A Primer on Changes Wrought in the Wake of Justice David Lillehaug’S 2016 Article on Unpublished Appellate Decisions MITCHELL HAMLINE STUDENTS BECOME ALUMNI LEADERS

OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER X NOVEMBER 2020 www.mnbar.org

A primer on changes wrought in the wake of Justice David Lillehaug’s 2016 article on unpublished appellate decisions MITCHELL HAMLINE STUDENTS BECOME ALUMNI LEADERS

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MINNEAPOLIS IDS Center, 80 South 8th Street, Suite 4600, Minneapolis, MN 55402 (612) 256-3200 SAN FRANCISCO 235 Montgomery Street, Suite 810, San Francisco, CA 94104 (415) 277-7235 OFFICIAL PUBLICATION OF THE MINNESOTA STATE BAR ASSOCIATION VOLUME LXXVII NUMBER X NOVEMBER 2020 www.mnbar.org

14 ‘Published’ and ‘unpublished’ revisited A primer on changes wrought in the wake of Justice David Lillehaug’s 2016 article on unpublished appellate decisions.

By Jeff Markowitz and Stephen Warner ON THE COVER

4 President’s Page Extend your (virtual) hand to new lawyers By Dyan Ebert 20 6 MSBA in Action Rules are Rules. Really. MSBA launches A high-profile federal case association health plan reminds us that court rules are not just suggestions. 8 Professional Responsibility By David F. Herr Prosecutorial ethics: Part two By Susan Humiston

10 Law & Technology How to avoid an old scam with a new twist By Mark Lanterman

12 ColleagueCorner Meet Kojo Addo 24 CANCEL Anatomy of a Privacy Policy Website privacy policies long seemed 28 Notes & Trends AGREE Landmarks in the law a mundane subject—but they’re increasingly under scrutiny as a 37 People & Practice new form of actionable contract. Member announcements By Julie A. Lewis 39 Opportunity Market Classified ads

2 Bench&Bar of Minnesota s November 2020 www.mnbar.org Official publication of the Minnesota State Bar Association www.mnbar.org | (800) 882-6722

Editor Steve Perry [email protected] Art Director Jennifer Wallace Advertising Sales Pierre Production & Promotions, Inc. (763) 497-1778

MSBA Executive Council President Dyan J. Ebert President-elect Jennifer A. Thompson Treasurer Paul D. Peterson Secretary Paul Floyd New Lawyers Chair Kyle Willems a nt e Chief Executive Officer y ed Cheryl Dalby me ers i rs p a Publications Committee Judg er nt emnitve Su s ip Sh nd ei y RO ede tee Chairperson me I T rs nsh in ff s e rus s Carol K. Lee WHENev PERFri O tR RecM ANCEer CuOp UNT T Sa s ia pl Judg e n demnitiv S O ard ip Sh In e y R ede tee Steven P. Aggergaard Re n me f T ers Gu ri nsh vi if Rec rs Trus as Emily K. Cooper a ia le Judg er t emnit e Sup s or rd p p n nd iv O ede Holly A. Fistler rti a Re i Sh me I e y TR rs tee Wood Foster Gu i in g ff s e rus Ce ar nsh v d ri Rec r T a June Hoidal ip ia le Ju nt emnitve Sup s or rd p p he ei y O ede Bethany Hurd rsh rti ua Re i S me Ind TR rs tee G i sh in dg ff s e rus Henry D. Long ato Ce p ar ev ri t Rec er T a i r ian pl Ju he n demnitiv Sup O Malcolm P.W. Whynott tio ard p S In e y R ede orsh r Re hi n gme f nit T ers at Ce Gu ri ns vi d if Rec rs a t ip ra ia le Ju r t em e Sup rd p p he n nd iv O ede men Writhtio overa 40 yearsRe experiencei S PJTme has beenI Minnesotae it y ’s TR rs h orsh Gu i in dg ff n s at Cesuretyp bondingar specialist.nsh ev With the knowledge,ri t Rec experienceer pe a ttac t i r ia pl Ju he n iv Su A tio ard p S Indem e y R ede © 2020 Minnesota State Bar Association hmen orsh r Re hi n gme f it T ers Bench & Bar of Minnesota (ISSN 02761505) is published Monthly, Gu i ns i d f Rec n s vat t Ce p ar ia ev ri t er except Bi-Monthly May/June by the Minnesota ttacState Bar i l Ju n dem v Sup A • Supetirorsedeasrd • Apppeals •p CertSioherari • Replevin •e i y Association, 600 Nicollet Mall STE 380, Minneapolis, MN 55402- men orsh r Re hi n me In it 1641. Periodicals postage paid at St Paul, MN and additional h Gu i s i dg ff n s vat Ce• Injunp ctionar • Restrainienvg Order • Juridgmentt Rec • er mailing offices. Postmaster: Send address changes to Benchttac & er t i or ian l Ju he em iv Bar of Minnesota, 600 Nicollet Mall STE 380, Minneapolis,A MN • License ti Bondsa rd• Trust • PeprsonalS Representative • e y ns men orsh r Rep hi n gmen f Ind it 55402-1641. Subscription price: $25.00 for members whichCo is h • CatonserCevator • Gu Profersisional sLiabilivity • EdRISAi f• FideReclity • n included in dues. Nonmembers $35.00 per year. Some back issues v t p a ian e Ju r t em ttac er i or rd l he n iv available at $5.00 each. Editorial Policy: The opinions expressedA ns ti a ip S me Ind e y in Bench & Bar are those of the authors and do not necessarily men orsh r Rep n g f it Co hLocallyat ownedCe and operated. Gu rSamei daynsh servicevi with ind housei fauthority!Rec n reflect association policy or editorial concurrence. Publication of ttac rv t p ra ia le Ju r t em s advertisements does not constitute an endorsement. The editors e hi rd he n A rs tio p S me Ind tee a reserve the right to accept or reject prospective advertisements in ons hmen r ua Rep hi in g f accordance with their editorial judgment. C 121ato SouthCe Eighth Street G Suiteri 980, Minneapolis,ns v MN d55402 if rus ede ttac rv t ip ra le Ju er T rs A e (612) 339-5522 • Fax:rdia (612) 349-3657p O e WE’D LIKE TO HEAR FROM YOU: To query potential articles for ns men rsh rtio Sh R h [email protected] • ww Repw.pjtagenchi y.comin T Sup Bench & Bar, or to pass along your comments on matters related Co ato Ce G ri ns v rs y to the profession, the MSBA, or this magazine, write to editor rv t p a le e it Attac e hi or rdia iv n Steve Perry at [email protected] or at the postal address above. ns men rs rti ua Rep e Co h G i dem www.mnbar.org ato Ce arNovemberRec 2020 s InBench&Bar of Minnesota 3 ttac or A rti Ce President’sPage | BY DYAN EBERT

Extend your (virtual) hand to new lawyers

ne of the things I enjoy most But I know I also need to about being involved in acknowledge the tremendous professional orga- obstacles these newest nizations like the members of the bar have OMSBA is the opportunity already encountered, and they provide to interact with will likely continue to face, a wide variety of people I as they embark on their would not otherwise encoun- professional lives. From ter in my practice, and get taking the bar examination to know them on a personal while wearing a mask and social level. It is fascinating to learn distancing to securing employment where people come from, why at a time when many law firms they became lawyers, and how are laying off attorneys rather than their careers developed; I also enjoy hiring new ones, these new lawyers are hearing about their lives outside the navigating a world full of challenges that law. Often the most interesting tidbits many of us never faced or even imagined. of information surface while huddled While the MSBA is not able to eradicate around the coffee counter in the 15 minutes many of the challenges facing new lawyers, before a meeting is scheduled to start. we can certainly help lessen one of them—the challenge of Unfortunately, the opportunity to interact informally with cultivating professional relationships. Even in a “remote” our colleagues and friends is yet another casualty of covid-19. world, the MSBA can provide opportunities to make the To be sure, while our new “virtual reality” has (thankfully) personal connections that are so vital to a successful and enabled most of us to continue to work and to be active meaningful legal career. And, just so it is clear, when I say the in professional organizations, it can have a tremendous MSBA can do this, I mean you—our members. negative impact on our ability to make and cultivate personal I ask each of you to reflect on what it was like when you connections. Things that have happened organically in the past were first admitted to the bar and to think about what would now require more intentionality and have helped you at that time to feel welcomed into the effort. And, if I—a more “seasoned” profession. Then be creative on how you can strive to provide member of the bar—feel this way, can those opportunities to new lawyers at a time when there is very you even imagine how a new lawyer little ability to strike up a casual conversation while grabbing a who does not already have established cup of coffee and waiting for a meeting to start. connections in the bar must feel? This is not a significant ask. It is actually very simple. By the time this column is in print, Invite a newly admitted lawyer in your firm to attend a virtual I will have had the honor of welcoming MSBA committee or section meeting with you. Watch for the newest members of the bar to announcements of new lawyers joining firms or hanging out the legal profession. For quite some their own shingle in your community, and offer to meet them DYAN EBERT time I have been mulling over what for coffee or lunch (socially distanced, of course). If you see a is a partner at the to share with the new lawyers at their new name on a committee list, make a phone call to introduce central Minnesota swearing-in ceremony on October 30, yourself and get to know the new person. I can say with the firm of Quinlivan & 2020. I will proudly congratulate them utmost confidence that even the smallest effort by you as a Hughes, P.A., where on their achievement and tell them member of MSBA to reach out to a new lawyer will be well- she served as CEO that they are entering a profession that received. Based on my own experience, I believe you, in turn, from 2003-2010 and values trustworthiness, civility, and will also personally benefit from making this connection. 2014-2019. She also hard work. I will also tell them that as Together, let’s model the MSBA’s commitment to civility by served on the board of a member of this profession they have reaching out to welcome and get to know our new colleagues directors of Minnesota a duty to uphold the ideals of equal and share with them the value and importance of membership CLE from 2012-2019. justice, access to justice, and the rule that we have all enjoyed. Our future depends on it. s of law.

4 Bench&Bar of Minnesota s November 2020 www.mnbar.org Minnesota American Indian Bar Association 24TH ANNUAL SCHOLARSHIP GOLF TOURNAMENT

The tournament was held on September 17, 2020 at The Meadows at Mystic Lake. All proceeds went to the MAIBA Scholarship Fund, which funds scholarships to American Indian law students attending law school in Minnesota. THANK YOU TO OUR PLATINUM SPONSORS FOR THEIR GENEROUS SUPPORT

Hon. Leo I. BrIsBoIs

THomas F. neLson MSBAinAction

MSBA launches MSBA sections association updates n The MSBA’s annual New health plan Lawyers Leadership Conference will be happening online this he Minnesota State Bar Association announced this month that it will offer year during the week of Nov. an association health plan to its members, extending affordable health care 9-13. The theme: “Shedding the Tto law firms in the state of Minnesota. The MSBA Association Health Plan Old Normal—A New Lawyers (www.Health.MSBAinsure.com) was developed to meet the unique health care needs Guide to Succeeding and of law firms. It will offer a portfolio of health benefits options insured by Medica. Leading in a New Normal.” The The plans are available to law firms that have at least one primary owner in good conference will bring together standing with the MSBA and at least one additional individual on staff. Law firms fresh perspectives on the practice and their employees will be able to choose from a variety of PPO (Preferred Provider of law, leadership, racial justice, Organization) and Health Savings Account (HSA)-eligible Consumer Directed and the covid world we all find Health Plans (CDHPs). ourselves in. Join us for dynamic Law firms may also select from Medica’s broad access PPO network or from and engaging presentations, a listing of ACOs (Accountable Care Organizations) made available in certain diverse and thought-provoking geographic areas throughout the state. Medica will work with any licensed and speakers, and practical and appointed agent who wants to quote MSBA Association Health Plan to their eligible insightful tips for a well-rounded member clients. career. Learn more about the The Mercer Affinity 365+SM platform will provide members and their brokers program and register by visiting access to obtain medical coverage quotes for employees and their families. The mnbar.org/cle-events. platform facilitates enrollment and provides ongoing benefit administration to help drive cost efficiencies and employee engagement. n Save the date: The annual “Law firms of all sizes face significant challenges in providing affordable health Construction Law Case Law insurance for employees. An MSBA-sponsored health plan has been discussed for a Update CLE webinar will be held number of years and we’re excited to be launching this new initiative. The plan offers on December 11 from 12:00 - health insurance options for MSBA attorney members and law firms across the state,” 1:00 pm. One of the section’s said MSBA CEO Cheryl Dalby. most popular events, this MSBA is quoting these plans for eligible member groups beginning with January 1, program features a summary 2021 plan effective dates. To request a quote for these plans, interested businesses or and analysis of important case their brokers may visit www.Health.MSBAinsure.com. law developments in Minnesota The MSBA Association Health Plan is an industry-based Association Health construction law over the past Plan (AHP) that’s fully ACA-compliant, serviced by Mercer and sponsored by the year. Register by visiting Minnesota State Bar Association. Medical insurance is underwritten by Medica. mnbar.org/cle-events. Plans are not available to member employers outside of Minnesota. Please note that the health coverage offering through MSBA and Medica is currently under review n As you may know, the and is pending regulatory approval. MSBA Civil Litigation Section Governing Council created the online Judges’ Courtroom Preferences guide in an effort HELP US HELP YOU to assist attorneys who may be appearing before a judge for the Take the Bench & Bar reader's survey first time. With 293 district court by visiting www.mnbar.org/bench-bar judges in Minnesota, the Council and let us know more about the kinds works continually to update this list by keeping it accurate and of content you find most relevant. current. You can access the guide Survey closes November 14. by visiting bit.ly/3man65y.

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11.20 Season Pass.indd 1 10/26/2020 10:40:39 AM ProfessionalResponsibility | BY SUSAN HUMISTON

Prosecutorial ethics: Part two

ast month this column focused I would like to pause to consider how state law for whistleblowers, this is a on prosecutorial ethics. And those attorneys must have felt. Imagine serious undertaking. shortly after it went to print, the dread, helplessness, and anxiety Ultimately, Mr. Pertler agreed to the Minnesota Supreme Court in learning that your office had essen- stipulate to disbarment, and the Court issuedL its decision in In re Pertler,1 an tially abdicated its constitutional and approved that disposition on September important ruling on this topic. Thomas ethical responsibilities with respect to 16, 2020. This is the first Minnesota Pertler served as Carlton County At- cases where disclosure would have been case I’m aware of where a lawyer was torney from January 2005 to Novem- required. I imagine, but do not know, disbarred for conduct that occurred ber 2018. From the chief of police, that Mr. Pertler must have felt this way while acting as a prosecutor. In fact, very who understood his own ethical and as well. few prosecutors have been disbarred constitutional obligations, Mr. Pertler Mr. Pertler was defeated in the No- nationwide. Perhaps the most well- learned that an investigation into an vember 2018 election, a short time after known case is the one involving Michael officer on the Cloquet Police Depart- all of this information started coming to Nifong, the North Carolina district ment substantiated that the officer had light. Before the election, line prosecu- attorney who prosecuted the matter that provided incomplete information in a tors started dismissing cases involving became known as the “Duke LaCrosse search warrant application, conducted the officer, many of them felonies—a Case.” Mr. Nifong was disbarred in 2007 an incomplete investigation, and was few involving domestic assault or other because he withheld discovery, including subsequently disciplined (suspended) crimes of violence. The newly elected potentially exculpatory DNA evidence; for the misconduct. Contemporane- county attorney, upon being sworn in, directed a witness to withhold evidence; ous correspondence makes it clear Mr. undertook a review of cases involving lied to the court and opposing counsel Pertler understood that this information the officer. The 19 previously dismissed regarding the DNA evidence; and lied to (relevant to the credibility of the officer) cases remained dismissed, and an addi- disciplinary authorities investigating his was both constitutionally and ethically tional eight convictions were dismissed, misconduct. required to be disclosed in cases where with records expunged, including one In researching the appropriate dispo- the officer’s testimony was material. case in which the defendant was incar- sition for Mr. Pertler’s case, this Office Inexplicably, though, Mr. Pertler cerated and subsequently released after repeatedly encountered research from chose not to disclose this information his conviction was vacated. academia questioning the lack of disci- to attorneys in his office handling cases plinary enforcement for prosecutorial involving the officer; he appears not Far-ranging impacts misconduct.2 Indeed, the National Regis- to have taken any action at all on the Now let’s reflect upon the many try of Exoneration published a detailed information. Without explaining why, people affected by this conduct. Think study this fall entitled “Government Mis- Mr. Pertler did of all the victims of the alleged crimes conduct and Convicting the Innocent: ask an assistant that had been charged. None of them The Role of Prosecutors, Police and Oth- county attorney received justice. Think of each of the er Law Enforcement.” The study— 218 in his office to defendants, who had been charged and pages long and focused on cases where draft a Brady/ in some cases convicted without the due individuals were cleared based upon Giglio disclosure process they were entitled to. Think of evidence of innocence—found that con- policy around this the defense counsel, including many cealment of exculpatory evidence had time—but once public defenders, who were stymied in occurred in 44 percent of exonerations; it was drafted, their efforts to effectively represent their that prosecutors committed misconduct SUSAN HUMISTON he did not adopt clients. Think of the law enforcement in 30 percent of exonerations; and that is the director of the the policy, train personnel charged with protecting and discipline (whether by an employer or Office of Lawyers his staff about serving the people of Carlton County regulatory bodies) was generally rare Professional it, or tell anyone whose work went for naught, tainted for prosecutors and, when imposed, was Responsibility and what he knew. by the misconduct of one of their col- often “comparatively mild.” The study Client Security Inevitably, leagues. also opined that one of the root causes of Board. Prior to her attorneys in the Ordinarily, the Office of Lawyers Pro- misconduct was ineffective leadership by appointment, Susan Carlton County fessional Responsibility does not accept those in command. worked in-house Attorney’s Office anonymous complaints. The allegation Although the September 2020 study at a publicly traded later learned that prompted the investigation into Mr. came out after Mr. Pertler stipulated to company, and in of the officer’s Pertler’s conduct was an exception. It disbarment, we (myself in particular) private practice as a misconduct, and can be difficult, despite reporting obliga- were heavily influenced by the lack of litigation attorney. that Mr. Pertler tions under Rule 8.3, Minnesota Rules of serious discipline for prosecutors who

SUSAN.HUMISTON had known this Professional Conduct, for lawyers or staff have engaged in serious misconduct, @COURTS.STATE.MN.US information for to file a complaint against their supervi- when considering the appropriate dispo- some time. sor. Even with potential protection under sition for Mr. Pertler’s case. Professional

8 Bench&Bar of Minnesota s November 2020 www.mnbar.org discipline is not punishment for the you do not have good policies and are in meeting their obligations. In 2014, the attorney, but rather is imposed to protect not crystal clear about the consequences American Bar Association issued Formal the public, protect the profession, and of failing to follow those policies, there Opinion 467, “Managerial and Supervi- deter future misconduct by the lawyer is a risk that you will not effectively set sor Obligations of Prosecutors under and others. How can the purposes of the standard of conduct expected by the Rule 5.1 and Rule 5.3.” It offers good discipline be served if serious misconduct ethics rules. guidance on steps to take to set the tone is not met with serious discipline? Given I hope also that one of the lessons is from the top. The opinion discusses the the expansive scope of harm in this case, that if you mess up, you must acknowl- importance of a culture of compliance, the fundamental dereliction of duty, and edge that mistake and work to correct an effective up-the-ladder reporting the precarious position in which his con- it—no matter how difficult or embarrass- structure, and the need for discipline and duct placed other lawyers, we believed ing it may be. Mr. Pertler, for inexplicable clear remedial measures when policies disbarment was the appropriate sanction, reasons, did not assist his office in solving are violated. and the Court agreed. the problem created by the lack of prior, I know this is far easier said than timely disclosure, but instead put a done. Thank you to all of the prosecu- What it means deputy in charge and left his post after he tors that understand your duty and lead The lesson here is not that any lost the election, not even serving out his by example as “ministers of justice.” I misstep by a prosecutor will get you term until his successor was sworn in—a know that cases like Mr. Pertler’s are the disbarred. Disbarment remains rare. The fact that also weighed in the recommen- exception, not the rule, but given the lesson is that all prosecutor’s offices, dation for disbarment. Mr. Pertler did not importance of the position, everyone state or federal, must put in place, train raise any mitigating factors during our must stay vigilant. As always, our ethics personnel about, and follow policies that investigation, and we often do not know line is open to assist you in meeting your are focused on ensuring that ethical and what crosses another bears. ethical obligations. s constitutional obligations are met in I hope others learn the many lessons every case. As with so many things, the embedded in this case. I also hope it is a Notes tone is set from the top. If your office call to action for all leaders in prosecu- 1 In re Pertler, ___ N.W.2d ____, A20-0934, rewards or permits bad behavior—or tor’s offices to refocus on ensuring you 2020 WL 5552562 (mem) (9/16/2020). behavior “close to the line”—you may are leading in an ethical manner, and 2 See, e.g., Kevin C. McMunigal, The (Lack of) be placing your license at risk, as well that you have in place the policies and Enforcement of Prosecutor Disclosure Rules, 38 as the licenses of those you supervise. If procedures necessary to assist your staff Hostra Law Review 847 (2010).

