Attorneys & Lawyers & Counselors

Welcome to the New(est) MKT Law Attorney!

I forgot to post about this when she actually started working here a couple/few months ago (or last year), but that’s just because she hit the ground running with a new case that was a bit high maintenance and began about the same day she started working here. But now, without further ado, welcome Andrea L. Nemmers, MKT Law’s new Associate Attorney practicing in the area of civil litigation at the firm!

Ms. Nemmers is a 2014 Graduate of William Mitchell College of Law with legal experience in the corporate and banking environments and was in house counsel before joining the firm at a commodities exchange.  Ms. Nemmers will be expanding her practice into litigation and assisting MKT Law as it transitions to exclusively practicing business litigation and continues to grow.

At MKT Law, Litigation is our Business.TM  

And we have a new attorney!

And here’s her picture (email Ms. Nemmers at aln@mktlawoffice.com or call 651-797-0997):

Andrea L. Nemmers, Esq.  

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Attorneys & Lawyers & Counselors, Fraudulently Fooled

Was law firm duped? ‘Lawyer’ practiced there a decade and won partnership; was she licensed?

Won’t Be Fooled Againhammer-1-1282167-m

Not too long ago, an almost exact situation occurred here in Minneapolis at a large law firm except I think the con was a fake litigator. There were big concerns about any attempts to challenge the cases she worked on as be invalid or subject to motions to reopen, challenge settlement agreements and vacate judgments by opposing counsel wanting to relitigate the cases. Seems almost unbelievable that you’d be able to get away with this at all, let alone for any length of time . . . Full story here: Was law firm duped? ‘Lawyer’ practiced there a decade and won partnership; was she licensed?.

MKT

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Attorneys & Lawyers & Counselors, Civilized Proceedings, On Lines & Inner Nets

Pointless E-mail Disclaimers | Disruptive Library Technology Jester

I am going to reveal my true inner-nerd here so please keep it on the down low, but this is pretty hilarious. It’s a librarian’s blog–no that’s not the funny part—wait—really. It’s a librarian’s blog post on stupid e-mail disclaimers! Any one who e-mails regally with lawyers, has seen so many of these you don’t even notice them anymore (real effective disclaimer) but this one sums up some of the more hilarious ones I’ve read in a while . . .or maybe it’s just the liberation commentary to each one that does it? Either way, I am thankful for humorous librarians this Turkey Day in the year Twenty Fourteen. Enjoy and thank a librarian everyday!

Looks like a librarian to me and its a Public Domain photo!

Looks like a librarian to me and its a Public Domain photo!

Pointless E-mail Disclaimers | Disruptive Library Technology Jester.

DISCLAIMER

I have posted a few times before about funny disclaimers.
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Attorneys & Lawyers & Counselors, Civilized Proceedings

Research Report: Rule 11 Sanctions for Filing Frivolous Rule 11 Sanction Motions for Frivolity

Following is my research report of actual case quotes/snippets that I found interesting (for some reason or another) while I was imageresearching the Question: Can you be sanctioned for bringing a frivolous or otherwise improper Rule 11 Motion for Sanctions?

Answered: Yes and you don’t even need to provide the 21-day safe-harbor period! See Fed.R.Civ.P. 11 (c)(2)(“If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion”) and Minn.R.Civ.P. 11.03 (a)(“If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney fees incurred in presenting or opposing the motion.”).

  • A Rule 11 violation is a serious thing, and “an accusation of such wrongdoing is equally serious.” Draper & Kramer, Inc. v. Baskin-Robbins, Inc., 690 F. Supp. 728, 732 (N.D. Ill. 1988).
  • imageThe imposition of Rule 11 sanctions should not be imposed so as to “ ‘chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories [.]’ ” Robinson Rubber Prod. Co., Inc. v. Hennepin County, Minn., 12 F. Supp. 2d 975, 981 (D. Minn. 1998).
  • When a Rule 11 motion itself is not well grounded in fact or law, or is filed for an improper purpose, the court may sanction the moving party. Safe-Strap Co., Inc. v. Koala Corp., 270 F. Supp. 2d 407 (S.D.N.Y.2003).
  • The Court may impose sanctions for a Rule 11 motion that was “not well-grounded in fact,” and was “filed solely as a litigation tactic,” having “the effect of unnecessarily confusing consideration of the real issues.” Judin v. U.S., 34 Fed. Cl. 483, 493 (Fed. Cl. 1995).
  • “Counsel’s reliance on Gaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir.1987) to rationalize his performance as a good faith effort to challenge existing law is to no avail. He did not even mention the Gordon case . . .” Borowski v. DePuy, a Div. of Boehringer Mannheim Co., 850 F.2d 297, 304-05 (7th Cir. 1988).

