Selecting a College

In the summer of 1956 (before my final year of high school), I visited Harvard, Yale and Princeton Universities and the University of Chicago. I obviously thought that I was qualified at least to apply to these elite institutions.  However, my family was of very modest financial means, and I concluded I could not afford to go to any of these institutions. As a result, I never applied to them.

Grinnell College

At the time I also was considering Grinnell College because of its reputation for academic excellence, its small size and its being located in my home state of Iowa. It, however, was more expensive than the state universities in Iowa and thus also probably beyond my family’s financial capacity.

That Fall, however, a high school counselor told me about a competitive full-tuition scholarship at Grinnell College called the George F. Baker Scholarship. I applied for that scholarship, went to the College for an interview and was awarded the Scholarship. This made it financially possible for me to attend Grinnell, and I enrolled the next Fall at the College. Successful academic performance resulted in renewal of the Scholarship for my full four years for total financial aid of $3,700.[1]

 

George F. Baker

George F. Baker (1840-1931) had no personal connection with Grinnell. He was a U.S. financier and a co-founder of the First National Bank of New York that later became Citibank N.A. He was a director of many corporations and amassed a great fortune.[2]

Baker’s fortune was used to fund his many philanthropic endeavors. He provided much of the original funding for the Harvard Business School and its Baker Library. He also gave the money for the Baker Memorial Library at Dartmouth College, the Baker Field for athletics at Columbia University and many other charitable causes in New York City.[3]

In 1946 the George F. Baker Trust started the George F. Baker Scholarship program that as of 1964 had provided scholarships to some 700 to 800 men at 25 colleges and universities throughout the U.S. This Scholarship program ended in about 1977. The recipients were chosen by these institutions on a highly selective basis.[4]

In or about 1951, the Trust added Grinnell College as one of the institutions participating in the Scholarship program. The Trust gave the College $50,000 to be distributed to outstanding young men who were graduating from high school during the next four years (1951-54).[5] The Trust’s relationship with Grinnell must have been renewed as it was available to me, 1957-61.[6]


[1]  Letter, the Trust  to Duane Krohnke (May 1, 1976).

[2] Wikipedia, George Fisher Baker, http://en.wikipedia.org/wiki/George_Fisher_Baker.

[3] Id.

[4] Letter, the Trust to Duane Krohnke (Sept. 1964); letter, the Trust to Duane Krohnke (June 25, 1965).

[5] Charles H. Foster, A Quest for Leadership in the Small Town High Schools of America (circa 1951)(Grinnell College brochure written at request of Grinnell College President Samuel N. Stevens).

[6] I have not been able to ascertain the exact period the Baker Scholarships were available at Grinnell.

Resolving Disputes between Manufacturers and Distributors/Dealers

Since at least the last half of the 20th century, manufacturers of consumer goods typically have gotten their products to the end user in the U.S. via independent distributors and dealers or franchisees. Usually the manufacturers are larger companies while the others are smaller entities. They all have a community of interest in promoting the sales of the products at the highest prices with the greatest profits. But there also is a constant tension and friction between them and the potential for disputes. This is at its worst when the manufacturer terminates the distributor or dealer or franchisee.

I frequently was the attorney for the manufacturer in such termination cases. I successfully represented Chrysler Motors Corporation against a terminated Duluth dealer and Benjamin Moore & Company against a terminated St. Paul distributor.[1] I also was able to obtain judicial reduction of adverse results against a manufacturer and a franchisor that had been represented by other counsel.[2] Three of these four cases started in Minnesota’s federal court (Post: Minnesota’s Federal Court (June 28, 2011).

In addition, I helped to settle other such cases. One was for a Canadian manufacturer of snowmobiles. Another, for a U.S. manufacturer of farm equipment. Both of these cases were in Minnesota’s federal court.

Another type of dispute erupted between Chrysler and its Dodge dealer in St. Paul over the planned relocation of another Dodge dealer from East Lake Street in Minneapolis (the automobile row of the early 20th century) to Roseville, a suburb between the Twin Cities. Under a Minnesota statute that sought to protect existing dealers, the St. Paul dealer sued to block the relocation. The trial court, however, decided in favor of Chrysler, and the appellate court affirmed that result.[3]

Because of the costs and risks of such litigation and because of my interest in Alternative Dispute Resolution, I helped other lawyers in the firm draft dispute resolution provisions for various agreements, including distribution agreements.

Often such provisions would first call for mediation where a neutral third-party assists the disputants in trying to settle their disputes. This was my preferred dispute resolution method because it empowered the parties themselves to settle their disputes, because it opened the way for creative solutions that were not possible in court or in arbitration and because it was the least expensive option. Only if mediation failed, would such a contractual provision call for submitting the dispute to arbitration under one of several general sets of arbitration rules where the arbitrator resolves the dispute. Arbitration was preferred to court litigation because the former eliminated the expensive pre-trial discovery and other processes of the latter and because the parties participated in selecting the arbitrator who was seen as a safer decider than an unknown judge or jury.