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Protecting Your Practice is Our Policy.® www.mnbar.org November 2020 s Bench&Bar of Minnesota 9 MN Bench and Bar 2020 Law&Technology | BY MARK LANTERMAN

How to avoid an old scam with a new twist

icture this: You get contacted Your firm follows the instructions only to last part of the scenario. It’s only after by a non-local potential client learn that the cashier’s check bounced. the check bounces that the firm finally who wants to hire your firm Worse still, upon contacting the local contacts the third party and finds out to represent them in a case business that supposedly sent the check, they have no knowledge of the situation Pinvolving a local business with which you learn that it has no awareness of the or the client. Even without a retainer, you are familiar. This prospective client case. Or your client. this should be the first step. If something provides you with documentation and A variation of the tried and true wire seems off, out of the ordinary, or simply paperwork attesting to the interactions transfer scam, this setup is made even too convenient, verify the story with the he has had with more effective by invoking the name of a third party. Maybe you will do a bit of ex- the business seemingly legitimate and local third par- tra work without getting paid, but in the and what type ty. I was recently contacted by a firm that long run, you’ll save yourself a lot of time of work will unfortunately lost hundreds of thousands and money. Always check and double- need to be done of dollars as a result of this scam, and check that the parties that are either moving forward. their bank is saying they’re on the hook sending or receiving funds are legitimate. An engagement for the sum. This past May, a Boston law It is always wise to slow down and act letter is signed firm that had fallen victim to the same cautiously when dealing with potential and a retainer is con in 2015 had their lawsuit against social engineering attacks and scams. requested. A few their bank dismissed by the Massachu- Confirming identities, waiting for checks MARK LANTERMAN is CTO of Computer weeks go by with setts Appeals Court. The court said, “It to truly clear, and being wary of anything Forensic Services. no retainer, until was the firm that was in the best position that raises a red flag are all strategies that A former member all of a sudden, to guard against the risk of a counterfeit may help to prevent your becoming a of the U.S. Secret the local business check, by knowing its ‘client,’ its client’s victim. If you believe that a wire transfer Service Electronic sends a cashier’s purported debtor and the recipient of the fraud has occurred, it is absolutely criti- 1 Crimes Taskforce, check. You wire transfer.” That’s the stark reality of cal to act fast for any hope of recovery. Mark has 28 years contact the client the matter: In the event of a scam, firms As these scams don’t show any signs of of security/forensic to let him know it are ultimately responsible for spotting going away, it is important to provide experience and has been received when things are amiss. Relying on your training and education in identifying and has testified in over and he tells you bank to identify a counterfeit check is reporting fraud. s 2,000 matters. He is to deposit the not an effective strategy. a member of the MN check—and to Like phishing scams and the many Notes Lawyers Professional wire a portion of other social engineering attacks that a 1 https://www.lawsitesblog.com/2020/05/law-firm- Responsibility Board. the sum to an out- firm may encounter, combatting this type snared-in-312k-email-scam-loses-lawsuit-to- of-town entity. of scam requires vigilance. Consider the recover-from-bank.html

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‘A direct and positive effect on people’s lives’

Why did you go to law school? From a young age I knew I wanted to pursue a vocation in which I had a direct and positive effect on people’s lives. Being a lawyer, though, was not the original plan. My plan was to be a doctor. However, that pursuit changed after realizing that chemistry was not my strong suit. As I progressed through undergrad as a communication studies major and management minor (categorically the opposite of chemistry), I recognized that my skills were geared toward advocacy and consensus building. So getting into law school to become a lawyer was my opportunity to bridge my purpose with a set of skills that seemed to come natural to me. KOJO ADDO is a personal injury trial lawyer at Schwebel, Goetz & Sieben PA. What’s the best professional advice you He started at the firm as a law clerk in 2015 and became an attorney there ever received? in October 2017. Kojo has always had a heart for people and takes pride in The best professional advice I have received helping injured people and their families navigate complicated legal and came from a good friend a few years ago and it had insurance processes. Kojo also serves on the Mitchell Hamline Alumni Board to do with life in general; it was that “you are human after all.” and MSBA New Lawyers Section Committee. This short reminder has allowed me take chances, make mis- [email protected] takes, and grow as a person and a lawyer with the understanding that being a lawyer is just a part of my life and not life itself. practice and the effects it has on our lives—while having some Why did you choose to pursue a personal injury practice? fun too. Being the chair of this committee has proven to be a bit I chose to practice personal injury law because the work is of a challenge during a pandemic. However, the committee will fulfilling and it is an area of law where I know I can be effec- not allow a pandemic to prevent the Section from meeting, even tive. After my first year of law school, I had the opportunity to if it means connecting via Zoom, having a few cocktails, and clerk at Schwebel Goetz & Sieben, the firm I practice at now. carving pumpkins virtually (we are actually doing this, by the As a summer clerk, I provided support on variety of personal way)! This year has taught us the importance of interpersonal injuries case—from large catastrophic injury and wrongful connection. It has forced the committee members and myself to death cases to soft-tissue cases. I recognized that no matter the think outside the box of conventional networking events and to severity of the case, our clients contact our firm because they create meaningful interactions with our members in new ways. need our help and know that we can be an advocate for them; and no matter the severity of the case, the attorneys and staff If you hadn’t become a lawyer, what do you think you would at the firm put forth their best effort to ensure reasonable and have done for a living? fair compensation for the loss the clients have suffered. At If I hadn’t become a lawyer, I would probably do something the end of that summer, I knew very clearly what area of law I in the restaurant industry. I think it would be awesome to set wanted to practice, the clients I wanted to help, and the people menus for restaurants or critique food for a living. The other I wanted to work with. option would be to move to one of the Carolinas and learn to become a barbecue pit master. Food is life; never forget that. I You’re the networking and engagement committee co-chair for don’t plan on leaving private practice anytime soon, so for now the New Lawyers Section. Kind of a tough year to take that on, it’s pizza Fridays, pre-cooked ribs, and hotdogs for me! isn’t it? Why did you choose that committee? I agreed to serve as chair of the networking and engagement What do you like to do in your off-work time? committee of the New Lawyers Section of the MSBA because When I’m not working, you can find me catching up on a I recognize the importance of creating a space where we as Netflix or Amazon series, trying a new recipe, playing a round lawyers can come together, unwind, and talk candidly about the of golf, or wondering why I’m still a Minnesota Vikings fan.

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www.mnbar.org November 2020 s Bench&Bar of Minnesota 13 ‘PUBLISHED’ AND ‘UNPUBLISHED’ REVISITED

By Jeff Markowitz and Stephen Warner

14 Bench&Bar of Minnesota s November 2020 www.mnbar.org A primer on changes wrought in the wake of Justice David Lillehaug’s 2016 article on unpublished appellate decisions

ustice David Lillehaug garnered much attention when, in a December 2016 cover story in these pages, he called for five changes to the law governing publication J of Minnesota Court of Appeals opinions.1 Effective August 1, 2020, the repeal of Minn. Stat. §480A.08, subd. 3(c)2 and amendments to the Minnesota Rules of Civil Appellate Procedure3 have largely implemented three of Justice Lillehaug’s suggestions and furthered the spirit of the other two. Litigants have good cause to believe that citing unpublished court of appeals opinions in briefing is worthwhile. Such opinions are not binding, but they can—and do—persuade. The court of appeals has made that clear by expressly following unpublished opinions in at least three unpublished opinions and eight published opinions. And the Min- nesota Supreme Court has cited such unpublished opinions at least twice. But a few misconceptions must be dis- pelled to understand the lay of the land with respect to what were known, until the recent amendments, as unpublished decisions. As we will discuss in more detail, whether Minne- sota Supreme Court decisions are published or unpublished is irrelevant to whether they are binding; they are always binding precedent (as long as they are majority opinions, or unanimous4). Similarly, but for different reasons, whether district court decisions are “published” is irrelevant to whether they are binding or persuasive—they are never binding, and whether they are persuasive has nothing to do with Westlaw publication.

www.mnbar.org November 2020 s Bench&Bar of Minnesota 15 One misconception about unpublished decisions has been Under the amendments, litigants on appeal are now invited to weigh in on whether the court of appeals should issue a prec- that unpublished Minnesota edential opinion to clarify Minnesota law. They will be aided in such arguments by new and (in our view) more liberal criteria Court of Appeals opinions and governing whether to “publish.” The amendments to Minnesota’s appellate rules also includ- unpublished opinions of the ed three nomenclature changes (the latter two of which had been called for by Justice Lillehaug), which we adjust for in this Minnesota Supreme Court are article: “decisions” are now “opinions,” “unpublished” opinions are now “nonprecedential” opinions, and “published” opinions treated the same. are now “precedential” opinions.5 These new terms are not only required by the rules but more accurately describe permitted uses. The changes will likely require a bit of an adjustment period for both bench and bar, but, as one author has said, “The only languages that don’t change are dead ones.”6

Don’t be shy about citing nonprecedential Minnesota Court of Appeals opinions as persuasive authority Many of us are familiar with the statutory rule that stated: “[u]npublished opinions of the court of appeals are not precedential.”7 It was repealed, effective August 1.8 But an equivalent rule is now found in Minn. R. Civ. App. P. 136.01, subd. 1(c) (2020): “Nonprecedential [court of appeals] opinions and order opinions are not binding authority except as law of the case, res judicata, or collateral estoppel….”9 The Minnesota Supreme Court has long embraced the rule (since 2004, Vlahos), as has the court of appeals (first in 1993, Dynamic Air).10 Pursuant to the rule, the court of appeals has repeatedly (though not uni- formly) declined expressly to follow a nonprecedential opinion based on no stated reason other than that it was not preceden- The Minnesota Supreme Court at least occasionally tial.11 The district court errs if it cites such opinions “as binding cites to such nonprecedential opinions. In 2018, in support precedent.”12 For example, in Dynamic Air, the court of appeals of the statement that “[w]e have never held that a school faulted the district court for “relying upon an unpublished opin- generally stands in loco parentis with its students, and we will ion for the proposition that a restrictive covenant lacking a ter- not do so today,” the Court’s sole supporting citation was ritorial limitation is per se unenforceable.”13 a cf. citation to Hollingsworth v. State, No. A14-1874, 2015 But that is not a blanket prohibition on citing nonpreceden- WL 4877725, at *4 (Minn. App. 8/17/2015): “Hollingsworth tial court of appeals opinions. To the contrary, “attorneys are concedes that schools generally do not owe a duty of care in not prohibited from mentioning unpublished decisions in pre- loco parentis to protect students.”23 In 2019, the Court cited trial conferences, hearings, trials, memoranda, or briefs.”14 And, State by Swanson v. Amer. Family Prepaid Legal Corp., No. as the court of appeals concluded earlier this year in Adams v. A11-1848, 2012 WL 2505843, at *4 (Minn. App. 7/2/2012) Harpstead (a precedential opinion), “the district court commit- (and one of its own opinions) in support of the proposition that ted no error in considering an unpublished opinion only for its the Minnesota Attorney General’s parens patriae power to act persuasive value.”15 In support, it quoted case law, under which on behalf of all Minnesotans harmed by a pattern and practice nonprecedential opinions “may be ‘persuasive.’”16 of fraudulent conduct “includes the power to seek equitable While formerly found only in case law, Minn. R. Civ. App. P. restitution.”24 136.01, subd. 1(c), as amended (2020), now codifies the prin- Furthermore, at least as of December 2016, when Justice ciple that “nonprecedential opinions may be cited as persuasive Lillehaug “cast[] his vote for or against a petition for review, he authority.”17 no longer g[a]ve[] any weight to whether the Court of Appeals Moreover, the court of appeals has—on a number of occa- opinion is published or unpublished.”25 In 2013-2014, the Min- sions—expressly followed reasoning or guidance from its non- nesota Supreme Court granted 165 petitions for review (PFRs), precedential opinions. It has done so in at least three nonprec- of which 88 (51 percent) involved nonprecedential opinions.26 edential opinions (issued in 2004, 2009, and 2018).18 And it There are professional and ethical duties at play too.27 In has done so in at least eight precedential opinions: five issued Jerry’s Enterprises—a precedential legal-malpractice opinion— between 2017 and 2019 (after Justice Lillehaug’s 2016 article),19 the court of appeals concluded that the district court erred by and the other three issued in 2002, 2009, and 2010, respective- excluding expert attorney testimony regarding how nonprec- ly. 20 In State v. Roy (2009, precedential), the “exact issue” had edential court of appeals opinions “affected their understanding been resolved fewer than two years prior in a nonprecedential of the merger doctrine.”28 “The district court should not have opinion, and the court “adopt[ed]” that opinion’s reasoning.21 excluded testimony of how unpublished opinions of this court In Kruse (2018, precedential) the court followed two of its non- might inform an attorney of trends in the law.”29 precedential opinions.22 This suggests that, even if the court did Moreover, in an October 1993 column in this publication, not see an issue as warranting a precedential opinion in a prior the then-director of the Office of Lawyers Professional Respon- appeal, seeing the issue recur might change its mind. sibility (OLPR) wrote plainly:

16 Bench&Bar of Minnesota s November 2020 www.mnbar.org An attorney is preparing a response to a summary judg- This issue was squarely addressed by the court of appeals in ment motion brought against his client. Opposing counsel Allinder (precedential).36 In State v. Manns—an unpublished or- has failed to cite an unpublished opinion by the Minne- der—the Minnesota Supreme Court had “clarif[ied] that our sota Court of Appeals, adverse to the client, which is the holding in State v. Lee, that stays of adjudication are to be treated only opinion on point in the jurisdiction. Does the attor- as pretrial orders for purposes of appeal, applies only to stays of ney have to cite the unpublished opinion in light of Minn. adjudication in misdemeanor cases.”37 In Allinder, the court of Stat. §480.08, subd. 3, which provides that unpublished appeals rejected an argument that the unpublished status of the Court of Appeals opinions are not precedential? Manns order made it nonbinding: Yes, the attorney must disclose the adverse unpublished opinion.30 [T]his court is bound to follow supreme court precedent. There appears to be no authority limiting this duty to the That article is consistent with Minnesota Rule of Professional supreme court’s published opinions…. Because Manns ex- Conduct 3.3(a)(2), which refers to “legal authority,” not bind- pressly states that Manns is clarifying its holding in Lee, a ing/precedential legal authority: “A lawyer shall not knowingly… published opinion, this court must assume it was intended fail to disclose to the tribunal legal authority in the controlling to have precedential effect.38 jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” No party filed a PFR in Allinder, and the Minnesota Supreme Of course, both the Minnesota Supreme Court and court of Court has not weighed in on that issue. But, in our view, Allinder appeals have embraced the notion that “[t]he danger of miscita- is sound, and the Supreme Court would likely follow it. tion is great because unpublished decisions rarely contain a full recitation of the facts.”31 But this danger likely can be alleviated District court decisions are not binding, through thoughtful case-by-case legal reasoning. If the nonprec- even if “published” edential opinion is rich with facts and sound reasoning, then The other publication/nonpublication misconception deals arguably the danger of miscitation is entirely absent. If the non- with district court decisions. “A decision of a federal district precedential opinion consists of bare bones—bereft of material court judge is not binding precedent in either a different judicial facts and rationale—that will probably detract from its persua- district, the same judicial district, or even upon the same judge sive value. Then again, perhaps the opinion is light on facts, but in a different case.”39 The same is true of Minnesota state district the material facts are all there, or the rationale is instructive. Or court decisions,40 which have no “binding precedential effect.”41 perhaps the court got to the outcome you urge now, in the only They “lack precedential value.”42 They “govern only the rights of opinion to have addressed the issue. Citing to it for such ends the parties to the litigation.”43 is not “miscitation.” It is being as persuasive as you can be with No statute or rule makes publication of such decisions rele- what you have. vant to the analysis. Westlaw never “publishes” Minnesota state In short, if you find a nonprecedential court of appeals opin- district court decisions, apart from placing them in its electronic ion that supports your argument, don’t be shy about citing it. It database (we confirmed as much with Westlaw while preparing may not be binding. But it can persuade. (Indeed, as the eight this article). Westlaw does publish some federal district court examples cited above demonstrate, yesterday’s nonprecedential decisions, if they are “of general importance to the bench and decisions could become tomorrow’s precedential opinions.) And bar.”44 Westlaw’s publication criteria include whether the case even if you don’t like what you see in it, you may have an ethical involves issues of first impression, clarifies the law, reviews the duty to disclose it to the court. law, includes unique facts or holdings, or includes “newsworthy” content.45 District court judges may weigh in on whether West- Majority and unanimous Minnesota Supreme Court law should “publish” their decisions.46 opinions are binding, even if not “published” Notwithstanding the above, a court will at least occasionally One misconception about unpublished decisions has been note that a Minnesota state district court decision was “unpub- that unpublished Minnesota Court of Appeals opinions and un- lished,” as if to suggest that matters in assessing whether it was published opinions of the Minnesota Supreme Court are treated binding or persuasive.47 This appears to occur more frequently the same. Minnesota Supreme Court opinions (or, at least, or- when federal district court decisions are analyzed.48 ders), at least on occasion, are unpublished. This practice ap- Fortunately, when courts do squarely address whether publi- pears to be reserved at least generally for non-merits rulings, cation of district court decisions matters, they rightly conclude, such as whether to strike a notice of related appeal32 or grant at least generally: “district court decisions, published or not, can a PFR.33 be persuasive authority”49 and “the distinction between ‘pub- Admittedly, those non-merits decisions may often not in- lished’ and ‘unpublished’ federal district court decisions is mean- clude anything that might change, affirm, or clarify the law (but ingless. This is for the simple reason that such decisions bind rather simply grant or deny a PFR with no rationale), which ob- no one except the parties in the underlying case.”50 Whether viates the need to inquire whether they are binding on anyone Westlaw thinks that a nonprecedential district court decision is other than the parties. But when the Minnesota Supreme Court important does not make it more or less persuasive. in fact decides what the law is in an order, that decision is just as much binding precedent as the Court’s merits opinions. That The 2020 amendments will facilitate an informed conclusion flows from the basic rule that the Minnesota Court increase in precedential opinions of Appeals and district courts are bound by Minnesota Supreme Nothing in the 2020 amendments requires the Minnesota Court opinions.34 And it is “consistent with Article VI, section Court of Appeals to issue more precedential opinions. However, 2 of the Minnesota Constitution, which provides: ‘The court of that may very well be one of their primary effects, consistent appeals shall have appellate jurisdiction over all courts, except with the five changes Justice Lillehaug called for back in his De- the supreme court….’”35 cember 2016 article. Therein, he called for: www.mnbar.org November 2020 s Bench&Bar of Minnesota 17 1. the “repeal [of] section 480A.08, subd. 3, as an infringe- As to Justice Lillehaug’s fourth request, no rule change was ment on the judicial branch’s authority. The Legislature made to provide a mechanism for “upgrad[ing]” nonpreceden- should not be, and should not want to be, in the business tial opinions to precedential status. But the 2020 amendments of telling the courts when and how to issue and apply their do provide for a pretty decent second best, in new subparagraph own opinions”; (f) to rule 128.02, subdivision 1: 2. the striking of “the rule that special notice need be given when a non-precedential decision is cited”; In briefs filed with the court of appeals, a party may in- 3. the changing of “the designations ‘published’ and ‘unpub- clude an optional statement as to whether the court’s lished’ . . . to ‘precedential’ and ‘non-precedential’” “be- opinion should be precedential, nonprecedential, or an cause all Court of Appeals decisions are available online order opinion, and the party’s reasons, with reference to to all attorneys”; Rule 136.01, subd. 1(b).57 4. the Advisory Committee on the Minnesota Rules of Civil Appellate Procedure to “consider a rules change whereby As to that rule’s intent, Minnesota Court of Appeals Chief unpublished Court of Appeals opinions deemed especially Judge Susan Segal wrote on behalf of a committee of the court significant by the bar could be upgraded to precedential of appeals that, while the committee was neutral on whether to status”; and adopt it: 5. the court of appeals to “try to issue more precedential opinions.”51 We included this option based on our understanding that the bar desired the opportunity for counsel to be able to Because of the 2020 amendments, item one has occurred express their opinion on this question to the court. As in significant part, items two and three have occurred, and the some committee members have commented, we recognize spirit of items four and five have been substantially furthered. that parties may currently offer their thoughts on whether As to the first and second, the Legislature repealed subdivi- an opinion is precedential or nonprecedential by doing so sion 3(c) of Minn. Stat. §480A.08. That eliminated the legis- in their brief or during oral argument. And we welcome lative “publish only” limitation on the court of appeals issuing hearing the parties’ thoughts on this topic.58 precedential opinions in only one of five circumstances,52 and the requirement (which we all loved to hate) that litigants rely- The new rule’s invitation—when combined with the court ing on “[u]npublished opinions” provide copies to adverse par- of appeals’s demonstrated willingness to follow persuasive non- ties.53 precedential opinions in its precedential opinions59—provides a As to replacement criteria, the Minnesota Supreme Court next-best-thing means of somewhat upgrading nonprecedential enacted new subparagraph (b) to rule 136.01, subdivision 1, of holdings into precedential ones. the Minnesota Rules of Civil Appellate Procedure: Finally, in proposing that the court of appeals “try to” issue more precedential opinions, Justice Lillehaug floated a (b) In determining the written form [of the opinion], the goal of doubling the percentage issued in 2015 (8 percent).60 panel may consider all relevant factors, including whether Subsequently, the percentage shifted to around 7 percent in the opinion: 2016 (94 of almost 1,350 opinions issued);61 11 percent in 2017 (1) establishes a new principle or rule of law or clarifies (152 of 1,365);62 and 9 percent in 2018 (120 of 1,328).63 existing case law; The 2020 amendments—by inviting attorneys to weigh in (2) decides a novel issue involving a constitutional pro- on appeal, with the blessing of Minn. R. Civ. App. P. 128.02, vision, statute, administrative rule, or rule of court; subd. 1(f), and the benefit of more liberal precedential-opinion (3) resolves a significant or recurring legal issue; criteria in Minn. R. Civ. App. P. 136.01, subd. 1(b)—may well (4) applies settled principles or controlling precedent; provide a vehicle for collaboration on appeal between the ap- (5) involves an atypical factual record or procedural pellate bench and bar on these matters, leading to thoughtful history; increases in Minnesota precedent. (6) includes an issue pending before the United States We look forward to seeing the benefits of this collaboration Supreme Court or the Minnesota Supreme Court; unfold. s or (7) warrants a particular form based on the parties’ arguments, including, but not limited to, the parties’ statements allowed by Rule 128.02, subd. 1(f).54 JEFF MARKOWITZ is a senior associate at Arthur, These factors include liberalized criteria for issuance of Chapman, Kettering, Smetak & Pikala, P.A. and precedential opinions. Specifically, they expressly contemplate co-chairs the firm’s appellate practice group. potential issuance of precedential opinions to “clarif[y] exist- [email protected] ing caselaw” (factor 1) or “resolve[] a… recurring legal issue” (factor 3), which conceivably could be done even if governing STEPHEN WARNER is a shareholder at Arthur, case law is already clear, or a governing statute is unambiguous. Chapman, Kettering, Smetak & Pikala, P.A. and As to Justice Lilllehaug’s third request, the 2020 rule co-chairs the firm’s insurance coverage and amendments made the nomenclature changes he proposed, appellate practice groups. primarily by amending rule 136.01 of the Minnesota Rules [email protected] of Civil Appellate Procedure to replace “unpublished” with “nonprecedential” and “published” with “precedential.”55 These Both enjoy partnering with trial counsel on changes are also reflected in amended rule 128.02, subdivision appeal, appellate consulting, and judging 1(f) (discussed next). The term “opinion” also replaces “decision” practice arguments. throughout rule 136.56

18 Bench&Bar of Minnesota s November 2020 www.mnbar.org Notes App. 1/13/2004) (“While Bonanza Grain is not 530, 537 n.5 (Minn. 2013); see Kmart Corp. v. precedential, we adopt its reasoning….”); see Cnty. of Stearns, 710 N.W.2d 761, 769-70 (Minn. 1 Lillehaug, David L., Ebnet, Nathan J., “A Fresh also Ehrman v. Adam, No. A08-2120, 2009 WL 2006) (“Decisions of district courts likewise are not Look at the Problem of Unpublished Opinions; 2746749, at *4 (Minn. Ct. App. 9/1/2009). regarded as precedent for retroactivity purposes.”). Why It’s Time to Reconsider Minnesota’s Ap- 19 See In re Welfare of Children of A.M.F., 934 43 In re Guardianship of Tschumy, 853 N.W.2d 728, proach” at 19, Bench & Bar of Minnesota (Dec. N.W.2d 119, 123 (Minn. App. 2019); State v. De- 758 (Minn. 2014) (Stras, J., dissenting). 2016). fatte, 921 N.W.2d 556, 562 (Minn. App. 2018), 44 https://legal.thomsonreuters.com/en/solutions/gov- 2 2020 Minn. Laws, ch. 82, S.F. No. 3072, aff’d, 928 N.W.2d 338 (Minn. 2019); Kruse v. ernment/court-opinion-submission-guidelines. §3, located at https://www.revisor.mn.gov/ Comm’r of Pub. Safety, 906 N.W.2d 554, 559 45Id. laws/2020/0/82/laws.0.3.0#laws.0.3.0\ (Minn. App. 2018); Compart v. Wolfstellar, 906 46 Id. 3 https://www.mncourts.gov/mncourtsgov/media/ N.W.2d 598, 610 n.7 (Minn. App. 2018), review 47 See, e.g., Stover v. Home Valu, Inc., No. 02- Appellate/Supreme%20Court/RecentRulesOrders/ denied (Minn. 4/17/2018); Linert v. MacDonald, CV-07-1394, 2008 WL 8905530 (Minn.Dist. Administrative-Order-Promulgating-Amendments- 901 N.W.2d 664, 669 (Minn. App. 2017). Ct. 12/3/2008 (“The Dakota County dis- to-the-Rules-of-Civil-Appellate-Procedure-Effec- 20 See State v. Zais, 790 N.W.2d 853, 861 (Minn. trict court order, which is an unpublished, unre- tive-August-1-2020.pdf App. 2010), aff’d, 805 N.W.2d 32 (Minn. 2011); viewed order, is not binding upon this Court.”). 4 When one justice is disqualified, and the remain- State v. Roy, 761 N.W.2d 883, 888 (Minn. App. 48 See, e.g., Murphy by Murphy v. Harpstead, No. ing six are equally divided so that there is no 2009); Reinsurance Ass’n of Minn. v. Timmer, CV 16-2623 (DWF/BRT), 2019 WL 6650510, at unanimous or majority opinion, “no precedent is 641 N.W.2d 302, 314 (Minn. App. 2002) *4 (D. Minn. 12/6/2019), aff’d as modified, No. made.” See Sig Ellingson & Co. v. Polk Cnty. State (“While not precedential, we are persuaded by CV 16-2623 (DWF/BRT), 2020 WL 256194 (D. Bank of Crookston, 242 N.W. 626, 627 (Minn. the Frost Paint analysis.”), review denied (Minn. Minn. 1/17/2020); Okon v. Knutson, No. 18-CV- 1932) (Dibell, J.). Once, in Nelson, the Court 5/14/2002). 0191 (DWF/TNL), 2019 WL 2030568, at *8 issued a per curiam opinion without any indica- 21 Roy, 761 N.W.2d at 888. (D. Minn. 1/22/2019), report and recommendation tion of division, and stated that it was “without 22 Kruse, 906 N.W.2d at 559. adopted, No. CV 18-191 (DWF/TNL), 2019 WL significant precedential value.” Nelson v. Nelson, 23 Fenrich v. The Blake Sch., 920 N.W.2d 195, 202- 1277521 (D. Minn. 3/20/2019). 189 N.W.2d 413, 416 (Minn. 1971). But that 03 (Minn. 2018). 49 United States v. Copeland, No. 1:19-CR-9- appears to have been intended to mean not that 24 State v. Minn. Sch. of Bus., Inc., 935 N.W.2d 124, MHC-RGV, 2020 WL 1131026, at *3 (N.D. Ga. the opinion was not binding, but rather that it 133-34 (Minn. 2019). 3/9/2020). lacked persuasive value, given that “the points 25 Supra note 1, “A Fresh Look at the Problem of 50 Cont’l W. Ins. Co. v. Costco Wholesale Corp., No. raised [were] without force.” Id. The supreme Unpublished Opinions” at 18. C10-1987 RAJ, 2011 WL 3583226, at *3 (W.D. court and court of appeals have followed Nelson. 26 Id. Wash. 8/15/2011) See, e.g., Davis v. Davis, 235 N.W.2d 836, 838 27 Petition in Supreme Court for Review of Deci- 51 Lillehaug and Ebnet, supra note 1 at 19. (Minn. 1975); Melius v. Melius, 765 N.W.2d 411, sions of the Court of Appeals, 3 Minn. Prac., 52 (c) The court of appeals may publish only those 417 (Minn. App. 2009). Appellate Rules Annotated R 117. decisions that: 5 https://www.mncourts.gov/mncourtsgov/media/ 28 691 N.W.2d at 495. (1) establish a new rule of law; Appellate/Supreme%20Court/RecentRulesOrders/ 29 Id. (2) overrule a previous court of appeals’ deci- Administrative-Order-Promulgating-Amendments- 30 Johnson, Marcia A., “Advisory Opinion Service sion not reviewed by the supreme court; to-the-Rules-of-Civil-Appellate-Procedure-Effec- Update,” Bench & Bar of Minnesota (Oct. 1993). (3) provide important procedural guidelines tive-August-1-2020.pdf 31 Vlahos, 676 N.W.2d at 676 (citing Dynamic Air, in interpreting statutes or administrative 6 Crystal, David, A Little Book of Language, chapter 502 N.W.2d at 801). rules; 21, paragraph 1 (Yale University Press 2010). 32 See Menard, Inc. v. Cnty. of Clay, No. A16-0415, (4) involve a significant legal issue; or 7 Minn. Stat. §480A.08, subd. 3(c) (2018). 2016 WL 7208722, at *3 (Minn. 5/16/2016). (5) would significantly aid in the administra- 8 2020 Minn. Laws, ch. 82, S.F. No. 3072, 33 See Gunufson v. Swanson, No. C4-95-1446, 1996 tion of justice. §3, located at https://www.revisor.mn.gov/ WL 686121, at *1 (Minn. 11/20/1996). Minn. Stat. §480A.08, subd. 3(c) (2018), laws/2020/0/82/laws.0.3.0#laws.0.3.0\ 34 State v. Curtis, 921 N.W.2d 342, 346 (Minn. repealed by 2020 Minn. Laws, ch. 82, S.F. No. 9 Supra note 3. 2018). 3072, § 3, located at https://www.revisor.mn.gov/ 10 Vlahos v. R&I Constr. of Bloomington, Inc., 676 35 Id. (quoting Minn. Const. art. VI, §2 (emphasis laws/2020/0/82/laws.0.3.0#laws.0.3.0\. N.W.2d 672, 676 n.3 (Minn. 2004); Dynamic added by court)). 53 Id. Air, Inc. v. Bloch, 502 N.W.2d 796, 797, 800-01 36 State v. Allinder, 746 N.W.2d 923 (Minn. App. 54 Supra note 3. (Minn. App. 1993). 2008). 55 Id. 11 See, e.g., Hoff v. Surman, 883 N.W.2d 631, 636 37 State v. Manns, No. A06-478, 2006 WL 56 Id. (Minn. App. 2016); Columbia Cas. Co. v. 3M 8462127, at *1 (Minn. 5/24/2006). 57 Id. Co., 814 N.W.2d 33, 38 (Minn. App. 2012). 38 Allinder, 746 N.W.2d at 925 (citation omitted). 58 Letter from Chief Judge Susan Segal to Justice 12 Vlahos, 676 N.W.2d at 676 n.3. 39 See Nygard v. Rogers, No. A14-2175, 2015 WL Natalie Hudson and Commissioner Rita De- 13 502 N.W.2d at 800. 7201171, at *3 (Minn. Ct. App. 11/16/2015) Mules (July 12, 2020) (on file with authors). 14 Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & (quoting Camreta v. Greene, 563 U.S. 692, 709 59 Supra § I. Lindgren, Ltd., 691 N.W.2d 484, 494 (Minn. n.7 (2011) (quoting 18 J. Moore et al., Moore’s 60 Lillehaug & Ebnet, supra note 1, at 18-19. App. 2005), aff’d as modified, 711 N.W.2d 811 Federal Practice §134.02[1] [d], p. 134–26 (3d 61 See Minnesota Judicial Branch, Report to (Minn. 2006). ed. 2011))) ; see Charles W. Tyler, The Adjudica- the Community: The 2016 Annual Report of 15 947 N.W.2d 838, 847 (Minn. App. 2020). tive Model of Precedent, 87 U. Chi. L. Rev. 1551, the Minnesota Judicial Branch 52 (2016) at 16 Id. at *846 (quoting Donnelly Bros. Constr. Co. 1597 (2020); e.g., Howard v. Wal-Mart Stores, 52; Minnesota Judicial Branch, Report to the v. State Auto Prop. & Cas. Ins. Co., 759 N.W.2d Inc., 160 F.3d 358, 359 (7th Cir. 1998).. Community: The 2017 Annual Report of the 651, 659 (Minn. App. 2009), review denied 40 But see State v. Behena-Vargas, No. A03-1954, Minnesota Judicial Branch 53 (2017). (Minn. 4/21/2009)); see Dynamic Air, 502 2004 WL 1327804, at *4 n.2 (Minn. Ct. App. 62 Minnesota Judicial Branch, Report to the N.W.2d at 800 (“At best, these opinions can be 6/15/2004) (noting but not reaching argument Community: The 2017 Annual Report of the of persuasive value.”). that “the district court erred by applying the Minnesota Judicial Branch 53 (2017). 17 Supra note 3. doctrine of stare decisis to rely on a district court 63 Minnesota Judicial Branch, Report to the 18 Williams v. Pine Cnty. Sheriff’s Dep’t, No. A17- opinion”). Community: The 2018 Annual Report of the 0964, 2018 WL 1701888, at *2 n.1 (Minn. 41 O’Rourke v. O’Rourke, 220 N.W.2d 811, 823 Minnesota Judicial Branch 49 (2018). Ct. App. 4/9/2018); Afremov v. Amplatz, No. (Minn. 1974). A03-448, 2004 WL 77851, at *4 (Minn. Ct. 42 Green v. BMW of N. Am., LLC, 826 N.W.2d www.mnbar.org November 2020 s Bench&Bar of Minnesota 19 Rules are Rules. Really. A high-profile federal case reminds us that court rules are not just suggestions.

