Faegre & Benson – dwkcommentaries

Litigation Over an Early Compact Fluorescent Lamp

In 1988 the Faegre & Benson law firm of Minneapolis was retained to defend the Phillips Lighting Company [1] in a civil lawsuit brought in U.S. District Court for the District of Minnesota, and I was assigned as the lead attorney for the case.[2]

The plaintiff was Ibac Industries, Inc. of Princeton, Minnesota, a small town about 50 miles north of Minneapolis. It had been working at manufacturing a plastic cover for an early Compact Fluorescent Lamp (CFL) designed by Phillips.[3]

The complaint asserted claims for alleged breach of a joint venture agreement; violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), which if successful entitled the plaintiff to treble the amount of actual damages plus attorneys’ fees; fraud; negligent misrepresentation; and four other theories. I do not recall what the alleged damages were except that they were significant.

Before trial on behalf of Phillips I successfully moved to dismiss the RICO and joint venture claims for failure to state a claim on which relief could be granted and for summary judgment on another claim. I also was successful in resisting the plaintiff’s motion for leave to amend the complaint to add a claim for punitive damages.

As a result, we went to trial in December 1989 on the fraud, negligent misrepresentation and three other claims. At the end of the evidence, the court granted Philips’ motion for directed verdict on the three other claims, leaving only two for the jury to decide.

The jury returned a special verdict for Phillips on the fraud claim. Thus, the only remaining claim for resolution by the jury’s special verdict was negligent misrepresentation.

Under the Minnesota common law of negligent misrepresentation, at the time, as I recall, a person who, through his or her profession, business, or employment, or in any transaction in which he or she has a pecuniary interest, fails to exercise reasonable care or competence in obtaining or communicating information and thereby supplies false information while guiding others in their business transactions, is liable for any pecuniary loss caused by the claimant’s justifiable reliance on the information. However, such a claim is subject to the comparative fault doctrine, whereby the plaintiff can recover only the percentage of fault attributable to the defendant, and if the plaintiff’s fault exceeds the defendant’s, the plaintiff can recover nothing.

To prevail on a negligent misrepresentation claim under Minnesota law at the time, as I recall, a plaintiff must establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant supplied false information to the plaintiff; (3) the plaintiff justifiably relied upon the information; and (4) the defendant failed to exercise reasonable care in communicating the information; and (5) damages.

Even though, as I recall, Phillips contested all of these elements, the jury’s special verdict found such negligent misrepresentation and assigned slightly greater responsibility to Phillips (something like 60%) than to Ibac (something like 40%). This was good news for Phillips in that Ibac’s recovery of its damages would be reduced by the percentage of responsibility assigned to Ibac. This was bad news for Phillips, on the other hand, in that Ibac was not shut out from recovering anything. At the time I was disappointed after coming so close to “zeroing out” the plaintiff.

The trail was bifurcated between liability and damages, and after the above jury determinations on liability and before a trial before the same jury on damages, there was a settlement in January 1990 with Phillips paying Ibac a sum of money, the amount of which I do not recall.

The bifurcation of the trial provides insights about the life of the litigator/trial lawyer and being subject to the demands or whims of the court.

As I recall, U.S. Senior District Court Judge Edward J. Devitt, the presiding judge,[4] called a pretrial conference in early December 1989 and much to my surprise and consternation and without any prior notice, set the trial to commence just before Christmas, only a few weeks away. Perhaps this was the Judge’s stratagem to try to force a settlement because of all the difficulties this short notice would present to the parties and their attorneys.

Unfortunately my wife and I already had paid for a vacation to Costa Rica for later that month. When I objected to this date for the trial on that basis and on the difficulties of having my client’s witnesses come from Boston on short notice during the holiday season, Judge Devitt accommodated me by bifurcating the trial between liability and damages and only conducting the liability trial before I was scheduled to go on vacation.

While I was in Costa Rica, I received news from my law firm that the plaintiff was increasing its alleged damages. This forced me to leave Costa Rica early when I was not feeling well. I well remember leaving La Selva Research Station in the rain forest where we were staying to catch a local bus on a country road for a long ride to the capital city of San Jose. When the bus came over the mountain, I saw the widespread lights of the city looking as large as Los Angeles. That really impressed upon me the lure of cities across the world to people living in the countryside.