From the outside these disputes took the form of a large corporation versus a small corporation. But human beings were involved on both sides. The executives of the manufacturer had made decisions they thought were fully justified, and their careers and compensation conceivably could be affected by the resolution of the conflict. The same was true of those on the other side. Moreover, emotions often were intense in such quasi-divorce situations. In one case, the owner of the dealership sued his own lawyer over the settlement of his case against the manufacturer. Later that owner killed his girl friend and was acquitted on the grounds of insanity. I was worried because he might view me as part of the conspiracy against him.


[1] Piccard Motor Co. v. Chrysler Motors Corp., 940 F.2d 1163 (8th Cir. 1991)(held Minnesota statute requiring manufacturer to pay terminated dealer one-year’s fair rental value of facilities did not apply to dealer that owned the facilities); Elvgren Paint Supply Co. v. Benjamin Moore & Co., 948 F.2d 1082 (8th Cir. 1991)(affirmance of summary judgment for manufacturer’s termination of an at-will distributor).

[2] W.K.T. Distributing Co. v. Sharp Electronics Corp., 746 F.2d 1333 (8th Cir. 1984)(remand to trial court to reconsider award of $300,000 damages); W.K.T. Distributing Co. v. Sharp Electronics Corp., 786 F.2d 898 (8th Cir. 1986)(noting trial court’s reduction of damages from $300,000 to $85,000 after remand, but refusing to make further reduction); Team Central, Inc. v. Teamco, Inc., 271 N.W.2d 914 (Iowa Sup. Ct. 1978)(en banc reduction of adverse judgment from $2,550,000 to $1,500,000).

[3] Wilkins Dodge, Inc. v. Chrysler Corp., 426 N.W.2d 903 (Minn. Ct. App.), pet. for review denied (Minn. Sup. Ct. 1988).

The Personal Jurisdiction Requirement for Civil Lawsuits in U.S. Courts

A certain connection between a defendant and the geographical jurisdiction of a court is necessary in order for a civil lawsuit to proceed in the U.S.

This connection exists, for instance, if an individual defendant is served with a summons and complaint while he is in the geographical jurisdiction of the court or if the defendant waives the defense of lack of personal jurisdiction. Similarly there is clearly personal jurisdiction when an individual defendant is a resident of the geographical jurisdiction of the court or a defendant corporation or other business entity was organized under the laws of that jurisdiction or is “doing business” there.

U.S. Supreme Court Building

In addition, there is personal jurisdiction if the defendant has sufficient “minimum contacts” with the forum state, such that summoning the defendant to the forum state would not offend “‘traditional notions of fair play and substantial justice.’ ” This is the U.S. Supreme Court’s articulation of the requirement under the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court also has said that a defendant’s “minimum contacts” with the forum must be more than “random,” “fortuitous,” or “attenuated.” Sufficient contacts exist when “the defendant’s conduct and connection with the forum . . . are such that he should reasonably anticipate being haled into court there.” In assessing the defendant’s reasonable anticipation, there must be “ ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum . . ., thus invoking the benefits and protections of its laws.’ ”[1]

This test is the same whether the defendant is from another state in the U.S. or from a foreign country. However, as the United States Supreme Court has stated, “ ‘Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.’ ”[2]

Thus, any defense lawyer in a civil case immediately must determine whether personal jurisdiction obviously is established or whether there is a legitimate basis to challenge this requirement by asserting the defense in the answer to the complaint or by moving to dismiss the case before anything else happens.[3]

As a civil litigator, I encountered this issue all the time in my practice. In two cases for foreign clients I obtained dismissal of the complaint for lack of such jurisdiction at the start of the cases.

Fraser Bridge, Delta, B.C., Canada

In one case, my client was a Canadian corporation from Delta, British Columbia that was a subcontractor to a company from the State of Washington that had an agreement with a Twin Cities FM-radio station to provide certain electronic equipment for the station. The equipment was manufactured by the Canadian company and sold to the Washington company that in turn sold it to the radio station. The equipment allegedly did not work properly so the station sued the Canadian company in a Minnesota state court. The trial court granted the motion to dismiss for lack of personal jurisdiction, and the appellate court affirmed. The latter emphasized that the Canadian company never had an office, owned property or filed tax returns in Minnesota, had never had a mailing address or telephone number in this State, and did not negotiate any agreement with the radio station. While the Canadian company, upon request, shipped the equipment directly to the station in Minnesota and later sent a technician to the state to attempt to fix the equipment, hand delivered a part for the equipment to the station and mailed certain drawings of the equipment directly to the station for use by its consultant, these contacts were insufficient to justify jurisdiction.[4]