By David F. Herr

20 Bench&Bar of Minnesota s November 2020 www.mnbar.org a reason and normally are followed. And hear the defendants’ motions to dismiss we should be able to expect the courts their claims under Fed. R. Civ. P. 12(b) and our adversaries to follow them. (6). Third, the court ordered these defen- Obviously, it helps to know the dants to produce data on every prescrip- rules, which requires reading them. tion filled by any of their pharmacies na- But none of us can keep all the rules in tionally for a 13-year period, despite the The Code is more mind. There is a good reason that most fact the upcoming bellwether trial would litigators have a paper-bound rulebook relate solely to sales in Ohio and affect- what you’d call close to the workspace on their desks (or ing the two plaintiff counties. The entire sometimes electronically made part of MDL proceeding would not include tri- “guidelines” their workspace). Even when we think als of cases filed elsewhere in the country. we know the rule, we learn to look it up Under the Supreme Court’s Lexecon de- than actual rules.1 anyway, just to be sure. cision, the transferee court would not be A recent 6th Circuit decision, In re able to try the claims of non-Ohio plain- – Captain Barbossa National Prescription Opiate Litigation,2 tiffs—they would have to be remanded puts the imperative nature of court rules for trial to the district where they were into sharp focus. The twin holdings in the initially filed.3 case will make it an oft-cited precedent: So, what is so extraordinary—warrant- First, rules are to be followed. Second, the ing issuance of a writ—about these ac- rules apply to judges too. Just as judges tions by the transferee judge? Sure, they can expect the rules to be followed, the did not exactly conform to important parties should be able to rely on judges to provisions of the rules of civil procedure, follow them. but this was a massive MDL, and “ex- Opiates is a decision that is important traordinary cases require extraordinary in complex MDL litigation, but is useful measures,” right? That may have been guidance in all types of cases. The judge the transferee judge’s view, but it was not was assigned by the Judicial Panel on Mul- the 6th Circuit’s. It explicitly rejected the tidistrict Litigation to preside over mas- district court’s allowance of the amend- sive litigation involving claims brought ment to add new, previously abandoned by individuals and classes against manu- claims on the eve of trial. The rules al- facturers and distributors of Oxycontin low amendments, but the pretrial order in and similar opiate drugs. The litigation the case set a specific deadline for seek- comprised a wide variety of cases with a ing them. Rule 16 establishes a simple, similarly wide variety of plaintiffs—indi- and important, requirement to guide the viduals, classes, businesses, and various courts in considering modification of the governmental entities and subdivisions. deadline: a showing of “good cause.”4 The assigned judge entered several orders The 6th Circuit defined the “good that some of the defendants found unfair cause” requirement of Rule 16 as requir- e practice in a world of and inconsistent with the rules—and the ing a showing that “despite their diligence rules—often familiar rules, 6th Circuit agreed, issuing the extraordi- they could not meet the original dead- but also sometimes surpris- nary remedy of mandamus, requiring the line.”5 The court found that neither the es. That surprise may be a judge to apply the rules as written. The parties nor the court had even attempted ruleW we did not know of, or had forgotten, orders were entered in cases brought by to establish diligence. The circuit court or it may just be a rule we have gotten two Ohio counties that were headed for rejected the trial judge’s superficial asser- into the habit of ignoring until it is sud- early “bellwether” trials. tion that it would be “efficient” to allow denly enforced. Why does this happen? The petitions in Opiates complained of the extension of the deadline. And should it? three orders issued by the transferee judge The court held that the defendants The first principle to understand is in those cases. First, the court allowed the had no other means of remedying the that, with all due deference to Captain plaintiffs to amend their complaint to as- harm caused by the district court’s Barbossa, the rules of court are really sert claims that they had previously dis- amendment order and found that the de- rules—not just “guidelines.” But then, avowed and did so 19 months after the cision “manifests a persistent disregard of we are not pirates either. Most procedural deadline for pleading amendments in the the federal rules”6 and held that that dis- rules exist to provide orderly and efficient pretrial order and a year after the close regard warranted issuance of an extraor- handling of cases. They were created for of discovery. Second, the court refused to dinary writ of mandamus. www.mnbar.org November 2020 s Bench&Bar of Minnesota 21 TABLE OF RULES PROVIDING FOR EXCEPTIONS

Minnesota Rules of Civil Procedure Minnesota Rules of Civil Appellate Procedure

Court may supersede provisions of rules Rule Number Applicable situation 102 (except as prohibited in Rule 126.02) Standard to be excused for failure to waive service of 4.05 summons 107.01 Grounds for requiring issuance of cost bond

16.02 Modification of scheduling order 110.02, subd. 3 Request for extension of time to complete transcript Excuse for failure to waive objections to pretrial 26.01(c)(2) disclosures 114.01 Grounds for requiring issuance of cost bond Standard for discovery of ESI after showing of it not being Extension of deadline for forwarding of record in 26.02(b)(2) & 45.04(a)(4) 114.03, subd. 2 reasonably accessible administrative appeal. Standard for waiver of requirement that deposition 32.03 testimony be present in non-stenographic form 115.03, subd. 2 Grounds for requiring issuance of cost bond Leave to serve more than 50 interrogatories or set different Grounds for deadline for service and filing of itemized list 33.01(a) & (b) 115.04, subd. 3 deadline for responding of contents of the record Grounds for issuance of orders for physical exams and Grounds for extension of time (except changing time to 35.01 & .04 126.02 depositions of medical experts appeal) Grounds for admission of attested copy of foreign record 44.02 or a summary 131.02, subd. 1 Grounds for extension of time for filing brief

47.04 Grounds for excusing juror from service 132.01, subd. 3 Overlength briefs Extension of deadline for motion for new trial (and by 59.03 incorporation, other post-trial motions) 133.01 Excuse from mandatory mediation in family law cases

Minnesota General Rules of Practice 139.04 Grounds for disallowance of costs or disbursements

Standards for overcoming presumption that post-plea criminal Deadline for seeking recusal in Supreme Court and Court 4.02(e) 141.01(b) & 141.02(b) proceedings must be open to visual or audio coverage of Appeals, respectively Obtaining access to Confidential Financial Source Deadline for moving to reinstate appeal following default 11.05(a) 142.02 Documents by appellant Request for exemption from mandatory e-filing and 14.01(b)(3); 14.01(b)(5) e-service Minnesota Rules of Criminal Procedure 111.04 Amendment of scheduling order 5.05 Extension of time for Rule 8 appearance Motion for use of interactive video teleconference for 131.02(d)(3) & (5) court proceedings. “Good cause” considerations set forth 6.06 Extension of time for misdemeanor trial in Minn. Gen. R. Prac. 131.02(d)(4) Excuse from attendance at minor settlement approval Extension of deadline for notice of intent to seek 145.04 7.03 hearing aggravated sentence

146.01 & .05(i) Continuance of trial date set for complex cases 8.04(c) Extension of time for omnibus hearing

Excuse from meet-and-confer requirements before hearing 303.03(c) 9.01, subd. 2(1) & (2) Standard for requiring prosecutor to disclose information motions Grounds for why notice to opposing party is not required 303.04(e) 9.03, subd. 6 Standard for motion to make discovery motion in camera for emergency motion

304.04 Grounds for amendment of scheduling order 10.01, subd. 2 Standard for relief from waiver of defense or objection

Excusing counsel who will try case from pretrial Standard for relief from waiver of attack on jurisdiction in 305.02(a) 10.02 conference misdemeanor case

364.05 Grounds for continuance of hearing 10.03 Motions relating to omnibus hearing

377.09, subd. 5 Grounds for obtaining hearing 11.06 & 11.09 Continuance of hearing or trial and deadline for trial

Motions re: timing of hearing on evidentiary matters and 12.04, subds. 3 & 12.07 512(h) Grounds for continuance of trial in conciliation court pretrial conferences

520(b) Grounds for vacation of judgment 18.04, subd. 1 Disclosure of grand juror’s name on motion of defendant

610 Time to respond to motion 19.04, subds. 4 & 5 Date for arraignment and omnibus hearing

Extension of time to obtain transcripts of referee 611 26.02, subd. 5(2) Allowance of late challenge to juror for cause proceedings Timing for defendant’s motion for new trial and service of 26.04, subds. 3 & 4 707 Extension of deadline for filing grand jury transcript supporting documents Standards for court of appeals to suspend application of 28.01, subds. 3 & 4(3)(g) 904.05 Removal of guardian ad litem by judge rules

Minnesota Rules of Evidence 28.02, subd. 9 Deadline for appellant to order transcript

Deadline for motion by accused to offer evidence of 29.01, subd. 3 & 29.03, Standards for supreme court to suspend application of 412(2)(A) previous sexual conduct of victim subd. 3(f) rules Standard for receiving data for limited purpose of showing 703(b) 29.04 Time for petition for review from court of appeals basis for expert opinion

902 Self-authentication of foreign public documents

22 Bench&Bar of Minnesota s November 2020 www.mnbar.org The court issued its writ on the basis of the untoward allowance of the amendment, but also observed that Fed. R. Civ. P. 12(b) expressly allows a party to bring a motion to dismiss and that a district court may not simply refuse to adjudicate motions properly brought under the rule. That observation was intended to guide the district court in further proceedings on remand. Similarly, the court analyzed the scope of discovery contained in Fed. R. Civ. P. 26(b)(1)—limited it to the fest injustice.” This rule should provide a Notes claims and defenses of the parties fol- clear signpost to lawyers and to judges— 1 Pirate Captain Barbossa appeared in the lowing the 2015 amendments and pro- Rule 1.02 and Rule 1 of the civil rules Pirates of the Caribbean movie The Curse of portionate to the needs of the case. The allow flexibility in the application of the the Black Pearl (2003), and famously rejected court held that discovery of evidence that rules, but they require a showing that a captive’s claim of a right of return to shore was not relevant to the Ohio counties’ flexibility is required in a particular case. under the Pirate’s Code, stating: claims was not proportionate to the par- A showing of good cause, or the need to First, your return to shore was not part of ticular cases and was therefore improper. prevent manifest injustice, must be made our negotiations nor our agreement so I Opiates will prove important to mul- by the parties (or one party) and the must do nothing. And secondly, you must tidistrict litigation as a reminder that all court must explain why the rule as writ- be a pirate for the pirate’s code to apply and judges, including MDL transferee judg- ten should not be applied. you’re not. And thirdly, the Code is more es, need to apply the rules as written. It The civil rules include at least a dozen what you’d call “Guidelines” than actual based its decision, in part, on the rule rec- situations (and the general rules more rules. Welcome aboard the Black Pearl, ognized by the Supreme Court in Gelboim than a score) where “good cause” is the Miss Turner. (Emphasis added). v. Bank of America,7 that unless cases in standard for relief from or modification 2 956 F.3d 838 (6th Cir. 2020) (“Opiates”). a MDL docket are actually consolidated, of the rules. The many rules explicitly 3 Lexecon Inc. v. Milberg Weiss Bershad Hynes & they retain their individual status and embracing the “good cause” standard Lerach, 523 U.S. 26 (1998). need to be treated as separate cases. But are set forth in Table 1. Lawyers should 4 Fed. R. Civ. P. 16(b)(4) the Opiates holding on the legal force of not give this requirement short shrift. 5 956 F.3d at 943, quoting Leary v. Daeschner, court rules should be even more compel- “Good cause” is not a rigid standard and 349 F.3d 888, 907 (6th Cir. 2003). ling for the rest of the courts’ dockets. is inherently context sensitive. Even 6 Id. at 845. “Rules are rules” does not mean they where the rules do not specifically allow 7 Gelboim v. Bank of America Corp., 574 U.S. require a Draconian interpretation. The for modification, any rule is potentially 405 (2015). federal rules—and the Minnesota rules changeable in some respect. The facts 8 Minn. R. Civ. P. 1; cf. Fed. R. Civ. P. 1. Some that mirror them—are given broad and and circumstances constituting good of the Minnesota rules that expressly require justice-seeking interpretation. Each cause should be demonstrated by affidavit “good cause” to obtain modification of the includes a general provision requiring and with particularity. One particularly rules are set forth in Appendix A. courts to interpret and apply the rules to helpful fact or argument to establish is 9 See, e.g., T.A. Schifsky & Sons, Inc. v. Bahr accomplish the “just, speedy, and inex- diligence by the party seeking relief from Const., LLC, 773 N.W.2d 783 (Minn. 2009). pensive determination of every action.”8 the strict application of a rule. Conversely, Rule 1 means something too, and should the most compelling arguments from an guide the courts toward a fair set of pro- opponent may be reliance on the rule and cedures for every case. prejudice if it is modified by the court. DAVID HERR litigates Minnesota’s rules are similar in most There are, unfortunately, too many cases complex cases and has material ways to their federal counter- where a party seeking to avoid a rule handled appeals in many parts, and the Minnesota Supreme Court simply pleads for relief without making appellate courts, including has frequently recognized the value of any meaningful showing that it is justified the United States Supreme federal decisions interpreting the rules.9 or meets the “good cause” or “interest of Court. He practices with Minnesota’s rules advisory committees justice” standard. Maslon LLP and has have not followed federal rules changes Our rules serve important purposes of contributed many years in lockstep, but they have often found establishing procedures for the efficient of service as reporter for several Minnesota that conforming Minnesota’s rule to their and consistent administration of justice. Supreme Court rules advisory committees on federal counterparts makes sense. They foster predictability. They even court rules. He is grateful to Mitchell Hamline Minnesota has another key rule— allow for exceptions. Lawyers—and law student Carly Johnson for her helpful Rule 1.02 in the General Rules of Prac- judges—can do well to follow both research on Minnesota law on the rules. tice, which allows a judge to modify the the rules and, where appropriate, the [email protected] application of the rules “to prevent mani- exceptions. s www.mnbar.org November 2020 s Bench&Bar of Minnesota 23 ANATOMY OF A PRIVACY POLICY

CANCEL AGREE

Website privacy policies long his article examines whether, and how, the mundane privacy policy link located at the bottom of most websites becomes a seemed a mundane subject— contract between the site sponsor and innumerable site users. In an effort to manage data-related class actions, website sponsors continueT to activate the arbitration policies contained in the site’s terms but they’re increasingly under and conditions or privacy policy. The motion to compel arbitration is the scrutiny as a new form of common gateway to contract formation analysis in the federal courts. When the privacy policy is elevated to a contract between the site spon- actionable contract sor and its users, all of its terms apply. In a logical extension of web contract formation principles, site sponsors are now defending against breach of contract claims based on privacy policy language that may never have By Julie A. Lewis received a serious legal review.

24 Bench&Bar of Minnesota s November 2020 www.mnbar.org MANDATORY ARBITRATION IS terms are posted via a link at the bottom because the screens were uncluttered, A DOUBLE-EDGED SWORD of the webpage or “hybrid wrap”/“sign-in the notice text was close to the sign-up Like so many innocuous decisions, wrap” agreements in which the user regis- button and the terms and privacy policy Epic Systems Corp. v. Lewis was about one ters to use the internet product or service hyperlinks, while not underlined, were in thing—whether the Federal Arbitration and the signup screen requires asset to blue text and were the only hyperlinks on Act’s savings clause preempts the arbitra- the terms of use before the user can ac- the page.4 tion obligation in an employment con- cess the product or service. tract—and then became about something Courts generally do not find notice or The double opt-in and other else.1 After Justice Gorsuch firmly reiter- assent to a browse wrap agreement be- contract questions ated the right to impose arbitration by cause the terms are not made plain for the As data privacy litigation gains speed, contract, enforcing that right has become user on the webpage. In 2016, the 7th Cir- web businesses have accelerated web page a cornerstone of privacy policy litigation. cuit found in Sgouros v. TransUnion Corp. improvements to try to stay ahead of it. In Current class action privacy policy that the parties did not agree to arbitrate addition to updating website agreements pre-emptive motion practice focuses on disputes related to TransUnion’s “FREE to add the design indicators of assent, whether disputes should be forced into ar- credit report” and “$1 credit score” be- companies are updating their arbitration bitration as a matter of contract between cause the box that the user clicked to au- policies to strengthen their position in the site sponsor and the site user. Courts thorize TransUnion’s use of the plaintiff’s court, but with mixed results. first look to find a contract. If the web- personal information did not mention the site’s terms or privacy policy is a contract, website’s Service Agreement.2 Double opt-in: In Soliman v. Subway it is a contract for all intents and purposes. Franchisee Advertising Fund Trust Ltd. Blue typeface. A vital part of web con- (03/05/2020), a double opt-in for pro- Assent: Inquiry notice and tract formation analysis is the court’s motional sandwiches by texting “Sub- affirmative acknowledgement evaluation of the design and visual as- way” and then responding to “Reply w/ Federal courts are more than willing pects of the webpages under review. In ur ZIPCODE as ur sig 2agree 2 SUBWAY to enforce mandatory arbitration terms March 2020, the Northern District of offers” did not bind the plaintiff to the hy- found in website policies if the policies California decided Arena v. Intuit, Inc., perlinked terms and conditions contain- provide adequate notice of the term to holding that Intuit, Inc.’s TurboTax signing an arbitration agreement.5 the site user and if the facts indicate that in wrap agreement did not create a valid the site user assented to the term. (Cer- arbitration agreement.3 While the agree- Email modification: In Wilson v. Redbox tain “wrap” agreements convey assent, ment’s hyperlink appeared immediately Automated Retail, LLC (03/25/2020), while others do not.) State law governs under the TurboTax sign-in button and a site user could not have agreed to an contract formation; however, it is not the sign-in page contained an explicit email modification adding an arbitration overstatement to say that the federal statement that signing in constituted as- clause when she could not have assented courts, in applying state law, are creating sent to the terms, the hyperlinked text to the original terms due to the site’s clut- a set of consistent expectations for web- itself was not sufficiently conspicuous. tered and confusing video rental screen.6 site legal agreements. The hyperlink was presented in blue The contract formation standards un- typeface but was not underlined. Citing Pre-checked box: In Lundbom v. Schwan’s der development by the federal courts are the 1st Circuit’s 2018 decision in Cul- Home Service, Inc. (05/26/2020), the based on the court’s close scrutiny of the linane v. Uber Techs, Inc., the Arena court court applied the perspective of “a rea- visual presentation on the user’s screen. rejected Intuit’s argument that the color sonably prudent smartphone user” to find Some of the world’s largest website busi- difference was adequate inquiry notice. that the plaintiff agreed to receive text nesses can currently be found on either The court relied on plaintiff’s expert wit- marketing messages by default when her side of the line. ness testimony from a cognitive scientist food delivery registration included a pre- to conclude (1) a consumer would be less checked box indicating consent to re- Contract of adhesion formation. Courts likely to notice text in a lighter shade ceive SMS marketing communications.7 refer to web agreements as contracts of than other text on the same page, (2) the adhesion. Users must agree before they sign-in page contained multiple, confus- Opt out: In Page v. Alliant Credit Union can access the web information, product, ingly similar hyperlinks (i.e., Turbo Terms (05/18/2020), credit union members were or service. To enforce a web agreement, of Use/Turbo Tax Terms of Use), and bound by an emailed arbitration amend- the site sponsor must prove that the user (3) less than 0.55% of users logging into ment to their membership agreement had actual or inquiry notice of the online TurboTax’s website actually clicked open when they did not read the email and did contract’s terms. Most related litigation is the terms hyperlink. Even though users not opt out.8 over inquiry notice questions. were specifically required to accept the Inquiry notice of an online agreement “TERMS” to use the services, the court Integration clause: In Hutt v. XpressBet, depends on the design and content of the declined to find assent because the accep- LLC (05/29/2020), the defendant’s dis- website and the agreement’s webpage. tance made no reference to knowledge of closure of plaintiffs’ multiple wagering Online contracts may present as “click- the terms. accounts was actionable only in arbitra- wrap” agreements in which the user clicks By contrast, on 4/23/2020, the same tion because the integration clause in the an “I agree” box at the end of the terms, court found user assent to arbitrate in Terms of Wagering incorporated the ar- “browse wrap” agreements where the DoorDash, Inc.’s sign-wrap agreement bitration clause into the privacy policy.9