The opposing counsel for Ibac was Mark N. Stageberg, an able, very experienced civil trial lawyer. He discusses this very case, I assume based on recollection, in his memoir, Win Some Lose Some: The Trials and Tribulations of a Trail Lawyer (pp. 94-96). [5]

I have no disagreements with what Stageberg said about this case, except for the following:

First, he did not mention his losses on the previously mentioned pretrial motions that significantly reduced the potential of his case.
Second, he says his client had “developed and sold a new prototype fluorescent lightbulb to . . . Phillips.” According to my firm recollection, that is absolutely erroneous because the bulb, to my recollection, was designed by Phillips, especially its crucial electronics parts, and Ibac was only retained to manufacture the plastic cover according to Phillips’ specifications
Third, I do not recall Stageberg’s account of the so-called “smoking gun” document from Phillips’ files, and I certainly do not believe that this document or any other evidence proved that the Phillips’ witnesses were lying, as Stageberg claims. Indeed, the jury’s rejection of the fraud claim undercuts Stageberg’s interpretation or recollection of this point.
Fourth, contrary to what Stageberg said, the jury did not determine that Phillips had “breached its contract and had committed fraudulent misrepresentations” with Ibac. As previously stated, the breach of contract claim was dismissed on motion or on directed verdict, and the jury determined that there was no fraudulent misrepresentation.
Fifth, we will never know that would have happened if Ibac had started the whole process with a more reasonable demand.

Nevertheless, I have to admit that after all of the skirmishing, his client walked away with a substantial settlement amount (minus attorneys’ contingent fee).

I also note that Stageberg expressed his consternation in another case when he was subjected to a trial court’s unexpectedly setting a trial date that interfered with his plans to do other things. (Win Some Lose Some at 189-192).

————————————-

[1] Phillips was part of Koninklijke Philips N.V. (Royal Philips, commonly known as Philips), a Dutch diversified technology company headquartered in Amstrerdam and one of the largest companies in the world.

[2] This post is based upon my personal recollection and on my December 1989 and 1990 descriptions of the status of this case in my annual reports to the partner in charge of my group at Faegre & Benson, which I am confident accurately reflected what had happened in the case. I do not have any documents from the case. I am confident that Faegre’s files for a 24-year-old closed case were destroyed a long time ago under regular document-retention guidelines. Finally the court’s files for the case (# 3:88cv-00482-EJD) have been sent to storage in a remote federal facility.

[3] In 1980 Phillips introduced its model SL, which was a screw-in lamp with integral magnetic ballast. The lamp used a folded T4 tube, stable tri-color phosphors, and a mercury amalgam. This was the first successful screw-in replacement for an incandescent lamp. All of this, as I recall, was before any involvement of Ibac with respect to the plastic cover.

[4] In 1989 Judge Devitt at age 78 was a very eminent federal jurist. He had served as one of Minnesota’s federal District Judges, 1954-1958, as its Chief Judge, 1959-1981, and as one of its Senior Judges since 1982. He continued in that capacity until his death in 1992. Before his federal judicial career, he served one term in the U.S. House of Representatives.

[5] I plan to write a general review of the memoir after I finish reading it.

Gratitude I

It is so easy to credit all of your successes to your own talents and hard work. I know that I too often do that.

Lately, however, I am pausing to acknowledge the many blessings in my life.

My mother and father, Marian Frances Brown and Ward Glenn Krohnke, were directly responsible for endowing me with good genes. They also were loving and nurturing, especially in my early years, and supporting my many activities through college and beyond. Although of modest financial circumstances, my parents were able to afford many of the creature comforts of American middle class life as I was growing up. I did not have to work to provide financial support for the family although in junior and senior high school I had part-time jobs to earn spending money and saving for college. My parents and I were in good health as I grew up with no major illnesses or accidents. I am grateful.