Singapore skyline

In the other case, my clients were parent and subsidiary companies from Singapore. Again the trial court (Post: Minnesota’s Federal Court (June 28, 2011) dismissed the case for lack of personal jurisdiction, and the appellate court affirmed. The latter court noted that the Singapore subsidiary had sent numerous letters and faxes and made several telephone calls to Minnesota in connection with the contract and that the contract contained a Minnesota choice-of-law provision. In addition, the Singapore subsidiary sent four samples of the product in question to Minnesota. These, however, the court held to be insufficient to justify personal jurisdiction.[5]

The appellate court in this second case concluded by saying that the negotiations, meetings, production, and delivery were all centered in Singapore. The contacts with Minnesota appeared at best as inconsequential rather than substantial under these circumstances. The Singapore subsidiary did not create a substantial connection between itself and Minnesota, it merely engaged in negotiations with a purchaser who happened to reside in Minnesota. Given the nature and quality of the Singapore subsidiary’s  contacts with Minnesota, traditional notions of fair play and substantial justice indicated that it would not expect to litigate in the State of Minnesota.[6]

The personal jurisdiction issue is part of the regular tool kit of the trial lawyer and litigator. Yet it is built on the constitutional bedrock of fair play.


[3] E.g., Federal Rules of Civil Procedure 8 (c ), 12(b)(2).

[4]  KSTP-FM, LLC v. Adtronics Signs, Ltd., 602 N.W.2d 919 (Minn. Ct. App. 1999).

[5] Digi-Tel Holdings, Inc. v. Proteq Communications, Inc., 89 F.3d 519 (8th Cir. 1996).

[6]  Id.

A “Virtual” Constitutional Convention

In 1996 eleven other former Rhodes Scholars and I were “delegates” to a virtual U.S. constitutional convention.[1]

The other delegates were far more accomplished than I: (1) Samuel Beer, a distinguished author and political science professor at Harvard University;[2] (2) John Brademas, former Member of Congress and President of New York University;[3] (3) Jack Justice, a Philadelphia lawyer;[4] (4) Philip Kaiser, a former U.S. diplomat;[5]  (5) Jonathan Kozol, author, educator and activist about children;[6] (6) Jason McManus, a journalist and executive with Time/Life;[7] (7) Larry Sabato, author and professor of government, University of Virginia, and Director of its Center for Politics;[8] (8) Frank Sieverts, a specialist in refugee and relief issues at the State Department for 25 years and later an executive in the Washington office of the International Committee of the Red Cross; [9] (9) Reginald Stanton, a New Jersey lawyer and former state court judge; [10] (10) Lester Thurow, author and professor of management and economics, MIT;[11] and (11) Edwin Yoder, journalist and professor of journalism and humanities, Washington and Lee University .[12]

We first were asked to state in writing what, if any, constitutional changes we would propose in a contemporary constitutional convention. Then we were asked to comment in writing on the others’ suggestions. (This was before the advent of electronic, interactive communications technology with which we are familiar today.)[13]

I made two suggested constitutional changes. One was a federal campaign finance amendment that would assign individual financial contributions to a federal election fund that, in turn, would provide financing to federal election candidates. Such an amendment would overturn the Supreme Court’s interpretation of the First Amendment as protecting money as speech, an amendment needed even more now after the Court’s 2010 decision in Citizens United v. Federal Election Commission. The other suggested constitutional amendment was to increase the term of office of members of the House of Representatives from two to four years with their election the same time as the president. This should result, I said in 1996, in less divided and stalemated government.[14] We could have benefited from such an amendment in 2010.

In my rebuttal, I observed that nearly everyone objected to the idea of holding a real constitutional convention in the late 1990’s, that no one had proposed a radically new concept of a constitution and that everyone had offered ideas for incremental change.[15]

Our most important proposals, I thought, all were designed to facilitate the people’s voice being heard through the electoral process. Three others joined me in suggesting campaign finance amendments. No one suggested term limits for members of the House or Senate, and several wanted repeal of the XXII Amendment that imposed a two-term limit on the president. A number of proposals were made to make changes in the electoral college for the election of the president and vice president. Larry Sabato wanted to make voting in the presidential election mandatory. Two other delegates proposed increasing the Representatives’ term to four years as did I. Some noted the increasing anti-majoritarian nature of the U.S. Senate and suggested reallocating Senate seats from smaller to larger states to remedy that problem, and one “delegate” proposed making ex-presidents ex-officio members of the Senate.[16]

In my rebuttal I disagreed with Jonathan Kozol’s desire for children’s rights amendments. His comments, reminded us, however, I said, of the profound need to counter-balance the voting ranks of the retired people. I, therefore, offered for debate the idea of extending the voting franchise to children of all ages. There were obvious administrative problems that would have to be solved to make that possible.[17]

Interestingly in terms of the political debates of 2011, no one suggested there be a balanced budget amendment. Moreover, John Brademas reiterated his public opposition to such an amendment as “dangerous to national security and the nation’s economy.” This idea and others like it, he said, “attempt to decide current political controversies outside the regular give-and-take of the legislative process. The effect of such proposals is to trivialize the Constitution and diminish respect for its central, fundamental place in the American system of governing.”[18]


[1] A “Virtual” Constitutional Convention, American Oxonian, Fall 1996, at 232.

