Category Archives: Minnesota

Government Shut Down and the NLRB

When the shut down occurred, the NLRB closed its doors.  What is interesting is that the NLRB’s website is also down.

There are several notes that need to be pointed down.  Even though the NLRB is shut down, unfair labor practice charges’ statute of limitations of 6 months keeps running.  The statute of limitations is the time that a person/organization/company has to enforce their rights.  After that period, they may lose their right to do so.

The federal register provides:

Extensions for time of filing cannot apply to the 6-month period provided by Section 10(b) of the Act for filing charges, 29 U.S.C. 169(b), or to Applications for awards of fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. 504.

….

(emphasis added).

The federal register also cautions persons to file the charge via fax and to serve the charges themselves.  The federal register states:

Notwithstanding the foregoing, persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operation is uncertain.

Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.

…..

Moreover, persons filing a charge are reminded that it is their responsibility… to serve a copy of the charge upon the person against whom the charge is made.  While Regional Directors ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy, they do not assume responsibility for such service, and it is unlikely that the Agency will be able to serve the charges during any period of shutdown due to a lapse in appropriated funds.

(emphasis added).

In summary, you must do as follows:

  1. Serve the unfair labor practice charge and the applications of fees and other expenses via fax.
  2. Serve the papers to the person against whom the charge is made.

Regarding other issues, the federal register explains that they are postponed.  These include hearings in front of Administrative Law Judges, pre and post election hearings, and filing or serving of documents (including briefs and appeals).

via NLRB |.

Leave a comment

Filed under federal, labor, Minnesota, NLRB, Pending Legislation, rules, union

Law Schools Cuts

The ABA Journal reporting on an interesting trend.  Law Schools are trying to deal with the current economic situation and the decline of law school applicants.

The Wall Street Journal  (subscription required) reports that LSAC’s (Law School Admission Council) most recent data shows that as of July 5th, applications for the entering class of 2013 fell by 36% compared to the entering class in 2010.

These faculty cuts are noted in the article:

  • Hamline University School of Law in St. Paul, Minn., has cut full-time faculty about 18 percent since 2010. Fourteen faculty members have left or plan to leave after accepting early retirement incentives.
  • Eight professors at Vermont Law School have agreed to retire early, take pay cuts or give up tenure.
  • Twenty-one professors accepted buyout packages at Widener University School of Law in Wilmington, Del., and Harrisburg, Pa.
  • Seven professors accepted early retirement packages from the University of Dayton School of Law.
  • Seven untenured professors at Seton Hall University School of Law in Newark, N.J., have received notice that their contracts might not be renewed for the 2014-15 academic year.
  • The University of the Pacifics McGeorge School of Law in Sacramento, Calif., is accelerating plans to cut the size of the law school and use some of its campus for other graduate-level classes.

via Law schools cope with declining enrollment by quietly cutting faculty – ABA Journal.

Leave a comment

Filed under Law Schools, Minnesota

Minn. Sup. Ct. reins in expungement power

Minnesota Lawyer (subscription required) has an interesting article regarding expungement of adult and juvenile cases.

In this decision, the Minn. Sup. Ct. declined to recognize a court’s inherent authority to order expungement of executive branch records of an adult’s criminal history (State v. M.D.T.).  When explaining prior precedent, the court differentiated State v. C.A., where the language was dicta and the case did not involve executive records.

The Minn. Sup. Ct. also narrowly construed a juvenile’s statutory expungement remedy in companion cases (In the Matter of the Welfare of: J.J.P.).  Here, the court held that the authority of the court under Minn. Stat. sec. 260B.198 is limited to the order adjudicating the juvenile delinquent.

Leave a comment

Filed under Appellate, courts, legal decision, Minnesota, Privacy Rights, state, Supreme Court

New Homeowners Bill of Rights

Governor Dayton will soon be signing a new bill that includes new protections for homeowners facing foreclosures.  This new law is known as the Homeowners Bill of Rights.

Some of the ways that it protects homeowners are as follows:

  • Loan servicers are required to communicate all options to homeowners.
  • Loan servicers are required to offer loan modifications to all eligible homeowners.
  • “Dual tracking” is banned.  Dual tracking is when servicers foreclose without a clear yes or no on loan modification.
  • Servicers are required to assist homeowners in submitting documentation regarding the foreclosure process.
  • Homeowners are allowed to take the servicer to court to stop a foreclosure if the servicer fails to comply with any aspect of the law.

 

Leave a comment

Filed under civil rights, Minnesota

Giving up your password when looking for a job?

Should your potential employer require you to give up your password to Twitter? Facebook? LinkedIn? Will your comments, background information, age, nationality, pictures be used against you?

What if the employer does not use that information, but still has access to it?  Would that raise a concern that it was in fact used against a job applicant?  Allowing the requirement of social media passwords bring potential liability issues to employers.