The public schools in my small Iowa home town of Perry did not provide many of the curricular and extra-curricular activities of private schools or large, prosperous suburban school districts in the rest of the country. Yet I had many excellent teachers who did not let me coast through school. The teacher I remember most fondly for this nurturing and challenging was Emma Hepker, who taught speech and English Literature. I also participated in speech contests, football, baseball, track and concert and marching band playing the e-flat alto saxophone. I often focused on the limitations of growing up in this small town far away from where things were really happening. But I can now see that there were benefits from this protective environment. I am grateful.

Grinnell College, the next stop on my educational journey, was challenging and enriching. My major was history with a lot of political science and economics. The professors were excellent, especially Joe Wall, Alan Jones, Samuel Barron, Richard Westfall and George Drake in history, Harold Fletcher in political science and Philip Thomas and John Dawson in economics. As a student at a small college I had the opportunity to participate in many activities, including intercollegiate baseball and football and student government. I am grateful.

In the midst of my Grinnell experience, I had one semester at American University on the Washington Semester Program. The focus was seminars and meetings with politicians, government officials and others as we learned about American government in our nation’s capitol. Professor Louis Loeb was the excellent leader of our group. Each of us also did independent research for a paper. My topic was the participation of political interest groups in the U.S. Supreme Court’s consideration of contempt of Congress cases, mostly coming from the House Un-American Activities Committee, which I thought itself was un-American. I spent a lot of time in the Supreme Court Library reading briefs of the parties and of amici curiae (friends of the court), usually the American Civil Liberties Union and the American Association of University Professors, and then comparing their arguments with the Court’s decisions. This was also the first time I had lived in a major city, and I thoroughly enjoyed its many cultural attraction. I am grateful.

After Grinnell, I had the tremendous privilege and honor of being a student for two years at the University of Oxford. There I studied or, as they say, “read” Philosophy, Politics and Economics. During the three eight-week terms of the academic year, each week I read suggested readings on two topics or issues and prepared essays for two tutorials, usually by myself, but sometimes with one other student. The tutors, especially John Sargent and Roger Opie in economics and Michael Hinton in philosophy, were warm and encouraging while pressing me onward. During the terms you could also attend university-wide lectures in the subjects while over the vacations or “vacs” you were expected to continue your readings in the three fields. At the end of my two years, I had university-wide examinations or “Schools” as they were given in a building called “The Examination Schools.” There were six required examinations (two each in the three disciplines) plus two optional subjects (mine were public finance and currency and credit). Each examination was three hours long, and you had to answer four questions from a printed list of about 12 questions. Your answers were then read and graded by a university-wide committee, and your overall grade or results were posted on the Oxford bulletin boards and published in the London Times. I am grateful.

I then returned to the U.S. for three years at the University of Chicago Law School. Whereas there was great student independence at Oxford, Chicago like most law schools had large classes with daily assignments, usually with professors grilling the students with questions about the cases or statutes we were studying. At the end of the semester there was the familiar practice of the course’s professor giving the final examinations. There were great professors at Chicago: Harry Kalven, Walter Blum, Francis Allen, David Currie, Philip Kurland, Phil Neal, Bernard Meltzer, Soia Mentschikoff and Kenneth Dam to name a few. I am grateful.

In 1966 I commenced practicing law with the Wall Street firm of Cravath, Swaine & Moore, probably the preeminent law firm in New York City. In my four years there as a junior associate, I worked on many interesting cases, usually with the “grunt” work. The senior lawyers for whom I worked helped me to “learn the ropes” of practicing law. Jack Hupper and Tom Barr were the most significant in that regard. I am grateful.

In 1970 my family and I moved to Minneapolis where I commenced what turned out to be a 31-year career with the law firm of Faegre & Benson (now Faegre Baker Daniels). Here too I worked with excellent lawyers who helped me develop my legal skills. I think especially of John French, Norman Carpenter, Larry Brown and Jim Loken; Jim is now a Judge of the U. S. Court of Appeals for the Eighth Circuit. I am grateful.

After my retirement from Faegre in 2001, Professor David Weissbrodt at the University of Minnesota Law School asked me to help teach the international human rights course. I accepted the offer and did so for nine years (2002-10). I learned much more about this field of law and met many interesting students and faculty. I am grateful.

For all of these blessings, I give thanks to God and to those named and unnamed individuals who helped me along the way.