[2] Samuel Hutchison Beer, Harvard Scholar of British and American Politics, Dies at 97, ces/news/press-releases/beer-04102009.shtml.

[3] Wikipedia, John Brademas, http://en.wikipedia.org/wiki/John_Brademas.

[4] Register of Rhodes Scholars 1903-1005 at 183.

[5] Wikipedia, Philip Mayer Kaiser, http://en.wikipedia.org/wiki/Philip_Mayer_Kaiser.

[6] Wikipedia, Jonathan Kozol, http://en.wikipedia.org/wiki/Jonathan_Kozol; Jonathan Kozol, http://www.learntoquestion.com/seevak/groups/2002/sites/kozol/Seevak02/                                                                          ineedtogoHOMEPAGE/homepage.htm.

[7] Wikipedia, Jason McManus, http://en.wikipedia.org/wiki/Jason_McManus.

[8] University of Virginia, Larry J. Sabato, http://www.centerforpolitics.org/staff_sabato.html; Larry Sabato, http://www.larrysabato.com.

[9]  Stout,  Frank A. Sieverts, 70, Specialist In Refugee Issues at State Dept., N.Y. Times (April 7, 2004).

[10] Walker Research, Reginald Stanton, eprofile/R/Reginald__Stanton_400170555.html.

[13]  American Oxonian, Fall 1996, at 232.

[14]  Id. at 235-36.

[15]  Id. at 259-61.

[16]  Id.

[17]  Id.

[18]  Id. at 244-45.

Downgrading the U.S. Credit Rating

On Friday, August 5th, after the close of the U.S. securities markets, Standard & Poor’s (S&P) reduced its rating of the U.S. Government’s debt from S&P’s highest rating of “AAA” to its second highest rating of “AA+.” [1]

S&P’s announcement of this action was headlined: “United States of America Long-Term Rating Lowered To ‘AA+’ Due To Political Risks, Rising Debt Burden; Outlook Negative.” The key reasons for this downgrade were the following:

  • “The downgrade reflects our opinion that the fiscal consolidation plan that Congress and the Administration recently agreed to falls short of what, in our view, would be necessary to stabilize the government’s medium-term debt dynamics.”
  • “More broadly, the downgrade reflects our view that the effectiveness, stability, and predictability of American policymaking and political institutions have weakened at a time of ongoing fiscal and economic challenges to a degree more than we envisioned when we assigned a negative outlook to the rating on April 18, 2011.”
  • “Since then, we have changed our view of the difficulties in bridging the gulf between the political parties over fiscal policy, which makes us pessimistic about the capacity of Congress and the Administration to be able to leverage their agreement this week into a broader fiscal consolidation plan that stabilizes the government’s debt dynamics any time soon.” [2]

In short, this objective outsider concluded, properly I think, that the U.S. “policymaking and political institutions” are not working. As S&P further stated, the U.S. recently has seen “political brinksmanship,” and “the statutory debt ceiling and the threat of default have become political bargaining chips in the debate over fiscal policy.” In addition, S&P noted that “new revenues have dropped down on the menu of policy options.”[3]

While these observations are appropriately phrased in terms of the “U.S. policymaking and political institutions,” they really are a negative assessment of the political objectives, strategy and tactics of the Tea Party contingent of the Republicans in the House of Representatives and to a lesser extent in the Senate.[4]

Moreover, according to S&P, “the difficulty in framing a consensus on fiscal policy weakens the government’s ability to manage public finances and diverts attention from the debate over how to achieve more balanced and dynamic economic growth in an era of fiscal stringency and private-sector deleveraging.”[5] This comment raises the important need for the U.S. to reduce unemployment and achieve higher economic growth, which is made more difficult by the austerity measures promised in the debt ceiling compromise that became law on Tuesday, August 2nd.[6]

If the above were not enough criticism of the U.S. federal government, S&P made the following two ominous statements about its future actions:

  • First, S&P signaled that on Monday, August 8th, it will be downgrading its credit ratings of “the funds, government-related entities, financial institutions, insurance, public finance, and structured finance sectors.”
  • Second, S&P said, “The outlook on the long-term rating [of the U.S.] is negative. We could lower the long-term rating to ‘AA’ within the next two years if we see that less reduction in spending than agreed to, higher interest rates, or new fiscal pressures during the period result in a higher general government debt trajectory than we currently assume in our base case.”[7] This warning stemmed from S&P’s “downward scenario.” There were two key facts for this scenario. The “recent [U.S.] recession was deeper than previously assumed, so the GDP this year is lower than previously thought in both nominal and real terms. Consequently, the debt burden is slightly higher.” The U.S. is experiencing “sub-par path of the current economic recovery when compared with rebounds following previous post-war recessions.”[8]

Although two other independent credit-rating entities did not change their top ratings of the U.S. government, S&P’s downgrade, the rationale for its downgrade and its ominous warnings of further negative assessments of the U.S. undoubtedly will create next week another turbulent period in U.S. and world security markets.


