a pre-nursing student at Mankato State University, was the first of four young adults to die of alcohol poisoning in the past year in college towns around the state. Jenny Haag, Jax's mother, hopes this lawsuit will prevent similar deaths in the future. "The key policy objective is to make college students aware that potentially they can be liable for their actions and held responsible" when they do not assist others who have clearly consumed a dangerous amount, says Schulze. The lawsuit also seeks "an amount in excess of $50,000 in damages."

"It may seem harsh to hold a friend or a drinking companion responsible, but the consequences are so serious with this binge drinking," says Milavetz. "A lot of times it's the legal system that's the impetus to make change."

Sidelines closed in February after the city suspended its liquor license. The bar has challenged the constitutionality of the dram shop statute. Jax's friends argue that they had no legal responsibility to keep Jax from drinking to excess or to seek medical help. "There may be a moral duty, but not a legal duty," says Mark Solheim of Larson King, attorney for 21-year-old Hannah Becker, who lived at the apartment where Jax died.

"There's a trend of heightened awareness of young people drinking, [and] that's great. The solution is not in a lawsuit based upon a legal duty. The solution is sitting right at the kitchen table when you raise your children," says Solheim. "Just because [binge drinking is] a problem doesn't mean that the law should recognize it as a cause of action."

If this suit were to succeed, Solheim says, it would "open the floodgates" of liability. Plus, he says, his client has already been through hell. "There but for the grace of God go all of us in college," he says. "To have that burden and to have to live with the fact that it happened is enough."

—Jessica Thompson

 

Religion

Priest Sues Parish
The Rev. Thomas Rayar v. Bjorback et al.

A priest, a judge and a lawyer walk into a courtroom. The priest says to the judge, "I want to sue my congregation for character defamation." The judge says, "You can't do that; it would be excessive entanglement between government and religion." The lawyer does it anyway.

That's the setup for the case brought by Rev. Thomas Rayar of Buffalo against 11 members of his former parish, Church of St. Francis Xavier, because of a letter they had sent to other parishioners and the press accusing him of fornication and adultery. His suit calls these claims "false and defamatory."

The letter also called Rayar an ineffective spiritual leader. Wright County District Judge Stephen Halsey concluded that "the court can't determine what an effective leader is without looking into church doctrines." He dismissed the case for "lack of subject matter jurisdiction."

Rayar's attorney, Ted Buselmeier of Buselmeier Law in Buffalo, wasn't satisfied with that explanation. "If this case holds precedential value," he says, "anyone can make any claim about a priest - just make a claim about his employment as well," and the courts won't touch it. The case is on appeal.

—Jimmy Osterholt

Woman to Ex: Keep God Talk Away from Our Kids
Timothy C. Kinley v. Barbara A. Kinley, n/k/a Barbara A. Peck

Let's face it, ex-spouses don't often like the words that come out of the other's mouth. In Barbara Peck's case, she considered what her ex was saying to their kids to be not just bad form, but blasphemous. So she sued him.

Timothy Kinley, separated from Peck in 1997, was saddled with a restraining order in 2002 prohibiting him from discussing "inappropriate" religious ideas and Bible lessons with the couple's three children. Peck alleges that Kinley was using religion to blaspheme her to the kids. Though Kinley denies using religious lessons to accuse his ex of adultery, he defends the concept of adultery as being a legitimate religious concern, according to the St. Paul Pioneer Press.

Under the counsel of Tom James, a solo practitioner in Cokato, Kinley filed a motion to modify or vacate the order in 2006, on the grounds that an injunction against "inappropriate" religious discussion is overbroad and unconstitutionally restricts his freedom of religion.

"A parent doesn't shed his constitutional values at the family court door," says James. Maybe if he were handling snakes and endangering the children, he says, some restraints might be in order, "but you can't just disagree with somebody's religious views and,
irrespective of whether there's been any finding of harm to the children, issue an order prohibiting them from talking about religion."

—Jimmy Osterholt

When Should a Disruptive Child Be Removed from Church?
The Church of St. Joseph v. Adam Race

Adam Race is 13 years old, 255 pounds, severely autistic and he goes to church. Or at least he did until the church filed a restraining order against him.