Intimations of Mortality

I am in excellent health. Like most people I try to take each day as it comes. Each day requires a “To Do” list and running around doing this and that. More of the same, day after day.

Recently, however, there have been reminders of human mortality, including my own.

Over the last several years four of my former law partners at Faegre & Benson (n/k/a Faegre Baker Daniels) have died as have four adult children from this larger group of colleagues. A good friend of mine from our church died last October, and my remarks at his memorial service were recently posted.

Last June was my Grinnell College class’ 50th reunion. As mentioned in an earlier post, I was the de facto obituary writer-in-chief for our reunion booklet. Of the 359 in our class, 53 were deceased. Since then three other classmates have died, one of whom was a friend. I have written their obituaries for our class letter.

For the asset side of my December 31st family financial statements, I calculate the present values of certain future income streams like Social Security benefits and a law firm pension. The first step in that calculation is looking at the Internal Revenue Service’s Life Expectancy Tables. For 12/31/11, these Tables said my life expectancy was 15.5 years or 186 months. (Statistically this is the median of the anticipated survival time of the entire cohort of people of a certain age or the time when 50% of the cohort will have died.)

All of this reminds me of Frank Sinatra singing September Song, “The days dwindle down to a precious few. One hasn’t got time for the waiting game.”

Memorial services for our departed friends and acquaintances should be times for us to pause and reflect on where we are in our own lives and what should be important for our remaining days or years. Be kind and loving to your family and friends and those people who will come into your life around the next bend in the road. It is not work harder or make more money, important as they may be.

The memorial service for one of my fellow retired law partners at Minneapolis’ Plymouth Congregational Church was especially touching and moving. In early adulthood he and his wife had three children. In mid-life he and his wife divorced after he recognized that he was gay. At the service the minister read a loving remembrance from his male life partner. The deceased’s younger brother made an emotional speech about how much his brother had meant to him. A fellow law firm partner talked about his excellence as a lawyer and leader of the firm as well as his personal concern for the welfare of his colleagues. Three of his grandchildren read the Scriptures. All aspects of his life were acknowledged and celebrated. As the newspaper obituary stated, he was “a devoted partner, loving husband, beloved father and grandfather, caring brother, delightful uncle, and cherished friend.” Sitting in the pew at the service, I gave thanks to God for the life of this amazing man and for this Christian church’s witness to the unbounded love of God for all human beings.

Intraocular Lenses Litigation

Posterior_PMMA_Intraocular_Lens — IOL example

Intraocular lenses or IOLs are artificial lenses implanted by ophthalmologists in the human eye to correct vision loss resulting from removal of the eye’s natural crystalline lens during cataract surgery. Since at the least the mid-1950’s, IOLs have been an acceptable mode of treatment.[1]

As of 1985 there were 17 to 20 manufacturers of IOLs with the six largest having over 80% of the market. One of the leading competitors was Surgidev Corporation of Goleta, California near Santa Barbara.[2]

In 1985 five key employees of Surgidev left the company and soon thereafter organized a new company, (Eye Technology, Inc. (ETI)), to manufacture IOLs and compete with Surgidev and other such manufacturers.

Litigation ensued. Surgidev sued its former employees and ETI in Minnesota’s federal court.[3] It asserted claims for unfair competition, misappropriation of trade secrets, breach of contract, breach of fiduciary duty, conversion and wrongful interference with contractual relations and prospective economic advantage.[4]

The defendants retained Faegre & Benson to defend the case, and I was in charge of the team at the law firm.

We answered the complaint by denying its material allegations and asserting counterclaims for alleged wrongful interference with ETI’s public offering of securities, abuse of process, malicious prosecution, and defamation. The district court granted Surgidev’s motion to dismiss the counterclaim for abuse of process, but otherwise denied the motion, holding that the counterclaims were not a “sham” and were protected by Noerr-Pennington privilege from tort liability for filing suit and the defamation claim was one for “slander per se” rather than “trade libel,” and thus, special damages did not have to be pled.[5]

The parties later returned to the district court for a combined hearing and trial on Surgidev’s motion for preliminary and permanent injunction. The court concluded that there was no breach of the former employees’ contractual non-compete and non-disclosure provisions. [6] But the court held that they had engaged in wrongful interference with certain Surgidev agreements and, therefore, enjoined them from attempting to solicit through December 31, 1986, any Surgidev employees from joining ETI, from having four named doctors doing any work for ETI and from soliciting certain Surgidev customers to become ETI customers.[7]

The granting of the injunction was affirmed by the appellate court.[8]

I have three extraneous memories from this case.