[1] S&P, United States of America Long-Term Debt Rating Lowered to ‘AA+’ Due To Political Risks, Rising Debt Burden; Outlook Negative (Aug. 5, 2011), http://www.standardandpoors.com.

[2]  Id.

[3]  Id.

[4]  See Post: Disgusting U.S. Political Scene (July 23, 2011); Post: The Founder of Modern Conservatism’s Perspective on the Current U.S. Political Turmoil (July 28, 2011); Post: A Message for Speaker Boehner (July 29, 2011); Post: Dysfunctional U.S. Congress Careens Toward U.S. Default (July 30, 2011); Post: Dysfunctional U.S. Congress Averts Default (Aug. 2, 2011); Editorial, Political Roots in U.S. Economic Crisis, N.Y. Times (Aug. 5, 2011).

[5]  See n.1 supra.

[6]  See n.3 supra.

[7]  See n.1 supra.

[8]  Id.

 

Westminster Town Hall Forum: Fall 2011 Speakers

This coming Fall, the Westminster Town Hall Forum will welcome the following speakers: Norm Ornstein, Jeffrey Sachs, Tom Brokaw and Chris Matthews.[1]

Norm Ornstein
Jeffrey Sachs

Norm Ornstein:”Broken Government: Where Do We Go from Here?” (September 15). Ornstein is a Resident Scholar at the American Enterprise Institute for Public Policy Research in Washington, D.C. He is an election analyst for CBS News and writes a weekly column for Roll Call, the Capitol Hill newspaper. He also serves as co-director of the Transition to Governing Project that seeks to create a better climate for governing. A Minnesota native, he earned M.A. and Ph.D. degrees in political science from the University of Michigan.[2]

Jeffrey Sachs: “Reawakening American Virtue and Prosperity” (October 20). Sachs is Director of The Earth Institute and Professor of Health Policy and Management at Columbia University. As a leading economist, he advocates continuing economic development with environmental sustainability and mitigating human-induced climate change. His latest book is The Price of Civilization, a blueprint for America’s economic recovery. He holds B.A., M.A. and Ph.D. degrees from Harvard University.[3]

Tom Brokaw
Chris Matthews

Tom Brokaw: “The Time of Our Lives: Past, Present, Promise (November 8). Brokaw is a Peabody and Emmy Award-winning journalist. He served as anchor and managing editor of the NBC Nightly News from 1983 to 2005 and now is a special correspondent for the network. His latest book is The Time of Our Lives: Past, Present, Promise which examines changes in America’s life since the Great Depression of the 1930’s and a reflection on our future.[4]

Chris Matthews: “Jack Kennedy: Elusive Hero” (December 8). Matthews is a writer, political commentator and the host of the nightly MSNBC show “Hardball with Chris Matthews”and the weekly NBC panel discussion “The Chris Matthews Show.” Before entering journalism, he was on the staff of four members of Congress and former Speaker of the House Tip O’Neill and also served as a speechwriter for President Jimmy Carter. His latest book is Jack Kennedy: Elusive Hero.[5]

The Forum engages the public in reflection and dialogue on the key issues of our day from an ethical perspective. [6] The Forum is nonpartisan and nonsectarian. Forums are free and open to the public. They are held from noon to 1:00 p.m. (CT) at Westminster Presbyterian Church, Nicollet Mall and 12th Street, in downtown Minneapolis. Each forum is preceded by music at 11:30 a.m. A public reception and small group discussion follow the forum from 1:00 to 2:00 p.m. The Forum presentations also are broadcast on Minnesota Public Radio.


[1] Westminster Town Hall Forum, http://westminsterforum.org/ .

[2] AEI, Norman J. Ornstein, http://www.aei.org/scholar/48.

[3] Earth Institute, Prof. Jeffrey Sachs, Director, http://www.earth.columbia.edu/articles/view/1804.

[5]  Wikipedia, Chris Matthews, http://en.wikipedia.org/wiki/Chris_Matthews.

[6] See Post: Westminster Town Hall Forum (July 25, 2011); Post: Westminster Town Hall Forum: Krista Tippett (July 26, 2011); Post: Westminster Town Hall Forum Marcus Borg (July 27, 2011).