The AP reports that his priest at the Church of St. Joseph in Bertha, Minn., said, "Adam spit, wet his pants, made loud noises and nearly ran over people while bolting from the church."

Joe Schmitt, a Minneapolis lawyer with Halleland Lewis Nilan & Johnson, who works with disability cases, says this is a "classic battle between the rights of the individual and the rights of the community," except this is the first time Minnesota has seen that battle play out in a church.

This summer, Todd County District Judge Sally Ireland Robertson upheld the restraining order. The Rice family says it will return to the church if the order is lifted.

—Jimmy Osterholt

 

Intellectual Property

Phony Frog Spotted at Target

Diane von Furstenberg Studio v. Target Corp.

"There isn't a woman in America that doesn't have two of her dresses in her closet," says Harley Lewin of Diane von Furstenberg's designs. Lewin heads a team of "Global Brand Specialists" at Greenberg Traurig who represent DVF when rogue outfitters try to ape her products. "Diane is very, very, very high on protecting her consumers," he says.

So when a wrap-style dress bearing a flowing print remarkably similar to DVF's "Spotted Frog" design showed up on Target's racks, Lewin's team hopped to action.

"We fire a shot across their bow, and we send them a note and we put them on a very short string": that's how Lewin describes the "zero tolerance policy" employed when dealing with such fashion infractions.

If you copy her patterns, says Lewin, "you are copying her artwork and we stop you." Apparently Target got the message. The case was settled.

—Jimmy Osterholt

Golf-Aid Inventors Take a Bogey

Brian Trachsel and David Healy v. the U.S. Golf Association

Golfers shouldn't have to light up a cig or toss fistfuls of chemical-laden grass in the air to determine wind direction. At least that's what Brian Trachsel and David Healy thought. So they invented the Windage, a golf-ball-shaped device that, when squeezed, emits a puff of talc into the air.

The USGA, which is responsible for approving golf equipment, considered the Windage in violation of rules that prohibit aids to game play. Predictably, Windage's lawyer, Stanford Hill of Bassford Remele disagreed, noting that expensive GPS locaters are perfectly permissible. In a suit filed against the USGA, Hill says the golfer's association has "conspired with the manufacturers of these products" to keep little guys like Trachsel and Healy out of the game.

A Minneapolis federal court sided with the USGA on the matter, but Hill says there are "rumblings about an appeal."

—Jimmy Osterholt

Singing the Downloading Blues
The Recording Industry Association of America v. Jammie Thomas

Mom was wrong; sharing is bad. Very bad. That's what Jammie Thomas, a single mom from Brainerd, discovered when a Minnesota jury manacled her with $220,000 in penalties for sharing 25 music files over the Kazaa network.

Thomas, who works for the Mille Lacs Band of Ojibwe, became embroiled in the digital-file-sharing controversy last October. Of more than 20,000 people accused of piracy by the Recording Industry Association of America (RIAA), she was the first to duel them in court. And she wound up walking the plank for it.

The media is rife with claims that such anti-piracy stings are unconstitutional and that current copyright laws are relics of the Steamboat Mickey era. But Thomas' defense had a different tack. Her claim: It wasn't me. Though the IP address and user name in question could be traced back to Thomas and her computer, her attorney, Brian Toder of Chestnut & Cambronne, tried to demonstrate that any hacker worth his weight in dubloons could have purloined that information and done the pirating under her colors.

According to a Wired.com story, however, the RIAA's legal department convinced the jury of its case without having to prove anyone downloaded the songs from her or that she was even at the helm of the computer when the sharing happened or didn't happen.

A press release from the RIAA explains that it didn't deliberately single out a single mom for this action. As it had done with the thousands before her, it made settlement offers, but, "for whatever reason, Ms. Thomas turned us down. She and her lawyer chose this fight, not us."

Thomas' ship may not be sunk just yet. According to Liz Kennedy, an RIAA spokesperson, "[U.S. District Judge Michael] Davis has called both sides back to hear a brief that had been filed and he is considering a retrial." Davis now fears he may have misspoken when he told the jury he did not have to prove the songs had actually been downloaded. That, too, comes from Wired, which, according to Kennedy, follows the case closely, "sometimes to our demise." A retrial may not mean defeat for the RIAA's anti-piracy campaign, but it may give Thomas another chance to prove that she is not, in fact, a pirate.