Some of the depositions were taken in Santa Barbara and San Diego, California, and I remember opposing counsel and I split the cost of a rental car to drive to San Diego. I was the driver, and it was a harrowing drive on a very dark and very rainy night on Interstate 5.

Boston was the location for other depositions. On a day off in the midst of a heavy snow storm I had lunch in a Russian restaurant near Harvard Square with a Grinnell College contemporary to talk about our mutual interest in El Salvador.

The last memory is lunch at a Minneapolis hotel with an ophthalmologist who was involved in the case and who, out of the blue, offered to perform laser surgery on my eyes to correct my nearsightedness. I declined the offer.

In 1998 ETI was merged into Star Tobacco and Pharmaceuticals Inc. which was focused on developing a new, “less-harmful” cigarette. Now known as Star Scientific, Inc., it still is pursuing this cigarette goal and apparently no longer manufactures IOLs.[9]

[1] Surgidev Corp. v. Eye Technology, Inc., 648 F. Supp. 661, 669 (D. MInn. 1986).

[2] Id. at 671-73.

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

[4] Surgidev Corp. v. Eye Technology, Inc., 625 F. Supp. 800, 801 (D. Minn. 1985).

[5] Id.

[6] Surgidev Corp. v. Eye Technology, Inc., 648 F. Supp. 661, 696-99 (D. MInn. 1986).

[7] Id. at 700-04.

[8] Surgidev Corp. v. Eye Technology, Inc., 828 F.2d 452 (8th Cir. 1987).

[9] Jones, Star Moves Toward Stock Market. Eye Technology Deal Prepares Petersburg Company To Go Public, Richmond Times-Dispatch (Feb. 10, 1998); Star Scientific, Corporate Policy Statement, http://www.starscientific.com/about-star/corporate-policy-statement.

The Flight Transportation Corporation Litigation

In June 1982, all kinds of litigation erupted in Minnesota’s federal court[1] involving Flight Transportation Corporation (FTC), a Minnesota-based company that purported to provide small-aircraft charter service.

The first case was by the U.S. Securities and Exchange Commission (SEC) against FTC, its subsidiaries, and its CEO and Chairman of the Board, William Rubin. The SEC alleged that the defendants had violated and aided and abetted violations of antifraud, reporting, and record-keeping provisions of the federal securities laws. The SEC sought an injunction prohibiting further violations by the defendants of these provisions, the appointment of a receiver to take possession of and marshal the assets of FTC and its subsidiaries, an accounting of all proceeds of FTC’s allegedly fraudulent securities offerings, and an order of disgorgement of all funds received by FTC as a result of those sales of securities. With respect to Rubin, the SEC sought a temporary freeze of most of his personal assets, an accounting of all funds received from FTC and its subsidiaries, and disgorgement of such funds.[2]

Shortly thereafter, two underwriters of FTC securities, on their own behalf and on behalf of all persons who purchased FTC’s securities in the June 1982 offerings, commenced a class action seeking, among other things, imposition of a constructive trust on the $22 million in proceeds of the offerings.

Thereafter other private lawsuits were also commenced against FTC, its officers and others, including its external auditor and the New York City law firm for the underwriters of the public offerings of FTC securities.[3]

Norwest Bank Minnesota (n/k/a Wells Fargo Bank Minnesota) had been providing working capital financing to FTC and brought a claim against FTC to collect that debt, and I was in charge of the Faegre & Benson team for Norwest. Later some of the other plaintiffs asserted claims against the Bank because its collateral review personnel had discovered certain problems at FTC; later the Bank reached a settlement over all of these claims.