Ted Turner’s Superstation in the Crosshairs

Ted Turner

In 1969 Ted Turner, the now famous media mogul, bought a defunct Atlanta UHF (Ultra High Frequency) television station and put it back on the air as WTCG. As an over-the-air station, it also was microwave-linked to many cable companies in the Southeastern U.S. In December 1976, however, Turner through his company (Turner Broadcasting System, Inc.) decided to offer his station nationwide via satellite to all cable companies. By 1978 it was on cable systems in all 50 states and became known as a “superstation.”[1]

The company that carried the station’s signal to the satellite was Southern Satellite Systems, Inc.  under a license from the Federal Communications Commission (FCC). Initially Southern Satellite received the signal over the air by a UHF receiving antenna and then retransmitted it to a satellite transponder leased from RCA. The satellite transponder in turn relayed the signal down to cable systems’ receiving antennae on earth, and those systems retransmitted the signal by wire to cable customers.

In March 1979, pursuant to FCC permission, Southern Satellite began to receive the WTBS signal by direct microwave connection, instead of off the air except when the former was not operating. Under this approach, WTBS was able to send local commercials over the air in Atlanta and national commercials via the microwave connection to Southern Satellite.

WTBS’ programming included old movies like the classic “Casablanca” with Humphrey Bogart and Ingrid Bergman and old syndicated television programs like “The Bob Newhart Show” and “I Dream of Jennie,” under licensing agreements, exclusive to the Atlanta area, with the owners of the copyrights.

This “superstation” operation was challenged by Hubbard Broadcasting, Inc., a Minnesota corporation headquartered in Minneapolis. It owned television broadcast stations in Minneapolis/St. Paul, Tampa/St. Petersburg, Florida and Albuquerque, New Mexico that had exclusive copyright licenses for “Casablanca,” “The Bob Newhart Show” and “I Dream of Jennie.” All three of these Hubbard stations were in areas reached by the satellite-carried signal of WTBS.

The case, which was filed in Minnesota’s federal court,[2] alleged that Southern Satellite and Turner Broadcasting had violated the copyrights on these programs that had been licensed to Hubbard. The key issue for these claims was whether Southern Satellite qualified for the common carrier exemption in section 111 of the Copyright Act of 1976. This exemption existed for carriers that acted merely as a conduit between the distant broadcast station and the interested cable systems. I served as the principal lawyer for Southern Satellite in this case.

The Minnesota district court eventually concluded that Southern Satellite did qualify for this exemption and, therefore, granted its motion for summary judgment without a trial. The appellate court affirmed this decision.[3]

During the pre-trial discovery phase of the case, Hubbard’s attorneys took the deposition of Ted Turner in Atlanta. This was during the 1982 NFL players’ strike when Turner Broadcasting joined others in arranging games by substitute players. These substitute games were not well attended or watched on tv on the first weekend, and Turner was busy at his company making arrangements for the second weekend of such games.[4] At his request because of the press of business, his deposition was held at his company’s headquarters.

His regular outside counsel in Atlanta told me before the deposition that Turner was a tobacco chewer, and some of his depositions in other cases were shorter than anticipated because the female lawyers asking the questions were grossed out by his tobacco chewing and spitting his expectorate into a paper cup during the deposition. (This, however, was not a problem for Hubbard’s attorney.)

Ted Turner sailing

After the deposition, I joined Turner and his lawyer in Ted’s office to review the just completed deposition. I noticed the many sailing trophies in the room. (In 1977 he was the captain of the yacht that won the America’s Cup, was Yachtsman of the Year four times and recently was elected to the National Sailing Hall of Fame.[5])

This obviously was a very important case for both sides and was vigorously contested at the trial court, court of appeals and Supreme Court levels. Throughout it all, however, I had a thoroughly professional relationship with Hubbard’s attorneys, Sidney Barrows, Byron Starns and Patricia Schaffer of the Minneapolis firm of Leonard Street and Deinard. As noted elsewhere, unfortunately this was not always true in my career of lawyering.[6]

I, therefore, came to believe that is was important for attorneys publicly to acknowledge when lawyers live up to the best of the profession. Accordingly at the conclusion of this case’s hearing on cross motions for summary judgment at the district court, I told the court, “I would like to express my appreciation to Sidney Barrows and to Byron Starns and their law firm as well as John McDonough [Hubbard’s in-house lawyer]. This has been a lawsuit in which the adversaries have dealt very harshly with one another in terms of the legal issues, but in terms of professional relationships it has been great. I appreciate that.” Mr. Barrows responded, “It is in line with what Your Honor said in another argument about our being a noble profession.” The Judge said, “I sense that too and I appreciate it.”[7]


[1] Wikipedia, TBS (TV channel), http://en.wikipedia.org/wiki/TBS_(TV_channel); Wikipedia, Ted Turner, http://en.wikipedia.org/wiki/Ted_Turner; Ted Turner Enterprises, http://www.tedturner.com/home.asp. In 1979 Turner renamed the station “WTBS” and branded it “Super Station WTBS,” and in 1981 he developed an electronic system to feed local ads over-the-air in Atlanta and national ads via satellite. There were other subsequent name changes. In 1987 it became “Super Station TBS;” in 1989, “TBS Superstation;” and in 1990, just “TBS.”