www.mnbar.org November 2020 s Bench&Bar of Minnesota 25 Unilateral contract modificationtract claims in a data privacy violation from the PII owner: data interception, clause: In Miracle-Pond v. Shutterfly, Inc. complaint. As they develop the new law sharing data with third parties for sale or (05/15/2020), the plaintiff’s continued use of web-based contract formation, the fed- otherwise, and data breach/inadequate of the site constituted acceptance of a sub- eral courts are at the same time develop- security. sequent arbitration agreement modifica- ing the parameters for actionable claims, tion because the original terms of use con- largely in tandem. Data interception: The U.S. District tained a valid unilateral change in terms State legislation that provides for a Court for the Northern District of Cali- provision.10 (But see Engen v. Grocery De- private right of action includes: fornia found a contract was formed livery E-Services USA Inc. (04/10/2020), through a conglomeration of Google in which the U.S. District Court in Min- California Consumer Privacy Act privacy policies connected to its dif- nesota declined to find a valid agreement (CCPA):13 Effective January 1, 2020, this ferent devices, platforms, and services. to arbitrate modification where Hello- act requires a for-profit business with an- Every time a user’s PII was shared with Fresh’s numerous emails to the plaintiff nual revenues of over $25 million—or other non-engaged Google services, the did not call attention to the modification one that buys, receives, or sells personal contract was breached.15 When, for ex- and were sent for marketing purposes.11) information of 50,000 or more consum- ample, the Android device privacy policy ers—to meet certain obligations when assured customers that their information DATA PRIVACY LITIGATION: it operates in California. (“Operates” would be aggregated and de-identified or FROM ASSENT TO CONSENT includes sponsoring a website that is ac- when the Google Wallet privacy policy Arbitration clause litigation has, even cessible to California residents.) If the promises that Google would notify users in the past 90 days, tested and defined our business may collect personal informa- if certain PII is shared with third parties, understanding of web-based contracts be- tion from California residents, the busi- those promises carried over to Google’s tween site sponsors and site users. Now ness must: internal sharing of PII among any of its that we know that site sponsors can en- various platforms and services. force their arbitration agreements with n provide a clear and conspicuous users when assent is present, site users link for California residents to opt Data sharing: Similarly, a breach of con- also know that they can hold site spon- out of the sale of their personal in- tract claim against Facebook survived a sors accountable for the promises made in formation; motion to dismiss when Facebook dis- near dormant (until now) website terms n inform California site users of closed user information to its whitelisted and conditions and privacy policies. their right to be forgotten; apps and business partners without the Beyond free-sandwich text opt-ins, n describe the types of PII that is user’s permission and without giving us- interest in how personal information is collected; ers the ability to prevent the disclosure.16 being used runs high. Personal data is n allow California site users to ob- Facebook’s data use policy promised that now a commodity. More than general tain a copy of their PII collected by apps would be allowed to use information complaints filed under the site sponsor’s the company or destroy the infor- only in connection with the user’s friends. terms and conditions, violations of the mation at the consumer’s request Allegations that Facebook conducted ex- site sponsor’s privacy policy lead to recog- with verification to the consumer; traneous undisclosed sharing of user PII nized and demonstrable damages due to n make available an email address with its business partners stated a breach unauthorized access to or use of the site and toll-free number for data infor- of contract claim. user’s personal information. mation requests; n train employees on the CCPA Data breach/inadequate security: Unity- Personally identifiable information obligations; and Point Health is a healthcare network in Personally identifiable information n carry CCPA obligations through Wisconsin, Iowa, and Illinois. In 2018, (PII) has taken on the character of prop- to the company’s third-party ser- UnityPoint Health’s employee email sys- erty whose ownership and integrity must vice providers. tem was hacked and the hackers obtained be defended against hackers, scammers, access to the PII of 1.4 million patients. monolithic corporations, and other nefar- Illinois Biometric Information Privacy UnityPoint Health system gave each sys- ious elements on the internet. Every state Act (BIPA):14 Effective October 3, 2008, tem user (patients and others) a copy has some form of privacy protection stat- the BIPA allows a private right of action of its privacy policy. The privacy policy ute that covers intrusion, interception, for violations, including facial recognition promised that UnityPoint would store or unlawful use of private data and data scanning without consent, via online personal information “in a secure data- breach obligations. Certain states, like “tags.” base behind an electronic firewall” and California, have developed a data privacy Other state legislatures are actively that system users would receive notice of code covering many aspects of data use studying legislation that will expand data a data breach within 60 days of discovery. by site sponsors. Federal law separately privacy rights. Four individual system users filed a regulates consumer rights, financial data, putative class action in the U.S. District children’s data, student data privacy, and Privacy policy Court in the Western District of Wiscon- protected health information.12 There are three main concerns driving sin in 2018.17 The defendant argued that PII plaintiffs typically combine state protective privacy policy judicial deci- there was no separate consideration for and federal statutory claims with con- sions. All are anchored by lack of consent the privacy policy, that the privacy policy

26 Bench&Bar of Minnesota s November 2020 www.mnbar.org was merely a promise to follow the law, tion requirements that stop the user from Notes and that the privacy policy’s unilateral accessing the website until the authoriza- 1 Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 200 modification provision made it a non- tion is provided. L. Ed. 2d 889 (2018) binding promise. n Obvious and clear visual clues and di- 2 Sgouros v. TransUnion Corp., 817 F.3d 1029, The court allowed the breach of con- rections on the webpage should be used 1035 (7th Cir. 2016). But see, BRADLEY tract claim to proceed, holding that sepa- for both disclosure and use authorization. ACALEY, individually & on behalf of all rate consideration was not required for others similarly situated, Plaintiff, v. VIMEO, the privacy policy because it was incorpo- California requirements INC., Defendant., No. 19 C 7164, 2020 rated in each health services agreement, If the site will be operative to California WL 2836737, at *1 (N.D. Ill. 6/1/2020) that the privacy policy promised more residents, it must satisfy the requirements (the “Continue With Facebook” window than legal compliance, and that the uni- of the California Consumer Privacy Act, adequately disclosed the website terms and lateral modification provision was limited including — conditions). to the privacy policy and did not allow n a DO NOT SELL MY 3 Arena v. Intuit Inc., No. 19-CV-02546-CRB, UnityPoint Health to modify or withdraw INFORMATION button; 2020 WL 1189849 (N.D. Cal. 3/12/2020) from the health services agreement. The n a description of the information (Appeal filed by Andrew Dohrman, et al., v. court also noted that it could infer a data being collected and how it will be Intuit, Inc.et al, 9th Cir., 3/18/2020). breach because UnityPoint Health did used; and 4 Peter v. DoorDash, Inc., 2020 WL 1967568 not follow the procedures described in n a description of the user’s rights (N.D.Cal. 4/23/2020). the privacy policy. under the CCPA. 5 Soliman v. Subway Franchisee Advert. Fund Tr. Federal courts are issuing decisions on Ltd., No. 3:19-CV-00592 (JAM), 2020 WL website contract claims on a daily basis. Policy template: Suggested terms 1061328 (D. Conn. 3/5/2020). Relying on recent precedent that exam- for a website privacy policy 6 Wilson v. Redbox Automated Retail, LLC, No. ines the viability of web-based arbitra- n Information collected on the website 19-CV-01993, 2020 WL 1445622 (N.D. Ill. tion agreements, courts focus on the site (a specific description of the personal in- 3/25/2020) (appeal filed). user’s assent to be contractually bound formation the website sponsor collects; 7 Lundbom v. Schwan’s Home Serv., Inc., No. and then on the site user’s consent to al- this may include personal data, financial 3:18-CV-02187-IM, 2020 WL 2736419 (D. low the site sponsor to collect, store, and data, protected health information, and Or. 5/26/2020) (appeal filed). use the site user’s PII. Despite the focus user site use data). 8 Page v. Alliant Credit Union, No. 1:19- on how the contract is presented to site n How the information is used. CV-5965, 2020 WL 2526488 (N.D. Ill. users, what it says still matters. There is n Who uses the information and for what 5/18/2020). enough state legislation (like the CCPA), purpose. 9 Hutt v. Xpressbet, LLC, No. CV 20-494, federal data privacy law, and federal case n How the information is collected. 2020 WL 2793920, at *1 (E.D. Pa. law to develop guidelines for website pri- n How the information is stored. 5/29/2020). vacy policies. n Special sections for Protected Health 10 Miracle-Pond v. Shutterfly, Inc., No. 19 Information, information collected from CV 04722, 2020 WL 2513099 (N.D. Ill. PRIVACY POLICY GUIDELINES California residents, information collect- 5/15/2020). If the lowly privacy policy is now be- ed about children, information collected 11 Engen v. Grocery Delivery E-Servs. USA coming the engine for contract claims from site users in the European Union. Inc., No. 19-CV-2433 (ECT/TNL), 2020 against website sponsors that collect PII n Contact information including a WL 1816043 (D. Minn. 4/10/2020) (appeal for any reason, certain updates may miti- dedicated toll-free number and email filed). gate that risk. address for a site user to use to contact 12 Cf. Gramm-Leach-Bliley Act, 15 U.S.C. the site sponsor with questions about the 6801, et seq.; Safeguards Rule 16 C.F.R. Design/placement user’s data. part 314; Children’s Internet Protection Act n Links to terms and conditions and an n Policy effective date. (CIPA) 20 U.S.C. 9134; Family Educational effective privacy policy should be in blue n Unilateral material modifications no- Rights and Privacy Act (FERPA) 20 U.S.C. underlined typeface and, preferably, in a tice and consent. s 1232g; Health Insurance Portability and font that is larger or more visible than the Accountability Act (HIPAA) of 1996, font around it. Pub.L. 104–191, 8/21/1996, 110 Stat. 1936. n User acknowledgments should be high- JULIE LEWIS is the principal 13 Cal. Civ. Code 1798.100, et seq. ly conspicuous and visible to a reasonable of Lewis Law Office, LLC in 14 Illinois Biometric Information Privacy Act, site or smartphone user. Webpage clut- Madison, Wisconsin, and 740 ILCS 14. ter—including marketing and other bids Minneapolis, Minnesota. 15 In re Google, Inc. Privacy Policy Litigation, 58 for the user’s attention—should be mini- Lewis Law Office, LLC F. Supp.3d 968 (N.D.Cal. 2014). mized or placed elsewhere on the site. advises public, private, and 16 In re Facebook, Inc. Consumer Privacy not-for-profit organizations User Profile Litigation, 402 F.Supp.3d 767 Site wording/language on ERISA, tax, contract, and (N.D.Cal 2019). n Conspicuous, specific disclosure of the compliance matters and is legal counsel to a 17 Fox v. Iowa Health System, 399 F.Supp.3d information being collected. retirement trust. 780 (W.D.Wis. 2019). n Clear, easy-to-understand authoriza- [email protected]

www.mnbar.org November 2020 s Bench&Bar of Minnesota 27 Notes&Trends

Landmarks in the Law Current developments in judicial law, legislation, and administrative action together with a foretaste of emergent trends in law and the legal profession for the complete Minnesota lawyer.

CRIMINAL LAW court should have stopped questioning J.G. once it was clear J.G. had chosen to JUDICIAL LAW recant. n Evidence: Impeachment evidence The court of appeals concludes that is misused if the party who called a no Dexter violation occurred. The court witness was aware the witness would holds that a Dexter violation occurs 28 recant before the witness took the only if the witness signifies an intent to CRIMINAL LAW stand. Appellant was convicted of aiding recant prior to taking the stand. Here, by Samantha Foertsch and abetting second-degree murder, there is no indication the state was & Stephen Foertsch attempted murder, and assault, charges aware J.G. would recant or called J.G. that arose from a gang-related drive-by for the sole purpose of impeaching him. 30 shooting from a car driven by appellant. The appellate courts have not extended EMPLOYMENT At trial, J.G., appellant’s cell mate, testi- Dexter to include situations in which a * & LABOR LAW fied. J.G. previously told investigators party’s witness does recant at trial but is by Marshall H. Tanick appellant knew the shooting would take still questioned thereafter, and the court place and had given J.G. a letter stating of appeals declines to do so. Thus, the 31 the opposite for J.G. to give to police as district court did not err by allowing the FEDERAL PRACTICE* his own writing. J.G. gave that letter and state to continue questioning J.G. after by Josh Jacobson a second letter, written by J.G. on appel- his recantation. lant’s behalf and consistent with the first The court also finds that J.G.’s prior 32 letter, to the investigator. J.G. also told inconsistent statements to police were IMMIGRATION LAW* investigators he witnessed an argument not given under oath and, therefore, by R. Mark Frey between appellant and the shooter after were not admissible as substantive the shooting, during which appellant evidence. However, Minn. R. Evid. 607 33 yelled at the shooter because he was permits their admission for impeach- INTELLECTUAL PROPERTY supposed to get out of the car before ment purposes only. The court agrees by Joe Dubis shooting. At trial, however, J.G. denied with the postconviction court that J.G.’s making these statements and testified he out-of-court statements were admitted 33 had not met appellant before they shared for impeachment, rather than substan- REAL PROPERTY a jail cell. Over the defense’s objection, tive, purposes. The court also affirms by Julie N. Nagorski the district court permitted the state to the postconviction court’s admission of & Patrick C. Summers continue questioning J.G. to elicit what the first letter J.G. gave to police for the the court characterized as “proper im- jury to use in ascertaining who wrote 34 peachment evidence.” The investigator the letter. The letter was authenticated TAX LAW* to whom J.G. spoke testified about J.G.’s and relevant, and the jury was instructed by Morgan Holcomb statements, and the letters that J.G. gave not to use the contents of the letter as & Sheena Denny to the investigator were also admitted substantive evidence. into evidence. The jury was instructed The court also concludes that the that J.G.’s testimony was impeachment, state misstated the law regarding the * MORE ONLINE not substantive, evidence, and that the presumption of innocence, but that The online version of this content of the letters was to be used to appellant’s substantial rights were not ascertain the author of the first letter. affected. The court then rejects appel- section contains additional Appellant appeals from the denial of his lant’s arguments regarding the improper case note content: postconviction petition, arguing the state admission of other evidence and the www.mnbar.org/bench-bar violated State v. Dexter, 269 N.W.2d 721 exclusion of the testimony of two defense (Minn. 1978), which precludes calling a witnesses, finding the postconviction witness for the sole purpose of impeach- court did not abuse its discretion. The ing the witness. The parties agree the denial of appellant’s postconviction peti- state did not know J.G. would recant tion is affirmed. Moore v. State, A19- his statements to police when called to 1522, 2020 WL 2517081 (Minn. Ct. testify, but appellant argues the district App. 5/18/2020).

28 Bench&Bar of Minnesota s November 2020 www.mnbar.org | CRIMINAL LAW n DWI: Missouri v. McNeely applies The state acknowledged that no of any language concerning mens rea, retroactively to challenges of final con- warrant existed for the requested blood including any language clearly evidencing victions for test refusal under Birchfield or urine tests, but asserted that the per the Legislature’s intent to dispense with v. North Dakota. In 2011, after crashing se exigency exception applied. However, mens rea. Thus, the first exception to the his vehicle into a median, appellant because the court of appeal concludes common law mens rea rule does not apply. was taken to the hospital, where police here that the per se exigency exception As to the second exception, Minnesota’s asked him to submit to a blood or urine does not apply to appellant’s case, the appellate courts “have recognized that test. Appellant refused and ultimately district court erred in concluding that certain crimes arising from regulatory pleaded guilty to third-degree test an exception to the warrant requirement schemes fall within the ‘public welfare’ or refusal. In his 2017 postconviction peti- applied. Thus, appellant’s conviction was ‘regulatory’ category,” such as keeping an tion, appellant argued his conviction was unconstitutional and is reversed. Hager- open bottle of liquor in an automobile, unconstitutional under Birchfield v. North man v. State, No. A19-1526, 2020 WL DWI, serving alcohol to a minor, failing Dakota, 136 S.Ct. 2160 (2016), because 2828783 (Minn. Ct. App. 6/1/2020). to provide proof of vehicle insurance, etc. it was based on his refusal to submit to Section 609.748, subdivision 6, is neither a warrantless blood or urine test in the n Harassment restraining order: Viola- regulatory nor concerned with public absence of an exception to the warrant tion of a harassment restraining order welfare, but is, instead, concerned with requirement. The district court denied requires proof of knowledge of facts physical or sexual assault and repeated appellant’s petition and he appealed, that would cause defendant to be in vio- incidents of intrusive or unwanted acts, but his appeal was stayed pending the lation of order. Appellant was prohibited words, or gestures. Thus, the court holds Minnesota Supreme Court’s decision by a harassment restraining order (HRO) it is not a public welfare offense. in Johnson v. State, 916 N.W.2d 674 from having contact with M.L.B. or from As neither exception to the common (Minn. 2018). In Johnson, the court held being within 100 feet of her residence, law rule that proof of mens rea is required Birchfield announced a substantive rule but her address was not disclosed in the applies, a conviction under 609.748, that applies retroactively to convictions HRO. He was convicted of violating the subd. 6, requires proof that the defendant that were final before the rule was an- HRO after walking within 100 feet of had knowledge of the facts that would nounced. However, the district court was M.L.B.’s apartment building. Before the lead him or her to her to be in viola- left to determine whether a warrant or district court and on appeal, appellant tion of an HRO. In this case, those facts an exception to the warrant requirement argued the state did not prove appellant included M.L.B.’s address. The record existed at the time of the test refusal. knew the location of M.L.B.’s residence. shows the state failed to meet this bur- The district court found that the per se The district court found him guilty but den, and, therefore, the evidence is insuf- exigent circumstances exception (based specifically found credible his explana- ficient to sustain appellant’s conviction. on the dissipation of alcohol) applied tion that he was walking in the area of State v. Andersen, No. A19-0923, 2020 and that, although this exception was M.L.B.’s apartment for the purpose of WL 3041277 (Minn. Ct. App. 6/8/2020). invalidated in Missouri v. McNeely, 569 going to lunch and that the state did not U.S. 141 (2013), McNeely does not apply prove beyond a reasonable doubt that n Procedure: Defense counsel’s retroactively. appellant had notice or knowledge of the concession of some of the elements of The Minnesota Court of Appeals finds location of M.L.B.’s residence. the crimes is not a concession of guilt that, in the test refusal context, McNeely’s Knowledge of the location from which warranting a new trial. Respondent, a rule is substantive and should be applied a defendant is prohibited from being is 26-year-old, was charged with first- and retroactively. “[T]he requirement that law not required by Minn. Stat. §609.748, third-degree criminal sexual conduct for enforcement secure a warrant or establish subd. 6(a), (b). However, the general sexually penetrating a 12-year-old and a an exception to the warrant requirement common law rule is that proof of mens rea 13-year-old. Evidence presented at trial has a critical ‘bearing on the accuracy of is required unless one of two exceptions included DNA evidence, cell phone re- the underlying determination of guilt,’” apply: (1) the statute clearly sets forth a cords showing communications between and the driver cannot be convicted of test strict liability offense, or (2) the statute respondent and the two victims and vid- refusal “[w]ithout constitutional justifica- creates a “public welfare offense.” eos of one of the assaults, and statements tion for the blood or urine test.” Section 609.748, subd. 6, is void from the victims identifying respondent.

www.mnbar.org November 2020 s Bench&Bar of Minnesota 29 Notes&Trends | CRIMINAL LAW | EMPLOYMENT & LABOR LAW