Because there were so many different kinds of claims against FTC and others, the attorneys for the plaintiffs concluded that they needed to stop fighting among themselves and instead focus their collective efforts in prosecuting the claims against the defendants. As a result, the plaintiffs negotiated a complex Sharing Agreement whereby any monetary recoveries would be shared among the plaintiffs. This agreement was approved by the court.[4]

The SEC’s request for the appointment of a receiver was granted. A Minnesota attorney, Thomas Bartsch, was so appointed. I participated in many meetings with him and thought he was doing an excellent job. I, therefore, was shocked later when he was convicted of stealing money from the FTC assets under his control as receiver and then disbarred as an attorney.

At the conclusion of the private litigation, the district court awarded the various plaintiffs’ law firms $7.8 million of attorneys’ fees. The court recognized the superlative work of the lawyers that resulted in recovering $52 million for the various plaintiffs.[5]

I also was the attorney for Norwest Bank in a related case where a co-founder, outside director, shareholder and director of FTC sued the Bank for collecting and paying a check that allegedly had his forged endorsement. The district court entered judgment in favor of the Bank, and the appellate court affirmed.[6]

Finally there were criminal prosecutions of FTC’s principal officers: William Rubin, Janet Karki, Brian Miller and James McGovern. Rubin, the CEO and Chairman of the Board, was convicted on 10 counts of securities fraud and two counts of filing a false securities registration statement with the SEC and sentenced to 35 years in prison plus a $120,000 fine. There also were convictions on similar charges against Karki, the Chief Financial Officer (20 years in prison); Miller, the Financial Controller (three years); and McGovern, a Minnesota lawyer and FTC’s General Counsel (six years).[7]

I still find it difficult to believe that two fellow Minnesota lawyers with whom I had professional dealings ended up in prison as convicted felons.

Two memories of this case stand out.

At a posh Beverly Hills hotel, I participated in the deposition of Michael Milken from a FTC underwriter (Drexel Burnham Lambert). Known in the securities industry at the time as the King of Junk Bonds, Milken later pled guilty to securities fraud and tax violations and was sentenced to imprisonment. After release, he has concentrated his efforts on philanthropy, especially research regarding prostate cancer and melanoma. (Wikipedia, Michael Milken, http://en.wikipedia.org/wiki/Michael_Milken.)

I attended the criminal trial of Rubin and Karki. I was there as an attorney for a Norwest banker who was testifying about the Bank’s relationship with FTC. During her testimony two prominent Minnesota criminal defense attorneys, Ron Meshbesher[8] and Joe Friedberg, objected to the receipt into evidence of certain Bank documents because they were photocopies and thus not the best evidence. While the attorneys had a sidebar conference with the judge regarding this objection, I went to the U.S. Attorney’s table and whispered to an FBI agent that the originals were in my office and were destroyed in the Northwestern National Bank fire on Thanksgiving Day 1982. The FBI agent then went to the sidebar conference and relayed the information to the U.S. Attorney, Tom Hefflefinger.

The judge then asked me to leave the courtroom, presumably while foundation questions were asked of the banker. I assume her examination went something like this: “Do you know Mr. Krohnke? (Yes.) Was he involved in any way with the Bank and FTC? (Yes.) How was he involved? (He was an attorney for the Bank regarding litigation over FTC.) Did he have any original Bank documents in his office? (Yes.)”

I was then readmitted to the courtroom and put on the witness stand. The U.S. Attorney asked me a few questions along the same lines and established that the original documents in question were destroyed in the fire. There was no cross-examination by Meshbesher or Friedberg. The photocopies of the Bank documents were received into evidence.

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

[2] SEC v. Flight Transportation Corp., 699 F.2d 943 (8thCir. 1983).

[3] Id.; In re Flight Transportation Securities Litigation, 593 F. Supp. 612 (D. Minn. 1984).

[4] In re Flight Transportation Securities Litigation, 730 F.2d 1128 (8th Cir. 1984), cert. denied sub nom. Reavis & McGrath v. Antinore, 469 U.S. 1207 (1985); In re Flight Transportation Securities Litigation, 794 F.2d 318 (8th Cir.), cert. denied sub nom. Subclass IV v. Fox & Co., 481 U.S. 1013 (1987).

[5] In re Flight Transportation Securities Litigation, 685 F. Supp. 1092 (D. Minn. 1987).