Minnesota Lawyer (subscription required) has a very interesting article.   The Minnesota proposed bill, introduced by Rep. Mary Franson (R-Alexandria) seeks to ban employers from asking job applicants for their social media passwords as part of the job interview.  It is important to note, as stated by the article, that the bill does not discuss already hired employees and the use of employer laptops, computers, smartphones, etc.

Pending legislation in Minnesota includes H.F. 293, H.F. 611, S.F. 484, and S.F. 596.  All of these bills seek to ban employers fro requiring social network passwords as a condition of employment.

The National Conference of State Legislation reports that there are at least 29 states with introduced or pending legislation seeking to ban employers from requiring/asking for these social media passwords.

Leave a comment

Filed under civil rights, discovery, electronic discovery, Minnesota, Pending Legislation, Privacy Rights

Gov. Dayton drops business-to-business tax

MinnPost reports that Governor Dayton dropped the controversial business-to-business tax, which would impose taxes on legal services.

Gov. Mark Dayton said in a speech Friday morning that he’s taking the controversial business-to-business tax — which had been much villified by many executives  — off the table.

Speaking to the TwinWest Chamber of Commerce Legislative Breakfast at a St. Louis Park hotel, Dayton brought much relief to many business leaders there. State officials said it would have added $2.2 billion in state revenue by taxing business services such as advertising and legal advice.

MPR reported that Dayton said his initial budget proposal “obviously lacked public support” and that now “it lacks mine.”

Now, the anticipated new budget was set to be released on Tuesday, but it was delayed.  Governor Dayton’s staff stated that it will released “later in the week” since the tweaking of numbers continues. You can read MinnPost article here.

via Gov. Dayton takes business-to-business tax out of his budget | MinnPost.

Leave a comment

Filed under Minnesota, Pending Legislation

In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

Leave a comment

Filed under courts, discovery, District Court, electronic discovery, Judges, legal decision, Minnesota, rules, sanctions

Minnesota Lodestar Fees in Consumer Protection cases

On February 13th, the Minnesota Supreme Court held that the lodestar method must be used when determining attorney fees in consumer protection cases.

An unanimous Minnesota Supreme Court in Green v. BMW of N. Am., A11-0581 (Minn. Feb. 13, 2013), ruled that the lodestar method applies for the attorney fee calculation under Minnesota’s lemon law.  In addition, the Minnesota Supreme Court stated that courts must consider, among other factors, the amount involved in the litigation and the results obtained.

In the Green case, the district court issued a verdict in favor of Green and awarded her $25,157 in damages.  The district court also granted attorney fees and costs in the amount of $229,064.  The Minnesota Court of Appeals affirmed.  The Minnesota Supreme Court reversed the decision, and remanded.

When determining the appropriate amount for fees – the court did not consider any other factors, other than the reasonableness of the fees.  The court heavily relied on the policy behind the fee-shifting provisions.  The court explained that the purpose of fee-shifting provisions was to provide incentives for attorneys to take these types of cases.

The district court did not award fees under the Magnuson-Moss Warranty Act because the court did not allow for double recovery.

The Supreme Court reversed the fees decision because the lodestar method should have been applied.  Under Minnesota’s Lemon Law, Minn. Stat. 325F.665, subd. 9, consumers “may bring a civil action to enforce” the lemon law and “recover costs and disbursements, including reasonable attorney’s fees incurred in the civil action.”

The Supreme Court explained that Minnesota courts have consistently used the lodestar method for determining the reasonableness of fees.  In fact, courts have used the lodestar method in numerous settings, including MFLSA, MHRA, Minnesota Securities Act, and in polygraph testing.  Given the broad application of lodestar, the Supreme Court held that applying lodestar in consumer protection cases was appropriate.

When applying the lodestar method, courts must first determine the number of hours reasonably expended and multiply those hours by a reasonable hourly rate.  When determining “the reasonable value of legal services,” the court must consider “all relevant circumstances.”  The Supreme Court explained,

The circumstances that inform a court’s “determine[ation of] reasonableness include ‘the time and labor required; the nature and difficulty of the responsibility assumed; the amount involved and the results obtained; the fees customarily charged for similar legal services; the experience, reputation, and ability of counsel; and the fee arrangement existing between counsel and the client.’”

The Supreme Court rejected the argument that the “amount involved” was confined to a consideration of the amount involved only as it relates to a prevailing party’s percentage of success.  The Supreme Court held that courts look “to both the amount involved and the results obtained.” (emphasis in original).