In written arguments to the district court written by Judge James Loken of Minne- following a bench trial, defense counsel sota, dismissed the appeal and remanded conceded the victims’ ages, respondent’s the case because the appeal was brought age, the age differential between the after the two-year noncompete period parties, and venue in Steele County. The and the corresponding injunction had district court found respondent guilty on ended. Perficient, Inc. v. Munley, 973 both counts, making specific findings as F.3d 914 (8th Cir. 9/3/2020). to the parties’ ages, the age differential, and the county of the crimes. The court n Overtime claim barred; employer of appeals reversed on the grounds of exempt as common carrier. A flight ineffective assistance of counsel, finding paramedic lost his claim for unpaid over- that defense counsel’s concessions of ele- time wages when he challenged his comments of the crimes conceded guilt with- pany’s policy prohibiting overtime unless out respondent’s consent or acquiescence. he worked more than 84 hours over a The Minnesota Supreme Court two-week period. The 8th Circuit, in a reversed the court of appeals. Where decision written by Justice David Stras of ineffective assistance of counsel based Minnesota, held that the claim under the on counsel’s concession of guilt without federal Fair Labor Standards Act (FLSA) the client’s consent or acquiescence is was not actionable because the employer claimed, a new trial is warranted without qualified for exemption under the FLSA a showing of prejudice. That is, if such as a “common carrier.” Riegelsberger v. an improper concession was made, coun- Air Evac. EMS, Inc., 970 F.3d 1061 (8th sel’s performance is considered deficient Cir. 8/17/2020). and prejudice is presumed. Here, however, respondent’s counsel n Collateral workers compensation; conceded various elements of the offense, collateral tag barred after failure to not respondent’s guilt. While an analysis intervene. A health care provider that of whether guilt was conceded neces- did not intervene after receiving notice of sarily requires an analysis of whether an employee’s pending workers compen- elements have been conceded, the sation proceeding cannot later attack Court clarifies that an uncontested-to the award on collateral challenge. The concession on any single element does Supreme Court held that the voluntary not necessarily amount to a concession declination to intervene after receiving of guilt. On the other hand, a conces- timely and adequate notice of the right to sion on each and every element of the do so bars a subsequent collateral attack crime is not necessarily required. In this on a compensation award. Koehnen v. case, counsel conceded fewer than all Flagship Marine Co., 947 N.W.2d 448 of the elements of the offenses against (Minn. 8/12/2020). November 19, 2020 respondent, and the elements conceded were undisputed at trial. Counsel never n Retaliation claim rejected, no causal conceded the highly contested question connection found. A former custo- WE NEED YOUR SUPPORT of whether respondent sexually penetrat- dian failed in his attempt to pursue a Please consider a tax-deductible donation ed either victim. Thus, respondent’s trial retaliatory discharge claim against his to the Amicus Society, on behalf of the counsel was not ineffective and a new former school district employer under High School Mock Trial program. trial is not warranted. State v. Huisman, the Minnesota Whistleblower Statute 944 N.W.2d 464 (Minn. 6/10/2020). and the Occupational Safety & Health To learn more, visit: Act. Affirming a lower court ruling, the SAMANTHA FOERTSCH Minnesota Court of Appeals held that www.mnbar.org/mocktrial Bruno Law PLLC the claimant did not establish a prima [email protected] facie case with a causal connection STEPHEN FOERTSCH between reporting air and water quality Bruno Law PLLC concerns and her termination, noting [email protected] that the employee had disobeyed direc- tives from the school’s principal regarding locking the school’s fire doors. Slaughter EMPLOYMENT & LABOR LAW v. Independent School District No. 833, 2020 WL 4579014 (Minn. Ct. App. JUDICIAL LAW 8/10/2020) (unpublished). The Mock Trial Program is an exciting law-related n Covenant not to compete; mootness education program that introduces students to the after injunction expired. A two-year n Missing work while in jail; American legal system through direct participation noncompete clause, which had been sub- misconduct upheld, but not aggravated. in a simulated courtroom trials. The program ject to an injunction, was moot because An employee’s challenge to denial of brings together attorneys, judges, students, and teachers from across the state. the employee challenged the injunction unemployment compensation benefits after it had already expired. The 8th on grounds that he missed work when Circuit Court of Appeals, in a decision he was in jail for two days was upheld on

30 Bench&Bar of Minnesota s November 2020 www.mnbar.org | EMPLOYMENT & LABOR LAW | FEDERAL PRACTICE grounds of disqualifying “misconduct.” against that defendant, found that the The court of appeals upheld that defendant had been fraudulently joined, determination, but also concluded that and denied the plaintiff’s motion to re- the employee was not discharged for mand. Protege Biomedical. LLC v. Duff “aggravated” employment misconduct, & Phelps Secs., LLC, 2020 WL 5798516 which would have resulted in a longer (D. Minn. 9/29/2020). period of further disqualification. Leuze v. Minn. Valley Alfalfa Producers, 2020 n Fed. R. Civ. P. 65(b); temporary WL 4743505 (Minn. Ct. App. restraining order denied. Where the 8/17/2020) (unpublished). plaintiffs sought an ex parte temporary restraining order and preliminary injunc- n Unemployment reconsideration; tion, Judge Tostrud denied the request jurisdiction terminated when deadline for a preliminary injunction on the expired. An employee who challenged merits, and noted that the plaintiffs had denial of unemployment compensa- failed to comply with the requirements James C. Erickson, Sr. tion benefits after an unemployment for the TRO where they did not file the law judge (ULJ) amended some details affidavit or verified complaint required 30+ YEARS OF EXPERTISE of the decision after the deadline for by Fed. R. Civ. P. 65(b)(1)(A), and also reconsideration had expired lost his ap- failed to certify any efforts made to pro- Fire & Property Damage peal. The court of appeals held that the vide notice to the defendants as required Policy Appraisals ULJ’s jurisdiction terminated when the by Fed. R. Civ. P. 65(b)(1)(B). Minnesota Personal Injury/Death reconsideration request deadline expired, RFL Republican Farmer Labor Caucus resulting in invalidation of any of the v. Freeman, ___ F. Supp. 3d ___ (D. Mediations/Arbitrations judge’s rulings after that date and leading Minn. 9/14/2020). Minnesota/Wisconsin to vacation of the post-reconsideration determination. Carroll v. Minn. Apts., n Fed. R. Civ. P. 30(b)(4); motion to Erickson, Bell, Beckman & Quinn LLC, 2020 WL 4280999 (Minn. Ct. compel remote depositions granted. 1700 Highway 36 West, Suite 110 App. 7/27/2020) (unpublished). Applying a “legitimate reason” standard Roseville, MN 55113 rather than a “good cause” standard, 651-223-4999 | [email protected] MARSHALL H. TANICK Magistrate Judge Thorson found that www.ebbqlaw.com Meyer, Njus & Tanick the covid-19 pandemic provided a [email protected] “legitimate reason” for remote depositions and that the plaintiffs had failed to establish any particularized “prejudice or FEDERAL PRACTICE hardship,” and granted the defendant’s TRADEMARK motion to compel the remote depositions Copyright & Patent Searches JUDICIAL LAW of specified witnesses. H & T Fair Hills, “Experienced Washington office n 28 U.S.C. §1447(d); scope of review on Ltd. v. Alliance Pipeline L.P., 2020 WL for attorneys worldwide” appeal; certiorari. While most remand 5512517 (D. Minn. 9/14/2020). orders cannot be appealed, 28 U.S.C. §1447(d) permits appeals from remand n Fed. R. Civ. P. 8; short and plain FEDERAL SERVICES & RESEARCH: Attorney directed projects at all Federal agencies orders involving cases removed under 28 statement; failure to cure deficien- in Washington, DC, including: USDA, TTB, EPA, U.S.C. §§1442 and 1443. At least six cir- cies. Having previously found that the Customs, FDA, INS, |FCC, ICC, SEC, USPTO, cuit courts—including the 8th Circuit— plaintiff’s complaint failed to provide a and many others. Face-to-face meetings with Gov’t have held that such an appeal is limited “short and plain statement” of the claims officials, Freedom of Information Act requests, copyright deposits, document legalization @ State only to consideration of the propriety against each defendant in an action Dept. & Embassies, complete trademark, copyright, of the removal under these provisions, arising out of the alleged improper use patent and TTAB files. while opinions in three circuits have of confidential information, Judge Davis held that appellate review extends to any granted the plaintiff 30 days to amend COMPREHENSIVE: U.S. Federal, State, Common Law and Design searches, issue encompassed by the remand order. its claims with “clarity and brevity.” The INTERNATIONAL SEARCHING The Supreme Court recently granted plaintiff subsequently dropped its claims EXPERTS: Our professionals average certiorari on the question of whether against two defendants, and incorpo- over 25 years experience each FAST: Normal 2-day turnaround 28 U.S.C. §1447(d) permits a court of rated into its amended complaint a chart with 24-hour and 4-hour service available appeals to undertake this broader review. that, it asserted, provided sufficient Mayor and City Council of Baltimore v. notice of the alleged conduct by each BP p.l.c., 952 F.3d 452 (4th Cir.), cert. defendant. However, Judge Davis found granted, ___ S. Ct. ___ (2020). that the chart provided “neither clarity nor brevity,” found that the amended n Fraudulent joinder; motion to remand complaint continued to violate Rule 8, 200 N. Glebe Rd., Suite 321, Arlington, VA 22203 denied. Where the defendants removed and denied the plaintiff’s request that Ph: 703-524-8200, Fax: 703-525-8451 the action based on diversity jurisdiction it be allowed another chance to amend Minutes from USPTO & Washington, DC and alleged fraudulent joinder of the to cure its pleading deficiencies. C.H. TOLL FREE:1-800-642-6564 non-diverse defendant, Chief Judge Tun- Robinson Worldwide, Inc. v. Traffic www.GovernmentLiaison.com heim found that there was “no reason- Tech, Inc., 2020 WL 5569986 (D. Minn. [email protected] able basis” for any of the claims asserted 9/17/2020). www.mnbar.org November 2020 s Bench&Bar of Minnesota 31 Notes&Trends | FEDERAL PRACTICE | IMMIGRATION LAW n Multiple frivolous actions; passage of ‘could be’ tortured does not compel the United States Labor Market During time; injunction not warranted. Overrul- the conclusion that he is more likely the Economic Recovery Following the ing the plaintiff’s objections to a report than not to be tortured.” Lasu v. Barr, 2019 Novel Coronavirus Outbreak”) sus- and recommendation by Magistrate 18-3550, slip op. (8th Cir. 7/31/2020). pending the entry of certain groups until Judge Wright, Judge Brasel dismissed the https://www.ca8.uscourts.gov/sites/ca8/files/ 12/31/2020, with discretion to extend it pro se plaintiff’s “thought control” claims opinions/183550P.pdf further, “as necessary.” Section 2 of the with prejudice, but agreed with Magis- proclamation relates to certain nonimmi- trate Judge Wright that an injunction n No CAT relief for HIV-positive member grant worker visa holders subject to the against future litigation and sanctions of the Begedi Clan in Somalia. The 8th suspension: (1) L visas: intra-company was not warranted when more than two Circuit Court of Appeals upheld the transfers to non-citizens already em- decades had elapsed since the filing of Board of Immigration Appeals’ (BIA) ployed by American businesses; (2) H-1B the plaintiff’s last frivolous lawsuits. denial of the petitioner’s application for visas: highly skilled workers coming to Sykes v. Klemp, 2020 WL 5768919 (D. deferral of removal under the Conven- America temporarily to perform services Minn. 9/28/2020). tion Against Torture (CAT), when it in a specialty occupation for which they found the immigration judge committed are uniquely qualified; (3) H-2B visas: n Motion to dismiss; impact of amended error with a prediction that the peti- seasonal laborers responding to proven complaint. Where defendants filed a tioner (a member of the minority clan domestic labor shortages; and, (4) J visas: motion to dismiss and the plaintiffs Begedi) would more likely than not be cultural exchange visitors in a variety of amended their complaint while the tortured if returned to Somalia. More work-study programs nationwide. motion was pending, Judge Brasel held precisely, the immigration judge mis- On 7/22/202, the plaintiffs filed their that the defendants were not required takenly relied upon testimony lacking complaint seeking to invalidate the proc- to file a new motion, and that she could adequate foundation, country reports lamation based on the grounds that 1) consider the motion as being addressed addressing human rights violations at it exceeds the authority of the executive to the amended complaint. Halla v. too high a level of generality, and cited branch (or constitutes ultra vires con- LikeZebra, LLC, 2020 WL 5517492 (D. treatment of people with HIV in Somalia duct) and 2) for violation of the Admin- Minn. 9/14/2020). that either fell short or was insufficiently istrative Procedures Act (APA). widespread to show the petitioner would On 7/31/2020, the plaintiffs filed a n Request for reconsideration denied; likely suffer torture. Abdi Omar v. Barr, motion for a preliminary injunction. failure to comply with L.R. 7.1(j). Where 18-3351, slip op. (8th Cir. 6/26/2020). On 10/1/2020, focusing on the first the defendant sought reconsideration of https://www.ca8.uscourts.gov/sites/ca8/files/ ground, the U.S. District Court (N.D. Judge Wright’s claim construction ruling opinions/183351P.pdf Cal.) issued a preliminary injunction but failed to file a letter requesting per- finding the plaintiffs had standing; were mission to file a motion for reconsidera- n Obstruction of legal process is not likely to prevail on the merits; and had tion in accordance with L.R. 7.1(j), Judge categorically a crime involving moral proven irreparable harm should the Wright found that the motion was “not turpitude (CIMT). The 8th Circuit Court injunction not be granted. Accordingly, properly before the Court” and denied of Appeals held that the Board of Immi- the court issued a preliminary injunction, the request on that basis. Niazi Licensing gration Appeals (BIA) committed error observing that “the Court finds that the Corp. v. St. Jude Med. S.C., Inc., 2020 when it found the petitioner’s Minne- public interest is served by cessation of WL 5512507 (D. Minn. 9/14/2020). sota conviction for obstruction of legal a radical change in policy that nega- process under Minn. Stat. Ann. §609.50, tively affects Plaintiffs whose members JOSH JACOBSON subdiv. 2(2) to be categorically a crime comprise hundreds of thousands of Law Office of Josh Jacobson involving moral turpitude (CIMT). Most American businesses of all sizes and [email protected] importantly, it concluded there was a economic sectors. The benefits of sup- “realistic probability that Minnesota porting American business and predict- would apply its obstruction of legal pro- ability in their governance will inure to IMMIGRATION LAW cess statute to cases lacking the requisite the public.” The plaintiffs affected by the degree of scienter necessary to constitute preliminary injunction include: Intrax, JUDICIAL LAW a crime of moral turpitude,” and “the Inc. (a leading operator of culture ex- n No likelihood of torture based on level of harm required to complete the change programs in the United States), ethnic minority group membership. offense was insufficient to constitute National Association of Manufacturers, The 8th Circuit Court of Appeals held a crime of moral turpitude.” Accord- U.S. Chamber of Commerce, National that the Board of Immigration Appeals ingly, it granted the petition for review Retail Federation, and TechNet. 85 Fed. (BIA) correctly found the petitioner—a and vacated the BIA’s order of removal. Reg. 38,263-267 (6/25/2020) (Procla- derivative member (through his parents) Ortiz v. Barr, 19-1285, slip op. (8th Cir. mation). https://www.govinfo.gov/content/ of the Sudanese minority tribes Yambara 6/23/2020). https://ecf.ca8.uscourts.gov/ pkg/FR-2020-06-25/pdf/2020-13888.pdf ; and Pojulu—must show more than a opndir/20/06/191285P.pdf 85 Fed. Reg. 40,085-086 (Proclamation mere pattern of general ethnic violence Amendment) (7/2/2020) https://www. in South Sudan to meet the requirement n District court issues preliminary govinfo.gov/content/pkg/FR-2020-07-02/ under the Convention Against Torture injunction halting president’s procla- pdf/2020-14510.pdf ; National Associa- (CAT) that he would more likely than mation that sought to suspend entry of tion of Manufacturers, et al., v. U.S. not be tortured either by or with the certain nonimmigrants. On 6/22/2020 Department of Homeland Security, et consent of South Sudanese officials and 6/29/2020, the president issued Proc- al., No. 20-cv-04887-JSW (N.D. Cal. if he were returned to the country. lamation 10052 (and an amendment) 10/1/2020). https://www.courthousenews. “The fact that Lasu is a member of (“Suspension of Entry of Immigrants and com/wp-content/uploads/2020/10/Natl- one of sixty ethnic minority tribes that Nonimmigrants Who Present a Risk to Manufacturers-v.-Homeland-Security.pdf