11-11-11_m

  • “His conduct throughout the entire case demonstrated the “ostrich-like tactic of pretending that potentially dispositive authority against [his] contention does not exist,” precisely the type of behavior that would justify imposing Rule 11 sanctions.” Id.
  • “The district court was correct in sanctioning plaintiff, who should not be permitted to rely on the defendants to do the research either to make his case or expose its fallacies.” Id.
  • “Rule 11 is not a toy. A lawyer who transgresses the rule abuses the special role our legal system has entrusted to him.” Draper & Kramer, Inc. v. Baskin-Robbins, Inc., 690 F. Supp. 728, 732 (N.D. Ill. 1988). “He can suffer severe financial sanctions and, if his misconduct persists, he can find himself before a disciplinary commission. See, e.g., Model Rule of Professional Responsibility 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous.”). In short, a Rule 11 violation is a serious thing, and an accusation of such wrongdoing is equally serious.” Id.

_woodshed

 

MKT

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Attorneys & Lawyers & Counselors, Litigation of Business | Business of Litigation

Help Wanted–Attorney with 0-3 Years of Experience–Apply Within

MKT Law, PLC, a boutique St. Paul law firm, is looking to add its first associate attorney with 0-3 years of experience. Experience in a law firm setting, as well as an interest in business litigation is preferred. 2014 graduates are strongly encouraged to apply. Interested and qualified candidates should send a cover letter and resume to Mark K. Thompson at mkt@mktlawoffice.com. No phone calls, faxes or snail mail please.

MKT LAW, PLC copy

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Attorneys & Lawyers & Counselors, It's Criminal!, Litigation of Business | Business of Litigation

Minnesota’s Worthless Check Statute–Bounce! Bounce! Bounce!

BounceBounceBounceBounce

~Fatty Koo circa 2005

Rubber Checks

I got a call today for the first time in years by someone who got a bad check as payment for services rendered. I remembered at some point in time there was a Minnesota Statute on point and I seemed to recall it had some significant penalties. Significant as in the penalty doubled the amount of the check.

The Statute 

Never took a bad check

Never took a bad check

I took a look through the books and found the statute and it looked right on at first blush. It is Minnesota Statute, Section 604.113 and it goes like this:

Whoever issues any check that is dishonored is liable for the following penalties:

A service charge, not to exceed $30 . . . if notice of the service charge was conspicuously displayed on the premises when the check was issued . . .

If the amount of the dishonored check is not paid within 30 days after the payee or holder has mailed notice of dishonor . . . and a description of the penalties contained in this subdivision, whoever issued the dishonored check is liable to
the payee or holder of the check for . . .

the amount of the check, the service charge . . .  plus a civil penalty of up to $100 or the value of the check, whichever is greater.  In determining the amount of the penalty, the court shall consider the amount of the check and the reason for nonpayment.

Minn.Stat. § 604.113.

A Couple Problems

  • #1

Well, I had a few problems here. The first is rather obvious: Unless you are a retail store, odds are you do not have a sign prominently exhibited stating a service charge of $30.00 will be charged on all bounced checks. My caller was not a retail store and instead provides services at someone else’s place of business. So one down.

  • #2

So you read along deeper into the statue and you see the $100 penalty.

Well, that’s mighty nice of our legislators to toss us that bone but, well, it’s just nice, I guess. That’s it.

coinsA hundred bucks is not that big of an incentive if the rubber check that bounced is for a couple/few thousand dollars or more.