[2] Post: Minnesota’s Federal Court (June 28, 2011).

[3] Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., 593 F. Supp. 808 (D. Minn. 2004), aff’d, 777 F.2d 393 (8th Cir. 1985), cert. denied, 107 S. Ct. 643 (1986), reh’g denied, 107 S. Ct. 964 (1987).

[4]  Farnsworth, NFL crossed the line on Replacement Sunday, Seattle Post-Intelligencer (Oct. 2, 1982), http://www.seattlepi.com/news/article/NFL-crossed-the-line-on-Replacement-Sunday-1097669.php.

[5] ajc, Turner in sailing hall (Aug. 2, 2011), http://www.ajc.com/news/ted-turner-in-sailing-1069456.html.

[6] Post: Ruminations on Lawyering (April 20, 2011).

[7] Transcript of Hearing, Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., No. 3-81-Civil-330 (D. Minn. June 21, 1984.)

U.S. Litigation over a Russian Real Estate Project

Moscow, Russia

After the collapse of the Soviet Union in 1989, many U.S. businesses sought new opportunities in Russia.

One was Ellerbe Becket Construction Services, Inc. (Ellerbe), a Minneapolis-based firm that offered architectural, engineering and construction management services. To assist them in this effort, it hired Nicholas Loukianoff, a Russian-American citizen who was bilingual in English and Russian.

One of the potential projects for Ellerbe was a Korea-Russia Trade Center in Moscow, and Ellerbe asked Loukianoff to help find a site in Moscow for such a building. However, the potential Korean client decided not to proceed, and the building was not built.

Nevertheless, Mr. Loukianoff’s company sued Ellerbe in federal court in San Francisco, California for damages under various legal theories. I was the principal lawyer for Ellerbe in this case.

During the pre-trial discovery, I took the deposition of Mr. Loukianoff’s expert witness, a newly minted Russian real estate agent. I did so by telephone from my office in Minneapolis to Ellerbe’s Moscow office with the English-Russian interpreter in Moscow. During the course of my examination, I asked him something like, “Private real estate transactions in Russia have only been happening in the last several years, right?” He did not agree with that statement and mentioned Russia’s sale of Alaska to the U.S. in 1867. That comment still makes me chuckle.

Several weeks before the trial was scheduled to start in January 1999, the court granted Ellerbe’s motion for summary judgment on three of plaintiff’s claims. Thus, the only claims left for trial were breach of contract and quantum meruit (reasonable value of services).[1]

At the start of the trial, the court granted other Ellerbe motions to exclude certain plaintiff’s evidence at trial, including a new damage theory (1% of the total built-out cost of the Center that was never built).[2] As a result, the potential value of plaintiff’s case collapsed, and the case immediately settled with a very modest payment by Ellerbe.

I still wish that I had obtained a trip to Moscow for this case.


[1] Memorandum Decision & Order, NAL Associates, Inc. v. Ellerbe Becket Construction Services, Inc., No. C-97-0997 (N.D. Cal. Jan. 8, 1999).

[2] Order , NAL Associates, Inc. v. Ellerbe Becket Construction Services, Inc., No. C-97-0997 (N.D. Cal. Jan. 26, 1999).

Dysfunctional U.S. Congress Averts Default

The good news: the U.S. Congress and the President, at the last moment, were able to come to an agreement on increasing the U.S. Government’s debt limit and thereby avert a default on the government’s securities.

More good news: military spending is specifically included for possible reduction, rather than leaving all the cuts to discretionary spending for the benefits of our citizens.

The bad news: the Congress demonstrated its functionality in reaching this agreement. The rest of the world has looked in disbelief at the congressional spectacle and has less confidence in our political system and leaders.[1]

More bad news: the agreement calls for cuts in discretionary government spending when our economy is sputtering. Keynesian economics suggests the need for the federal government to run deficits during economic recessions.[2]

More bad news: the agreement means that much attention will continue to be spent on deficit reduction, rather than improving our deteriorated infrastructure and frayed social safety net.

The public is disgusted at the recent spectacle in the Congress and eager to blame all who were involved. Democrats, in my opinion, although not blameless, need to focus attention on the destructive role played by the Tea Party in the House of Representatives and to seek their defeat in the 2012 election.[3]


[1] See Post: Disgusting U.S. Political Scene (July 23, 2011); Post: The Founder of Modern Conservatism’s Perspective on the Current U.S. Political Turmoil (July 28, 2011); Post: Dysfunctional U.S. Congress Careens Towards U.S. Default (July 30, 2011).