32 Bench&Bar of Minnesota s November 2020 www.mnbar.org | IMMIGRATION LAW | INTELLECTUAL PROPERTY | REAL PROPERTY

ADMINISTRATION ACTION subject matter of the proffered testimony. court found Corning’s charge that test Dr. Burke was offered as an expert in data did not support the patent claims n DOL issues interim final rule on electrophysiology to opine on the medi- (i.e. not that the data was incorrect prevailing wages. The Department of cal procedure for implanting permanent or falsified) failed to sufficiently plead Labor (DOL) issued an interim final pacing leads into the coronary sinus. His the knowledge requirement. Corning’s rule (“Strengthening Wage Protec- qualifications related to these matters charge that the patentee failed to disclose tions for the Temporary and Permanent were not disputed. NLC did not offer Dr. adverse data was dismissed because Employment of Certain Aliens in the Burke as an expert on patent law. The allegations related to “other data” lacked United States”), with comments due by court identified no case law suggesting the particularity to state a claim for 11/9/2020, amending regulations having that a technical expert must be capable inequitable conduct. Corning’s charge to do with the computation of prevailing of reciting the difference between direct that patentee failed to disclose the wages for permanent labor certifications and indirect infringement or that such Corning-Wilson interference proceeding and labor condition applications (LCAs). an inability is an appropriate basis for was dismissed because Corning only 85 Fed. Reg. 63,872-915 (10/8/2020). exclusion. The court denied St. Jude’s identified several documents it believed https://www.govinfo.gov/content/pkg/FR- motion to exclude. Niazi Licensing should have been disclosed but did not 2020-10-08/pdf/2020-22132.pdf Corp. v. St. Jude Med. S.C., No. 17- further plead where in those references cv-5096 (WMW/BRT), 2020 U.S. Dist. the material information was found. n DHS issues interim final rule on “spe- LEXIS 167562 (D. Minn. 9/14/2020). The court, however, denied the motion cialty occupation” and more. The De- to dismiss with respect to the charge partment of Homeland Security (DHS) n Patent law: Pleading standard for that patentee submitted a biased issued an interim final rule (“Strength- inequitable conduct. Judge Frank expert declaration. Corning’s charge ening the H-1B Nonimmigrant Visa recently granted in part and denied sufficiently pleaded facts that patentee Classification Program”), with comments in part defendants’ motion to dismiss filed an expert declaration that failed to due by 11/9/2020, revising the definition claims of inequitable conduct. Plaintiff disclose the expert’s relationship to the of “specialty occupation” (with other Corning Inc. sued defendants Wilson company, facts that the examiner relied changes addressing third party work- Wolf Manufacturing Corp. and John R. on the declaration, the claims and claim sites and employer-employee relation- Wilson seeking declaratory judgments limitations that the biased declaration ships, among others) in the regulations of patent non-infringement, invalidity, were relevant to, and facts sufficient to devoted to H-1B worker visas. 85 Fed. and unenforceability of Wilson Wolf’s infer intent. Corning Inc. v. Wilson Wolf Reg. 63,918-65 (10/8/2020). https:// patents. Corning alleged four grounds of Mfg. Corp., No. 20-700 (DWF/TNL), www.govinfo.gov/content/pkg/FR-2020-10- inequitable conduct. Pleading inequitable 2020 U.S. Dist. LEXIS 185103 (D. Minn. 08/pdf/2020-22347.pdf conduct in patent cases, subject to 10/6/2020). Rule 9(b), requires identification of R. MARK FREY the specific elements (who, what, JOE DUBIS Frey Law Office when, where, and how) of the material Merchant & Gould [email protected] misrepresentation or omission committed [email protected] before the Patent Office. The pleading must also allege facts sufficient to give INTELLECTUAL PROPERTY rise to a reasonable inference of scienter, REAL PROPERTY including both (1) knowledge of the JUDICIAL LAW withheld material information or of the JUDICIAL LAW n Patent law: Expert not excluded for falsity of the material misrepresentation, n Cartway damages award order. A lack of patent law knowledge. Judge and (2) specific intent to deceive the district court order awarding damages Wright recently denied a motion to Patent Office. The court dismissed for landowners affected by a township’s exclude a technical expert on the basis without prejudice three of Corning’s grant of a petition for a cartway con- that the expert lacked knowledge related four inequitable conduct charges. The stitutes a civil judgment that may be to patent law principles. Plaintiff Niazi Licensing Corporation (NLC) sued St. Jude Medical S.C., Inc. for patent infringement related to NLC’s patent directed to a catheter system that can be inserted into the coronary sinus of the heart. The parties filed cross motions ERISA DISABILITY CLAIMS to exclude expert testimony. St. Jude moved to exclude Dr. Martin Burke on ERISA LITIGATION IS A LABYRINTHINE MAZE OF the basis that Dr. Burke did not under- REGULATIONS AND TIMELINES. LET OUR EXPERIENCE HELP. stand the difference between direct and indirect infringement. Under Rule 702, a witness who lacks the relevant technical expertise for the proffered testimony does not meet the standard of admis- sibility. Conversely, however, a challenge ROB LEIGHTON DENISE TATARYN to the infringement expert’s expertise 952-405-7177 952-405-7178 in patent law does not undermine the expert’s qualifications related to the www.mnbar.org November 2020 s Bench&Bar of Minnesota 33 Notes&Trends | REAL PROPERTY | TAX LAW renewed pursuant to the renewal process the driveway easement and the road the commissioner’s motion to dismiss. set forth in Minnesota Statutes section agreement prohibited the plaintiffs’ use Cano v. Comm’r of Revenue, 2020 WL 541.04. At issue in this decision were and therefore did not decide whether the 5509737 (Minn. TC 9/9/20). efforts by defendants in this action to use constituted an unreasonable interfer- earlier obtain access to their property ence. The court of appeals reversed and n Property tax: court denies petitioner’s located at the tip of a peninsula. In 2003, also decided that the defendants failed motion to amend petition. On 5/11/2020, they petitioned South Harbor Township to supply evidence that the use was an petitioner Mark R. Smith filed a prop- for a cartway. The township granted the unreasonable interference and therefore erty tax petition in Washington County petition in 2006 and awarded general remanded for the entry of judgment in challenging the county assessor’s esti- damages to the affected landowners. The favor of the plaintiffs. Dunkley v. Hueler, mated market value for 8 parcels of real affected landowners appealed to the dis- No. A19-2047, 2020 WL 5507847 property located in Forest Lake. “Box 6 trict court and obtained a 2008 district (Minn. App. 9/14/2020). of Smith’s Minnesota Tax Court Form 7 court order affirming a township’s deci- petition reads: ‘Assessment Date: Janu- sion to grant the petition but ordering JULIE N. NAGORSKI ary 2, 2020, for taxes payable 2021.’ The specific damages to affected landowners. DeWitt LLP underlined terms appear as blanks on The order was not reduced to a judg- [email protected] the form, and Smith hand-wrote ‘2020’ ment. The petitioning landowners never PATRICK C. SUMMERS and ‘2021’ in the two blanks, respective- opened the cartway and therefore did DeWitt LLP ly.” The acknowledgement and waiver not pay the special damages. In 2018, the [email protected] of service of tax petition that Mr. Smith affected landowners instituted an action obtained from the county identified the to renew the order awarding the special tax payable year as 2021, which was also damages. The parties cross-moved for TAX LAW handwritten by Mr. Smith. summary judgment and the district court Box 5 of the Form 7 petition provides: granted it in favor of the defendants, JUDICIAL LAW “’You must ATTACH to this peti- deciding that the 2008 order was not a n Motion to dismiss granted for lack of tion… ONE OF THE FOLLOWING: renewable judgment and that litigation subject matter jurisdiction. Mr. Cano (a) the contested notice of valuation, between the 2008 order and the 2018 filed a notice of appeal challenging the (b) property tax statement, or (c) legal litigation barred the 2018 lawsuit. The Commissioner of Revenue’s 1/28/2020 no- description of the property (including court of appeals reversed, holding that tice of determination on appeal. Mr. Cano the Property I.D. Number).” Seven of because the 2008 order established that did not serve a copy of his appeal on the eight parcels that Mr. Smith identified in the defendants could open the cartway commissioner. The commissioner moved his petition had attached a tax statement as soon as they pay the special damages for dismissal for lack of subject matter pertaining to 2019 assessment values, awarded, it was a “final determination jurisdiction. Mr. Cano orally opposed the instead of the 2020 assessments dates of the rights of the parties in an action motion during a telephone hearing. identified in Box 6. or proceeding” as Rule 54.01 defines a A taxpayer wishing to appeal an order On 6/12/2020, Mr. Smith filed a mo- judgment, and therefore was subject to of the commissioner must follow statuto- tion for leave to amend his petition as renewal under section 541.04 of Minne- ry filing and service requirements. Within follows: “On the real property tax peti- sota Statutes. Ratfield v. South Harbor 60 days after the notice date of an order tion line 6. Change the assessment date: Twp., No. A20-0135, 2020 WL 5507875 of the commissioner, the appellant shall January 2, 2020 for taxes payable in the Minn. App. 9/14/2020). serve a notice of appeal upon the com- year 2021 to: assessment date: January 2, missioner and file the original, with proof 2019 for taxes payable in the year 2020. n Easement grantor rights. The terms of such service, with the tax court. See In addition the acknowledgement and of the grant of a non-exclusive easement Minn. Stat. §271.06, subd. 2 (2018). waiver of service of tax petition the tax define the rights of the easement holder, When an extension is granted, an appel- payable year: should read 2020.” not the rights of the easement grantor, lant must within 90 days serve the notice Mr. Smith explained that he intended whose rights depend on its ownership of appeal on the commissioner and file to file challenges pertaining to the 2019 of the burdened parcel and the com- the original notice, with proof the com- assessment date. The county filed a mon law prohibition on unreasonable missioner received a copy, and the filing memo asking the court to decline Mr. interference with the easement holder’s fee with the court. See Naji v. Comm’r of Smith’s request for leave to amend, stat- use of the easement. Furthermore, the Revenue, No. 8955-R, 2017 WL 811940, ing that Mr. Smith 1) failed to meet the party alleging a violation of the easement at *1 (Minn. T.C. 1/20/2017). statutory requirement to clearly identify agreement sufficient to obtain an order Timely service requirements are the assessment date when the May preventing the use must submit evidence prescribed by legislation. When the 2020 petition reflected an appeal of real to show not only an interference, but process and timeline are not followed, estate taxes for assessment year 2020/pay that the interference is unreasonable. In the court cannot acquire jurisdic- year 2021, and 2) Mr. Smith untimely this decision, the plaintiffs commenced tion. See Auto Motion Sales, L.L.C., 2015 requested to amend the petition to an action to quiet title and obtain a WL 2018321, at *1. After receiving an reflect the appeal period of assessment declaration that a driveway easement extension, Mr. Cano had until 4/27/2020 year 2019/pay year 2020, for which the and a road agreement between tenants- to correctly file his appeal. Although Mr. deadline was 5/30/2020. in-common owners of a vacated road did Cano timely filed his appeal with the tax Minnesota Statutes section not prevent them from using the road court on 3/27/2020, he never served the 278.02 states that a Chapter 278 and modifying and using a driveway. The commissioner. Because Mr. Cano did property tax petition need not be in any parties made cross-motions for summary not serve a copy of his notice of appeal particular form, but shall clearly identify judgment. The district court held that on the commissioner, the court lacked the property and the assessment date, subject matter jurisdiction and granted and clearly assert the claim, defense, or

34 Bench&Bar of Minnesota s November 2020 www.mnbar.org | TAX LAW objection. Additionally, no petition shall issue as required. The court granted in of the penalties at issue. No deductions, include more than one assessment date. part and denied in part the motion. large or small, for hair care. “Grooming A tax court rule requires a property tax Taxpayers who underpay can be expenses (e.g., hair and nail mainte- petition to specify the assessment date subject to various statutory penalties. For nance) are inherently personal expenses, at issue. See Minn. R. 8610.0050, subp. example, if a taxpayer underpays due to and amounts expended for grooming 2 (2019). On its website, the tax court their “[n]egligence or disregard of rules are not deductible regardless of whether makes available to taxpayers the Min- or regulations” or “[a]ny substantial an employer requires an employee to be nesota Tax Court Form 7, Real Property understatement of income tax,” or both, well groomed.” Armstrong v. Comm’r, No. Tax Petition. To assist taxpayers in sat- that taxpayer faces an accuracy-related 23698-18S, 2020 WL 5569699 (T.C.S. isfying statutory pleading requirements, penalty equal to 20% of the portion of an 9/17/2020) (denying, among other Box 5 of Form 7 requires taxpayers to underpayment. See IRC Sec. 6662(a); claimed unreimbursed business expenses, describe the subject property by attach- (b)(1); (2). Similarly, if a taxpayer en- petitioner’s $1,775 deduction for grooming to the petition “(a) the contested gages in a transaction lacking economic ing expenses). Patel v. Comm’r, T.C.M. notice of valuation, (b) property tax substance, that taxpayer faces a penalty (RIA) 2020-133 (T.C. 2020). statement, or (c) legal description of the equal to 20% of the portion of an under- property (including the Property I.D. payment attributable to the transaction. n Numerous whistleblower decisions. Number),” and Box 6 requires specifying IRC Sec. 6662(a) and (b)(6). An even The tax court issued multiple deci- the assessment date. stiffer 40% penalty applies to taxpayers sions relating to whistleblower claims. Minnesota Rule of Civil Procedure whose underpayment is attributable to The majority of the reported decisions 15.01 states in relevant part “a party may one or more “nondisclosed noneconomic this month resulted in no relief for the amend a pleading once as a matter of substance transactions.” Sec. 6662(i). whistleblowers. E.g., Stevenson v. Comm’r, course at any time before a responsive Before such penalties may be assessed, T.C.M. (RIA) 2020-137 (T.C. 2020) pleading is served… otherwise a party however, the Service must satisfy certain (granting summary judgment to IRS be- may amend a pleading only by leave internal processes, including review by cause the IRS Whistleblower Office did of court or by written consent of the a supervisor. Importantly, that review not abuse its discretion in rejecting peti- adverse party; and leave shall be freely must culminate in written supervisory tioner’s claim on the ground that he did given when justice so requires.” See approval. IRC Sec. 6751(b)(1) (proving not provide information regarding any Minn. R. Civ. P. 15.01. The Minnesota no penalties may be assessed unless the federal tax violation); Neal v. Comm’r, Supreme Court has emphasized that a initial determination of such assessment T.C.M. (RIA) 2020-138 (T.C. 2020) “motion to amend… should be freely is personally approved in writing by the (rejecting whistleblower’s challenge to granted, except where to do so would immediate supervisor of the individual the sufficiency of the administrative result in prejudice to the other par- making such determination or such record and holding that on the basis of ty.” See Marlow Timberland, 800 N.W.2d higher level official as the secretary may the administrative record as certified at 640 (quoting Fabio v. Bellomo, 504 designate). Recent tax court case law by the IRS, the WBO did not abuse its N.W.2d 758, 761 (Minn. 1993)). requires that the section 6751(b)(1) ap- discretion when it denied petitioner’s The tax court stated in its analysis proval must be completed before the first claim of a whistleblower award); Damiani that Mr. Smith’s Form 7 petition unam- formal communication to the taxpayer v. Comm’r, T.C.M. (RIA) 2020-132 (T.C. biguously identifies the assessment date that demonstrates that an initial deter- 2020) (holding that, “[o]n the basis of as 1/2/2020, but Mr. Smith now requests mination has been made (e.g., Belair this record, we have no difficulty con- leave to amend his petition to instead Woods, LLC v. Comm’r, 154 T.C. ––––, cluding that the Office did not abuse its identify the assessment date as 1/2/2019. ––––(slip op. at 24-25), 2020 WL 58313 discretion in rejecting petitioner’s claims The court concluded that allowing Mr. (Jan. 6, 2020); Clay v. Comm’r, 152 T.C. for failure to allege any Federal tax Smith to amend his petition would be 223, 249 (2019)). issue” and therefore granting summary equivalent to letting him file a brand In this case, the Service was able to judgment the commissioner); Friedel v. new Chapter 278 claim with respect to demonstrate compliance with the ap- Comm’r, T.C.M. (RIA) 2020-131 (T.C. the 2019 assessment date. Because Mr. proval requirement for some, but not all, 2020) (granting summary judgment after Smith did not request leave to amend his petition until 6/12/2020, after the Legis- lature’s extended deadline of 5/30/2020 due to the pandemic, the court denied Mr. Smith’s motion for leave to amend his property tax petition. Smith v. Wash- ington Co., 2020 WL 5887224 (Minn. TC 9/30/2020). n Written approval by supervisor required before penalty assessment. Taxpayers Dr. Sunil S. Patel and Laurie McAnally Patel had deficiencies totaling $1,700,000 and penalties of just under $400,000 were assessed. In cross-motions for summary judgment, the court addressed the Patels’ argument that the Service did not secure timely written supervisory approval for the penalties at www.mnbar.org November 2020 s Bench&Bar of Minnesota 35 Notes&Trends | TAX LAW You be having “no difficulty concluding that 2012 and 2013, claiming Waterfront’s re- the Judge! the Office did not abuse its discretion in ported operating losses as offsets against rejecting petitioner’s claims”). his individual taxable income. By notice In two cases, however, the Service’s of deficiency respondent disallowed motion for summary relief was rejected these claimed pass-through losses. in whole or in part: Doyle and Moynihan In granting the commissioner’s mo- v. Comm’r, T.C.M. (RIA) 2020-139 (T.C. tion for summary judgment, the tax 2020) (rejecting the Whistleblower Of- court considered the intersection of S fice’s determination that its own criminal Corp shareholder requisites and Ken- investigation did not “proceed[ ] with tucky’s nonprofit corporations law. The any… action” for purposes of I.R.C. sec. court concluded that the “petitioner, as 7623(b)(1) was not supported by the ad- an officer and director of Waterfront, ministrative record and thus constituted subject to the constraints of the Act and an abuse of discretion and therefore deny- Waterfront’s articles of incorporation, ing commissioner’s motion for summary lacked ownership rights in Waterfront judgment); Worthington v. Comm’r, T.C.M. equivalent to those of a shareholder (RIA) 2020-141 (T.C. 2020) (denying for purposes of applying subchapter S.” whistleblower’s motion for summary Noting that “[t]axpayers are generally judgment in which he asked the court to bound by the form of the transaction VOLUNTEERS “order strict compliance with the intent they choose,” the court similarly rejected of congress and the IRS manual, to ‘re- the petitioner’s substance-over-form NEEDED! quire the whistleblower office to analyze argument. The petitioner argued the whistleblower claims’ and analyze them court should regard Waterfront as, in The 2021 competitions will under the proper IRS codes supported by substance, a for-profit entity because be held virtually and we are form 211” but also rejecting the commis- petitioner “intended Waterfront to be a seeking volunteers to judge sioner’s motion for summary judgment for-profit entity and ‘objectively oper- because the WBO’s final determination ated’ it ‘consistently with it being a for- the regional competitions letter was equivocal as to whether it con- profit entity that he owned entirely.’” Fi- beginning in January 2021. stituted a threshold “rejection” based on nally, the court held that Waterfront’s Each of the mock trials last the face of the whistleblower’s claim or failure to seek federal tax-exempt status two to three hours and a substantive “denial” making a decision had no bearing on its nonprofit status attorney volunteers are not to audit after performing research under state law. Deckard v. Comm’r, outside the claim). No. 11859-17, 2020 WL 5569696 (T.C. assigned in pairs to judge. 9/17/2020). Volunteers are also needed n Kentucky nonprofit corporation not to coach teams. entitled to elect S Corp status. In 2012 ADMINISTRATIVE ACTION Waterfront Fashion Week, Inc. was orga- n IRS guidance. In response to a federal nized under Kentucky law as a nonstock, district court opinion, the IRS has updat- nonprofit corporation. The organiza- ed its guidance on the Economic Impact VIRTUAL tion was established for the purpose of Payment Eligibility. In Scholl v. Mnuchin, holding the Fashion Week event and the court held that the IRS cannot JUDGES TRAINING distributing proceeds from the event to deny an Economic Impact Payment to Friday, December 11 qualified recipients, including Waterfront someone who is incarcerated if that indi- Park. Unfortunately, Waterfront was vidual otherwise satisfies the criteria for 3:00– 4:30 pm not able to find sufficient sponsors or receiving a payment. The court enjoined 1.5 CLE credits applied for contributors to break even, and eventu- the Treasury from “withholding ben- ally the president (the petitioner in this efits pursuant to 26 U.S.C. §6428 from case) decided to assume “complete con- plaintiffs or any class member on the sole trol” over planning Waterfront Fashion basis of their incarcerated status.” Scholl Week, abandoned plans for Waterfront v. Mnuchin, No. 20-CV-05309-PJH, 2020 to obtain federal tax-exempt status, and WL 5702129 (N.D. Cal. 9/24/2020). The To sign up or for more began treating Waterfront as a “for-profit Service has requested a stay of the dis- information contact: business that [he] owned entirely.” He trict court’s preliminary injunction, and Kim Basting at contributed over $275,000 to Waterfront while the request for the stay is pending, representing over 85% of the total cost the case is moving forward at the district [email protected] of Waterfront Fashion Week. court. or (612) 278-6306 In 2014, in his capacity as Water- front’s president, petitioner filed an MORGAN HOLCOMB election for Waterfront to be treated as Mitchell Hamline School of Law Learn more at: an S corporation, effective retroactively [email protected] mnbar.org/mocktrial to the date of its incorporation in 2012. SHEENA DENNY Petitioner later filed untimely individual Mitchell Hamline School of Law income tax returns for his taxable years [email protected]