As you read on you come across the “or the value of the check, whichever is greater” part and you say:

Oh you brilliant elected officials! You based it on the amount of the check! It could not make more sense or been done in a better way. That has some teeth!

As usual, nothing is a good as it looks at first and you have to read the next sentence. With a casual read, it seems like it’s all good: It has the word Penalty and the word Court and the word Must. Nothing wrong here. But that is exactly what is wrong.

  • #3

It is highly likely the Court will save the harshest penalty for the most egregious situations.It is doubtful the Court will throw the book at a check writer who bounced a single check for less than a couple hundred dollars. This only makes since since the statute says the court has to consider the amount and reason for the rubber check. And by saying the Court has to consider these factors, you cannot get a default judgment with the penalties added on (no one there to say why). See also Metro Gold, Inc. v. Coin, 757 N.W.2d 924, 928 (Minn. Ct. App. 2008)(due to doctrine of impossibility, comatose man not liable for penalties since he could not make the check good within the 30 day window allowed).

Attorney’s Fees to Save the Day?twistedcheck

Attorney’s fees are available if all bad checks together are over $1,250. However, the amount of those fees are also discretionary with the Court and it just doesn’t make a whole lot of sense to impose a lot in attorney’s fees on a person whose bank account couldn’t fund the initial purchase as it is. So there’s that . . .

It’s a Crime to Bounce

There are criminal penalties for issuing worthless checks too: It is a misdemeanor if the check is under $250; A gross misdemeanor if the check is over $250 but less than $500; A felony if the check is over $500 (or if all bad checks written in a six month period added together are more than $500). Minn. Stat. § 609.535.

Fun, Fun, Fun with the FDCPA

Finally, if you are a debt collector, be wary of using this statute at all. A violation of the FDCPA can subject the debt collector to liability for actual damages, a $1,000.00 statutory penalty and an award of the debtor’s attorney’s fees (attorney’s fees are mandatory and have been 6 and even 10 times the amount recovered for the plaintiff). Phenow v. Johnson, Rodenberg & Lauinger, PLLP, 766 F. Supp. 2d 955, 959 (D. Minn. 2011).

There are cases with claims under the Fair Debt Collection Practices Act (FDCPA) where the Court found the FDCPA was violated by a collector for overstating the effect and amount of Minn. Stat. § 604.113 by saying the penalties “would be” imposed or that the debtor “was liable” for the penalties. Picht v. John R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001)womancheque.

Because the amounts are not fixed and the amount can only be finally determined by a Court, collection letters that state the penalties “will” or “shall” be imposed have been found to be volitional under the FDCPA §1692f(1)(prohibiting the attempt to collect any sum not specifically authorized by contract or law and strictly applied using the “unsophisticated consumer” as the baseline for determining violations).  See Duffy v. Landberg, 215 F.3d 871, 875 (8th Cir. 2000)(debt collector stating interest that was inflated by $0.65-yes 65 cents-found to have violated FDCPA).

Carefully Closing

Minnesota’s worthless check statute: It’s not totally toothless–it can bite you back.

MKT

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Attorneys & Lawyers & Counselors, On Lines & Inner Nets

Legal E-mail Disclaimer Post (reblogged)

Here’s a great post from a Texas lawyer, Mark Bennett, from his blog called “Defending People – the toa of criminal-defense trial lawyering” descriptively entitled “Stupid Lawyer-E-mail Disclaimer.” Enjoy.

http://blog.bennettandbennett.com/2014/07/stupid-lawyer-email-disclaimer.html

For my Stupid Lawyer Disclaimer, please click here. Mine is (hopefully) an obvious joke.

Now I’m wondering if the disclaimer in this post is serious. Since it is almost as far over the top as my disclaimer is maybe it is not to be taken seriously? Maybe it actually is serious?

Oh no! Is my disclaimer being taken seriously? Maybe my disclaimer needs a humor disclaimer? Hmmmmmm? I must ponder and research this weighty and circular legal issue.  I’ll report back soon.

MKT

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