[2] Krugman, The President Surrenders, N.Y. Times (July 31, 2011).

[3] Krugman, The Centrist Cop-Out, N.Y. Times (July 28, 2011).

The Lutheran Pastor at the 1973 Siege of Wounded Knee

Wounded Knee, SD, 1973
Wounded Knee, SD, 1973

In February 1973, leaders and members of the American Indian Movement (AIM) and others occupied the town of Wounded Knee, South Dakota to protest the administration of a tribal chairman and the alleged U.S. failure to honor its treaties with the American Indian nations. They controlled the town for 71 days while U.S. government law enforcement, including FBI agents, surrounded the town. The two sides exchanged gunfire daily, and people on both sides were killed.[1]

In May 1973, AIM leaders invited Rev. Paul Boe of the American Lutheran Church (ALC) to visit them at Wounded Knee for religious counseling.[2] Boe had an established relationship with them as a result of the ALC’s ministry to American Indians under his leadership. Indeed, AIM had been formed with ALC financial assistance at Rev. Boe’s urging; he then was the Executive Director of its Division of Social Services.[3]

Thereafter a South Dakota grand jury conducted an investigation as to what happened during the siege. Rev. Boe was subpoenaed by the grand jury. He was not asked to divulge any confessions he received at Wounded Knee, but he was asked about what he saw. He answered those questions he deemed did not violate any confidences. But he refused to answer questions as to whom he saw carrying guns on the ground that it would require him to betray confidential communications.[4]

As a result, the federal district court held Rev. Boe in civil contempt of court and ordered him to be confined in jail until he decided to answer the questions. The latter order was stayed or postponed while he appealed the contempt finding to the U.S. Court of Appeals for the Eighth Circuit.[5]

This is where I entered the drama with David E. Engdahl[6] as the lawyers to prepare an amici curiae (friends of the court) brief supporting Rev. Boe’s appeal of the contempt citation. The 11 amici were the ALC, the National Council of Churches of Christ in the U.S.A., the United States Catholic Conference, the Lutheran Church in America, the United Presbyterian Church in the U.S.A., the Right Rev. John E. Hines (Presiding Bishop of the Episcopal Church), the Center for Social Action of the United Church of Christ, the Board of Church and Society of the United Methodist Church, Msgr. John Egan (Executive Director of the Catholic Committee on Urban Ministry), the Department of Church and Society of the Division of Homeland Ministries of The Christian Church (Disciples of Christ) and the Lutheran Church-Missouri Synod.[7]

The Amici Brief asserted two arguments. First, the U.S. Constitution’s First Amendment religion clauses fobid compelling a clergyman to answer questions concerning communications and incident observations which his church requires him to keep confidential. Second, a clergyman has a federal common law privilege to refuse to disclose to a federal grand jury his confidential professional communications with his others and his observations incident thereto.[8]

On January 16, 1974, the Eighth Circuit reversed the judgment of contempt on the ground that Rev. Boe was denied due process requirements of notice and a meaningful opportunity to present his defense. The court said nothing about the issues raised by the amici curiae.[9]

Afterward two AIM leaders, Dennis Banks and Russell Means, were indicted on charges related to the events, but their 1974 case was dismissed by the federal court for prosecutorial misconduct, a decision upheld on appeal.[10]


[1] Wikipedia, Wounded Knee Incident, http://en.wikipedia.org/wiki/Wounded_Knee_incident.

[2] Reverend Boe (1915-1990) was a social activist who was instrumental in opening discussion about Native American issues in the ALC and with the American public. Boe’s position regarding AIM made him an unpopular figure in the ALC, and he resigned from the church in 1974 and traveled the country with his “Why Wounded Knee?” lecture series. (Center for Western Studies, Paul Boe Collection, http://www.augie.edu/cws/PaulBoespeech.html.

[3] Brief of the ALC, et al., Amici Curiae at 14-15, U.S. v. Boe (8th Cir. Jan. 9, 1974)[“Amici Brief”].

[4] Kelley, Tell All or Go to Jail: A Dilemma for the Clergy, Christian Century at 96 (Jan. 30, 1974).

[5] Id.

[6] At the time Mr. Engdahl was a professor at the University of Colorado Law School. Now he is a professor at Seattle University School of Law. (Seattle Univ. School of Law, David Engdahl, http://www.law.seattleu.edu/Faculty/Faculty_Profiles/David_Engdahl.xml.)

[7]  Amici Brief.

[8] Id. at 10-38.

[9] U.S. v. Boe, 491 F.2d 970 (8th Cir. 1974).

[10] Wikipedia, Wounded Knee Incident, http://en.wikipedia.org/wiki/Wounded_Knee_incident.