—Jimmy Osterholt

 

Cover Story

The Land of 10,000 Out-of-State Lawsuits
And Scott Smith has had enough of them

Lorraine Ranallo lives in Olean, N.Y., a town of about 15,000 that sits on the Allegheny River. In the 1980s, she began taking Premarin and Provera as part of a hormone replacement therapy (HRT) regimen. The drugs are manufactured by Wyeth, a company with headquarters in Pennsylvania. In March 1993, Ranallo was diagnosed with breast cancer-a result of the drugs-and had a double mastectomy. On Nov. 11, 2007, Montgomery, Ala.-based lawyer Ted Meadows filed a complaint against Wyeth on behalf of Ranallo, in a Minnesota court.

All of this, says Halleland Lewis attorney Scott Smith, because of a loophole. One that allows Ranallo and others to come to Minnesota and take advantage of its six-year statute of limitations-the majority of states have two- or three-year statutes-after her time in New York ran out. Smith, who has been litigating product liability cases for more than 20 years, first took notice of the loophole in 2003 when he defended a couple of clients against out-of-state claimants.

The loophole was made possible by a perfect storm of legal and legislative decisions going back to 1978, which allow anyone to file a product liability claim in Minnesota courts as long as it meets two criteria: the company in the complaint must conduct business in the state of Minnesota, and the injury must have occurred before Aug. 1, 2004, when the legislature reinstated a statute that discourages out-of-state filings. But since the statute wasn't made retroactive, anyone injured prior to that date is still free to take advantage of the statute of limitations in the Land of 10,000 Lakes-which, according to Smith's count, has become the Land of 10,000 Lawsuits.

"Of the 9,680 medical device and pharmaceutical claims [filed since 2004] only 726 were filed by Minnesota residents," says Smith. "That's a lot of extra work for our courts."

Smith tracks the number of cases dropped on our doorstep each year, a process made easier since the creation of the Electronic Case Files system, and records them in an Excel document three inches thick. "It's kind of turned into a perverse computer hobby," he says with a chuckle.

But a hobby with a potentially significant product, one that even caught the attention of the ABA Journal, which published an article about the loophole and Smith's work in December 2007.

"I don't plan on marching across the river with the spreadsheet," Smith says, referring to the legislature's power to enact change, "but if people learn how pervasive it is and the effect it could have on the court system, then hopefully changes will be made."

Smith says the loophole has tossed 9,000 extra cases into the lap of a court system that is already overworked. Since the courts are fueled by taxpayer dollars, it's an issue Minnesotans should understand.

"It's not fair to the courts and it's not fair to the taxpayers who are paying for cases with roots in California or Alabama," Smith says. And since, in this state, the clock on the statute of limitations doesn't start ticking at the time of the injury, but rather after the plaintiff discovers the cause of the injury, "these cases could potentially go on for a very long time."

Short of the legislature enacting measures to make the statute retroactive, Smith says he is waiting for the perfect case to make its way to the Supreme Court and set a precedent against these filings-a move that plaintiffs' attorneys would presumably try to prevent. According to the ABA article, most plaintiffs' attorneys believe the spike is short-lived; they feel that many of the similar cases-like Ranallo's HRT case-will be consolidated into one trial, significantly diminishing the strain on the courts.

And Smith admits that as the law stands, plaintiffs' attorneys are well within their rights to bring these cases to Minnesota. He also believes that people like Ranallo deserve their day in court. Just in their own court.

"Each state has a right to find the balance between when an injury occurs and when someone can file a claim," Smith says. "We shouldn't become a place to go to for people who don't like what their state decided."

Since Smith defends large companies against these types of suits, it would be beneficial for his clients to have things change, but it could also conceivably take cases off his plate. Smith says there are larger forces at work than just business.

"We live in a litigious society-if this gets changed I'm not going to starve," Smith says. "Attorneys have an obligation to seek justice, and this is just wrong."

—Erin Gulden

Back to ArticlesBack to Articles



Articles | About Law & Politics
lawandpolitics.com | superlawyers.com
© 2014 Key Professional Media Inc.