Leave a comment

Filed under Appellate, attorneys, civil rights, courts, District Court, fees, legal decision, Minnesota, Supreme Court, taxable costs

Admission to the MN Bar changes

On January 17, 2013, the Minnesota Supreme Court has affirmed changes to the admission to the Bar.  The amendments that changed the Rules of Admission are:

Definitions:  Rule 2A(12) definition of Uniform Bar Examination.  Under the new amendment, UBE is “an examination prepared by the National Conference of Bar Examiners (NCBE), comprised of six Multistate Essay Examination questions, two Multistate Performance Test questions, and the Multistate Bar Examination.  See amendments to Rule 7C (Admission by UBE score).

Requirements for Admission:  Rule 4A(4) was amended to state that an eligible applicant must provide satisfactory evidence of a passing score on the written examination under Rule 6 and is not eligible for admission under Rules 7A (Eligibility by Practice), 7B (Eligibility by MBE), 7C (Eligibility by UBE), 8, 9, or 10.

Requirements for Admission:  Rule4B was stricken.  Rule4B previously stated that the applicant had to be a resident of Minnesota or maintain an office in Minnesota or designate the Clerk of Appellate Courts as agent for service of process for all purposes.

The Examination:  Rule 6E(1) Essay Questions was amended to delete the following subjects:

  1. Civil Procedure (but note that the amendment added a Federal Civil Procedure subject);
  2. Ethics and Professional Responsibility;
  3. Federal Individual Income Taxation;
  4. Uniform Commercial Code Art. 1 &2 (but note that under the Contracts subject, the amendments include the UCC; as well as the new subject of Negotiable Instruments); and
  5. Wills, Estates and Trusts (but note that there is a new subject of Trusts and Estates).

The Examination:  Rule 6E(1) Essay Questions added the following subjects:

  1. Conflict of Laws;
  2. Federal Civil Procedure;
  3. Negotiable Instruments (Commercial Paper) under the UCC;
  4. Secured Transactions under the UCC; and
  5. Trusts and Estates.

The Examination:  Rule 6E(1) Essay Questions further stated what topics where covered under the following subjects:

  1. Business Associations – the subject no longer includes proprietorships;
  2. Contracts – the amendment stated the subject includes contracts under the UCC; and
  3. Trusts and Estates – the subject includes Decedents’ Estates, and Trusts and Future Interests

The Examination: Rule 6E(2) Multistate Performance Test stated there will be two 90-minute questions.  The prior rule stated one or two.

Admission Without Examination:  Rule 7A(C) Eligibility by UBE score was added to the ways an applicant may be admitted.  Rule 7A(C) states that the applicant might have received a certified scaled score of 260 or higher.  Rule 7A(C) also states the application must be completed within 36 months of the date of the examination.

Admission Without Examination:  Rule 7A(D) Transfer of MBE or UBE score was amended to add UBE.

Confidentiality and Release of Information:  Rule 14C(4) Examination of Data now includes the disclosure of the UBE.  In addition Rule 14C(5) specifies that the director may release copies of unsuccessful examinee’s answers to MEE and MPT questions.

via STATE OF MINNESOTA. (published by Minnesota Lawyer – subscription required).

Leave a comment

Filed under Law Schools, law students, Minnesota, rules

Campaigners Can’t Lie in MN

Minnesota can prohibit political campaign workers from swaying an election by intentionally lying about a candidate or ballot question, a federal judge ruled.

The Minnesota Fair Campaign Act makes it a gross misdemeanor for anyone “who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material with respect to the personal or political character or acts of a candidate, or with respect to the effect of a ballot question, that is designed or tends to elect, injure, promote, or defeat a candidate for nomination or election to a public office or to promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.”

It drew a challenge in 2008 from the 281 CARE Committee and the Citizens for Quality Education, which campaign against ballot initiatives that seek increased funding for school districts through bond increases and tax levies.  The groups claimed that the law violated their right to free speech and chills their ability to participate in rigorous political debate.  A federal judge in Minneapolis dismissed the complaint for lack of standing, but the 8th Circuit reversed in May 2011.

On remand, U.S. District Judge Ann Montgomery granted summary judgment to the defendants, who consisted of two county attorneys and the state attorney general.

“Plaintiffs correctly note that our countrys forefathers used rancourous[sic], sometimes false statements to influence voters or even gain material benefits for themselves,” Montgomery wrote.

“But whats past is not always prologue. Over a century ago, the Minnesota legislature implemented minimal, narrow restrictions against knowingly false speech about political candidates in an effort to protect the debates between honestly held beliefs that are at the core of the First Amendment. For nearly a quarter of a century, these restrictions have also applied to statements regarding ballot initiatives. The ballot provisions in Minn. Stat. § 211B.06 reflect a legislative judgment on behalf of Minnesotan citizens to guard against the malicious manipulation of the political process. The court finds that the provisions at issue are narrowly tailored to serve this compelling interest.”

Though Minnesota Attorney General Lori Swanson had sought dismissal on the basis of qualified immunity, Montgomery deemed this question moot.

via Courthouse News Service.

Leave a comment

Filed under District Court, Judges, Minnesota