36 Bench&Bar of Minnesota s November 2020 www.mnbar.org People&Practice | MEMBER ANNOUNCEMENTS

Ceiba Fôrte Law Firm Retired Minnesota received the Clio 2020 Supreme Court Justice Reisman Award for David Lillehaug rejoined Excellence in Client Fredrikson & Byron in a Service. The firm is part-time, senior role that owned by attorney Inti will focus on corporate artínez lemán MARTÍNEZ-ALEMÁN M -A , who LILLEHAUG and government inves- ALLYN UTLEY YELLOWHAMMER focuses his practice on tigations and complex helping Spanish-speaking clientele with litigation. He will also serve from time Gov. Walz announced the appointments civil, business, and employment matters. to time as “a special master” to judges of Julie Allyn, Maximillia Utley, and overseeing litigation and as an occasional Terri Yellowhammer as district court David P. Swenson joined arbitrator and mediator. judges in Minnesota’s 4th Judicial Dis- Patterson Thuente IP trict. All three seats will be chambered in and was named litigation Tami Diehm has been Minneapolis. Allyn serves as an assistant practice chair. Swenson selected as the new firm U.S. attorney at the U.S. Attorney’s has more than 25 years president of Winthrop Office for the District of Minnesota. of experience handling & Weinstine, effective Her appointment will fill a vacancy that SWENSON IP matters involving January 1, 2021. Diehm occurred upon the retirement of Judge patents, trademarks, will be the first woman Ronald L. Abrams. Utley is a senior copyrights, and trade secrets, as well as to hold the position in assistant Hennepin County attorney. DIEHM contract, product liability, employment, Winthrop’s history. Her Her appointment will fill a vacancy and other high-stakes civil disputes. practice includes representing clients in that occurred upon the appointment of complex real estate transactions. Judge Theodora Gaïtas to the Minnesota Soobin Kim joined Court of Appeals. Yellowhammer is the Fredrikson & Byron as Sarah Peterson joined Collins, Buckley, American Indian Community Relations an officer in the mergers Sauntry & Haugh, PLLP as an associ- Development Manager for Hennepin & acquisitions, private ate. Peterson graduated from the Uni- County. Her appointment will fill a va- equity, and international versity of St. Thomas School of Law and cancy that occurred upon the retirement groups. will practice in the area of family law. of Judge Fred Karasov. KIM

Alexander MacDonald “Sandy” Keith, aged 91, died on William Neil Bernard died on August 1, 2020. After serv- October 3, 2020. In 1959 he was elected to the Minnesota ing in the Navy he attended the University of Minnesota, Senate representing Olmsted County. He was lieutenant graduating with a degree in aerospace engineering in 1954. governor of Minnesota from 1963 to 1967. After losing an He graduated from law school in 1964 and moved his family election for governor in 1966, he returned to Rochester to to Willmar, MN. practice family law at the firm Dunlap and Seeger, which he had earlier helped found. He was appointed to the Min- Bruce Winthrop Blackburn died on August 14 at age 87. nesota Supreme Court in 1989 as an associate justice and He attended the University of Minnesota Law School and from 1990 to 1998 served as chief justice of the Minnesota graduated in 1959. Bruce’s first job out of law school was Supreme Court. in the trust department at Northwestern National Bank in Minneapolis. From there he entered general practice with a Lois Beverly Wattman died on September 28, 2020. She small law firm called Nielsen, Stock & Blackburn. In 1986, graduated from William Mitchell Law School in 1980. She following a series of mergers and acquisitions, he became spent her entire professional life specializing in health care a senior partner at Oppenheimer Wolff & Donnelly. He policies, retiring just a few years ago. She worked for the retired from Oppenheimer, with many successes and great Minnesota Medical Association, Blue Cross Blue Shield of working relationships, at age 80. Minnesota, the Allina Health System, and served as the president and principal of Lilydale Partners. Larry Rapoport died September 11, 2020. After law school Larry joined the Office of the Hennepin County Attorney, Sidney Kaplan died on September 29, 2020. Sid built a prosecuting difficult cases and rising to be the position of prominent law practice in his 50-plus-year career. Sid was chief deputy for the late Justice George Scott. Upon leaving an important mentor to many, but he felt especially lucky the county attorney’s office, Larry not only entered pri- to have finished the last 18 years of his practice with his law vate practice, but continued his public service by working partner Shane Swanson. tirelessly as a part-time public defender. Larry’s expertise in the courtroom, his timeless knowledge of every judge and Matthew Sean Williams died of COVID-19 at age 40. nearly all members in the criminal defense bar, made him a Williams graduated from what was then Hamline University formidable adversary, an excellent trial lawyer, a good friend, School of Law in 2014 and worked for Consilio, a global and a premier criminal defense lawyer over his astounding firm that does legal document review. 55-year career.

www.mnbar.org November 2020 s Bench&Bar of Minnesota 37 People&Practice

Gov. Walz announced the appointment of Sherry Haley as a district court MRG welcomes new attorney: judge in Minnesota’s 5th Judicial District. She is the Jackson

County attorney. Haley’s HALEY appointment will fill the Theresa R. Stadheim vacancy created by the appointment of Hon. Gordon Moore to the Minnesota Supreme Court. This seat will be chambered in Nobles County. Matthew W. Adams • Laura N. Arneson • William B. Ashley Matthew R. Bonner • Keith M. Campbell • Rebecca F. Davis Bassford Remele an- Matthew C. Goeden • Christopher D. Gram • Mark A. Hollingsworth nounced that Mark R. Whitmore has been James M. Holm • Nancy A. Johnson • Lotta K. Kiuru-Ribar elected as the firm’s chief Ann M. Mueting • Anna M. Nelson • Erin Nichols Matkaiti executive officer andJ es- Rakhi D. Nikhanj • Jay R. Pralle • David L. Provence sica L. Klander has been Kevin W. Raasch • Theresa R. Stadheim • Brian C. Whipps elected to its board of directors. Whitmore is a trial HALEY lawyer who represents and counsels health systems and other businesses professionals. Klander defends businesses and professionals against liability and malpractice claims. HALEY

Caitlin Schweiger was SOCIAL SECURITY DISABILITY awarded a Benjamin B. INITIAL APPLICATION THROUGH HEARING Ferencz Fellowship in Human Rights and Law from World Without Genocide, a human rights

organization at Mitchell SCHWEIGER Hamline School of Law. Schweiger graduated from Mitchell Hamline in May 2019. She currently 612-825-7777 works as a law clerk for Judge Christian www.livgard.com Sande at the Hennepin County Civil Court and serves on the MSBA Human Paul Stephanie Successfully pursuing benefits since 1993 Livgard Christel Rights Committee.

Karen L. Grandstrand was named by Concordia College as one of its 2020 DIGITAL EVIDENCE PROFESSIONALS Alumni Achievement Award (AAA) honor- • Preservation, Analysis & Presentation • CLE & Cybersecurity Training ees, the college’s highest of Electronic Evidence • Former State/Federal Law Enforcement honor. Grandstrand is a GRANDSTRAND • Expert Witness Testimony (FBI, IRS, US Secret Service) shareholder at Fredrikson Jurors Will Understand • Certifications to Include; CCEP, & Byron and chairs the firm’s bank & • Incident Response & Network Intrusion GIAC Forensic Examiners, ISO27001, finance group. • Full Investigative Support Available PCIP, SCERS

Pence Building 800 Hennepin Avenue, 5th Floor We gladly accept press releases and Minneapolis, MN 55403 announcements regarding current members (952) 924-9920 of the MSBA for publication, without charge. www.compforensics.com [email protected] Email: [email protected]

38 Bench&Bar of Minnesota s November 2020 www.mnbar.org OpportunityMarket | CLASSIFIED ADS

comprehensive benefits package and com- practices in addition to an excellent ben- ATTORNEY WANTED petitive compensation based on results. efits package and a collegial working envi- Send resumes to: [email protected]. ronment. For consideration, please submit ATTORNEY WANTED Wendland Utz, an sssss your resume and law school transcript to: established law firm in Rochester, MN, [email protected]. seeks associate attorney for general busi- JARDINE, LOGAN & O’Brien PLLP is a mid- sssss ness and commercial law practice, includ- size law firm in the east metro looking for an ing litigation. Strong academic credentials Associate Attorney with three to five years of LEGACY LAW FIRM, PC is seeking a busi- and excellent writing skills are required. experience in civil litigation and/or workers’ ness law, employment law and estate plan- Experience preferred. Candidates should compensation. Excellent communication ning attorney to add to our team. One or be self-motivated, eager to develop cli- skills and writing skills required. Insurance more years of experience is preferred, ent relationships, and able to manage a defense experience a plus. Our firm offers along with strong academic credentials and diverse caseload. Please submit resume, an extensive history of providing excellent excellent communication skills. Qualified transcript and writing sample to: HR@ legal services to our clients. This is an excit- applicants interested in this opportunity wendlaw.com. ing opportunity for a bright and energetic at- should send a cover letter and resume to sssss torney to work with an established law firm. Felan Link at: [email protected]. Salary commensurate with experience. Jar- All applications will be kept confidential. For FAMILY LAW ASSOCIATE – Otsego, MN. dine, Logan & O’Brien PLLP is an Affirmative more information about our firm, visit our Two Rivers Law PA, a small general prac- Action/Equal Employment Employer. Please website www.LegacyLawFirmPC.com. tice firm, has an immediate opening for an go to www.jlolaw.com to apply. sssss attorney looking to build his or her practice sssss in the northwest suburbs, primarily in the MASCHKA, RIEDY, RIES & Frentz, a nine- area of divorce, custody, and other family ASSOCIATE ATTORNEY Labor and Employ- attorney law firm in Mankato, MN, 70 matters. This is an opportunity for the right ment – Flaherty & Hood, PA, St. Paul, Min- miles south of the Twin Cities, seeks to person to handle his or her own files and nesota, is seeking an associate attorney to hire an attorney to support a busy plain- work at a growing firm in a friendly, self- join its growing and diverse public labor and tiff’s personal injury practice. Experience directed environment. Courtroom experi- employment law practice, along with some of two to five years of experience is pre- ence, strong verbal and writing skills, an en- general litigation, primarily for the firm’s ferred. Candidates must have strong writ- trepreneurial spirit, and a disciplined work municipal clients. Education and a demon- ten and oral communication skills. Excel- ethic are required. Qualified candidates strated interest in labor and employment lent opportunity for growth. Submit cover will have at least two years’ experience in law is required with some litigation skills letter, resume, law school transcript and family law or judicial clerkship. Experience preferred. Flaherty & Hood, P.A. provides a legal writing sample to Annetta Skogen at: in additional areas such as probate, estate collaborative midsize firm environment and [email protected]. planning, bankruptcy would be preferred. competitive salaries and benefits, such as sssss Please e-mail letter of application, resume, group insurances; 401(k); health club and and a writing sample to: David M. Cox at data plan allowances; and paid holidays and INSURANCE DEFENSE firm in downtown [email protected]. paid time off. Please submit your resume by Minneapolis seeks a licensed attorney sssss email to Brandon Fitzsimmons, Shareholder with one to three years of experience for Attorney, at bmfitzsimmons@flaherty-hood. a busy litigation practice. The successful FRANKLIN D. AZAR & Associates, PC is com. More information about the firm is candidate will have strong academic cre- the largest Personal Injury Plaintiffs firm in available at: www.flaherty-hood.com. dentials, excellent analytical and writing Colorado and has represented thousands skills, the ability to effectively communi- of people entitled to recover damages cate and a strong interest in civil defense from injuries in all types of accidents, from LATERAL ESTATE Planning / Real Estate litigation. Please send a cover letter, re- dangerous and defective products, and Attorney – Gislason & Hunter LLP, one of sume and writing sample to Ashley Lien from employers not paying adequate wag- Southern Minnesota’s largest law firms, at: [email protected] es. The firm maintains a powerful team of, seeks a lateral attorney with seven plus sssss in many cases renown, lawyers. Every at- years of experience to join our team. Prac- torney in our firm benefits from a collegial tice areas include estate planning, probate STAFF ATTORNEYS – Family Law. Cen- environment with open access to some and trust administration, and wealth transfer tral Minnesota Legal Services seeks full- of the most experienced and reputable at- tax, as well as real estate and transactional time attorneys for Minneapolis office. Li- torneys in Colorado. Requirements: Dem- work intersecting with complex estate plan- censed in Minnesota preferred. Post-law onstrate strong dedication to personal in- ning, such as business entity formation. The school family law exp preferred. Spanish jury law and a passion for helping people; ideal candidate will have a strong academic/ or Somali language a plus. Salary D.O.E. Possess strong organizational and writing professional background and a demonstrat- up to $61,218. Excellent befits. Resume skills; Be energetic, hard-working, and a ed ability to build client relationships. A por- with references and writing sample to Tina team-player; Have experience with com- table book of business is preferred but not Collins-Foye, CMLS, 111 N 5th St #402, plex litigation; two years of experience required. Gislason & Hunter is a growing, Minneapolis, MN 55403 or email to: info@ preferred but all candidates will be consid- dynamic law firm offering attorneys sub- centralmnlegal.org. Application deadline: ered. Franklin D Azar & Associates offers a stantial resources to grow and support their 10/30/2020 or until filled. EOE.

www.mnbar.org November 2020 s Bench&Bar of Minnesota 39 OpportunityMarket | ATTORNEY WANTED | OFFICE SPACE | PROFESSIONAL SERVICES

sssss TRANSACTIONAL AND / OR Commer- OFFICE SPACE PROFESSIONAL SERVICES cial Attorney — Conmy Feste Ltd., North Dakota’s oldest continuing law practice, ARE YOU READY for better work-from- MEDIATIONS, ARBITRATIONS, special is seeking resumes for an attorney to join home support? We do daily mail scanning master. Serving the metro area at reason- its transactional and commercial law prac- and live phone answering — both included able rates. Gary Larson 612-709-2098 or tice. For well over a century, Conmy Feste in our virtual office services. We also have [email protected]. Ltd. has centered its philosophy on a tradi- Zoom rooms for your Zoom client meet- sssss tion of excellence. Located in downtown ings, Zoom hearings, and Zoom mediations Fargo, the firm represents a broad array of — with all the space you need to be orga- ATTORNEY COACH / consultant Roy S. clients. Successful candidates must have nized and without the interruptions from Ginsburg provides marketing, practice or be in the process of obtaining a law kids and pets. When you use our Zoom management and strategic / succession degree, be licensed or seeking licensure room equipment, it frees up your laptop for planning services to individual lawyers to practice law in North Dakota and Min- all the other important things you use it for. and firms. www.royginsburg.com, roy@ nesota and have excellent interpersonal, Attorneys in our office have said that we’ve royginsburg.com, 612-812-4500. written and verbal communication skills. made it possible for them to practice law sssss Interfacing with clients and working inde- through this pandemic without skipping a pendently are a must. We are looking for beat. If you want that for yourself, give us a BECOME A QUALIFIED neutral! 40-hour someone with a solid work ethic to deliver try. Call Sara at: 612-206-3700. Family Mediation Skills Session Decem- great service to our clients and positively sssss ber 10-11-12 and 17-18, 2020 VIA ZOOM influence our practice. This full-time posi- [Space also reserved in Edina, MN if in- tion offers a competitive compensation MINNETONKA SUITES and Individual Of- person meetings become an option] Reg- and benefit package including health and fices for Rent. Professional office buildings ister at https://tinyurl.com/dec2020med life insurance, a 401(k) profit-sharing plan, by Highways 7 & 101. Conference rooms before 11-1-20 and receive the early bird Section 125 Flex Benefits and more. If you and secretarial support. Furnishings also rate of $1,350.00/After 11-1-20 $1,550.00. would like to join our firm, send a resume, available. Perfect for a law firm or a solo CLE, Rule 114, and CEU credits available. writing sample, law school transcript and practitioner. Office with 10 independent at- For more information, contact Carl Ar- cover letter along with references to Con- torneys. Call: 952-474-4406. minnetonkaof- nold: [email protected] 507- my Feste Ltd., Attn: Wendy Ritchison, P.O. fices.com 786-9999 or Janeen Massaros: smms@ Box 2686, Fargo, ND 58108-2686 or email sssss usfamily.net 952-835-5571. to [email protected]. sssss sssss ROSEDALE TOWERS Solo attorney office. Suite shared with three other attorneys. EXPERT WITNESS Real Estate. Agent TTLO CONSTRUCTION Law seeks an ex- Conference room, includes receptionist. standards of care, fiduciary duties, disclo- perienced associate attorney to support its Contact Randall or Steve. 612-788-2555 sure, damages/lost profit analysis, foren- practice in the areas of construction and sssss sic case analysis, and zoning/land-use is- real estate litigation. Applicants should sues. Analysis and distillation of complex have active litigation experience as well 300 SQ/FT OFFICE space available in mid- real estate matters. Excellent credentials as strong writing skills, legal acumen and way area on University Ave. 10 minutes to and experience. [email protected], common sense. Candidates should email both Hennepin County and Ramsey County 612-207-7895. a cover letter, resume and writing sample courts. Suite shared with two other attor- sssss to: [email protected]. neys, includes copy machine and phone sssss and fax services. Contact Israel on 763-438- VALUESOLVE ADR Efficient. Effective. 2328. Affordable. Experienced mediators and WE’RE HIRING! Experience preferred sssss arbitrators working with you to fit the pro- in family law or estate planning, but not cedure to the problem — flat fee media- required. Southern Minnesota offices in LAW OFFICE / Practice for Sell/Lease in tion to full arbitration hearings. 612-877- great communities with lakes, trails, ex- Buffalo MN. Different office sizes available: 6400, www.ValueSolveADR.org, cellent school and a competitive compen- 150sq/ft, 350, 500, 900, 2000sq/ft... In- sssss sation and benefits package. Patton Hov- cludes everything: Furniture, Files, Comput- ersten & Berg, PA (507) 835-5240 www. ers, Clientele. Contact Gal: (612)701-4436 PARLIAMENTARIAN, meeting facilitator. TM phblawoffice.com. Please send resume sssss “We go where angels fear to tread. ” to: [email protected]. Thomas Gmeinder, PRP, CPP-T: (651) 291- sssss WHITE BEAR LAKE Offices – All Inclusive. 2685. [email protected]. Office space located at 4525 Allendale sssss Drive. Rent ($700–$950 / month) includes PLACE AN AD: telephone system, internet, color copier, MEDIATION TRAINING: Qualify for the Ads should be submitted online at: scanner, fax, conference room, receptionist, Supreme Court Roster. Earn 30 or 40 www.mnbar.org/classifieds. For details call Jackie at: 612-333-1183 kitchen, utilities and parking. Contact Nichole CLE’s. Highly-Rated Course. St. Paul 612- at: 651-426-9980 or [email protected]. 824-8988, transformativemediation.com.

40 Bench&Bar of Minnesota s November 2020 www.mnbar.org FREE FOR MEMBERS ®

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Minnesota Land Use Law

Second Edition January 2017

by Karen E. Marty practicelaw A publication of the Minnesota State Bar Association s eBooks practice resource library A full library of eBooks, including Minnesota Legal Over 2,000 legal forms, trust accounting guides, Ethics, Minnesota Land Use Law, Judges’ Courtroom links to statutes and court rules, and more. Preferences, and IOLTA accounting guides. mnbar.org/practicelaw mnbar.org/ebooks

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