[6] Lund v. Norwest Bank, 669 F. Supp. 284 (D. Minn. 1985), aff’d, 825 F.2d 1249 (8th Cir. 1987), cert. denied, 485 U.S. 936 (1988).

[7] U.S. v. Rubin, 836 F.2d 1096 (8th Cir. 1988); U.S. V. McGovern, 822 F.2d 739 (8th Cir.), cert. denied, 484 U.S. 956 (1987). I knew McGovern; he was one of the attorneys for the Wisconsin breeders cooperative in a lawsuit in which I was an attorney on the other side of the case. (See Post: The Artificial Insemination of Cattle (Aug. 16, 2011).

[8] I once had a civil case in which Meshbesher was the opposing lawyer, and the case settled soon after I took his client’s deposition. The recent movie, A Serious Man, by Joel and Ethan Coen, takes place in the Minneapolis area. When a character needs a criminal defense lawyer, he is told to hire Ron Meshbesher. The line was inspired by the Coen brothers’ memories of growing up in St. Louis Park, Minnesota and seeing attorney ads for Meshbesher. (Wurzer, Twin Cities lawyer is a Coen brothers punch line, MPR News (Oct. 9, 2009), http://minnesota.publicradio.org/display/web/2009/10/07/meshbesher.)

International Commercial Dispute Resolution

As previously noted, I have a strong professional preference for mediation and arbitration as methods for resolving disputes between manufacturers and distributors or dealers.[1] This assumes that the parties have tried and failed to resolve their disputes through direct negotiation, which is the least expensive and least time-consuming method and which enhances the possibility of amiable future relationships.

The reasons for preferring negotiation, mediation and arbitration hold as well for commercial disputes between entities in different countries.

Mediation (or conciliation as it is called in the international arena) where a neutral third-party assists the disputants in trying to settle their disputes is the first option after negotiation. 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.[2]

Only if mediation (or conciliation) 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 court and because the parties participated in selecting the arbitrator who was seen as a safer decider than an unknown judge or jury. On the other hand, the costs of international arbitration are significant, especially with three arbitrators from different countries and international travel.[3]

Moreover, there are additional reasons why arbitration is a preferred method for international commercial dispute resolution. First, there is fear of prejudice against the foreigner by a court or jury of another country. But such fear is less with an arbitrator or arbitrators that the sides help to choose. Second, there is a multilateral treaty that makes arbitration awards (the final decision in an arbitration) easier to enforce in other countries.[4] In contrast, it is more difficult to enforce one country’s courts’ final judgments in other countries. This is very important. For example, an arbitration award or a court judgment might hold the defending corporation (the respondent or defendant) liable to the complaining corporation (claimant or plaintiff) for $1 million for breach of contract, and most of the respondent or defendant’s assets might be in a different country than where the arbitration or litigation took place.

At Faegre & Benson, I frequently drafted dispute resolution provisions for international contracts prepared by other lawyers in the firm. In addition, I was counsel for two foreign companies in international arbitration proceedings under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).[5] Each of these cases illustrated interesting facets of such proceedings.

Turkish distributor vs. U.S. (Minnesota) manufacturer.

In the first case, I represented the Turkish terminated distributor of medical devices that were manufactured by a Minnesota company. Their written agreement, written by Minnesota lawyers, called for Minnesota law as the governing law and arbitration in Minnesota under the UNCITRAL Arbitration Rules with three arbitrators and with English as the language of the arbitration.

Under Article 5 of the UNCITRAL Rules there are three arbitrators unless the parties agree to have only one arbitrator. When there are three arbitrators, the claimant (here, the Turkish company) selects the first arbitrator; the respondent (here, the Minnesota company) picks the second; and then these two arbitrators select the third and presiding arbitrator. Although the first two arbitrators are selected by the two parties, the arbitrators are to be independent, not representatives or advocates for the parties that selected them.

My Turkish client and I thus had to go first in selecting an arbitrator. My ideal candidate was a Minnesota lawyer from Turkey who was bilingual in English and Turkish and who knew Turkish business customs and circumstances, but not surprisingly I could not find such a person. I then called the Turkish consulate in Chicago and Embassy in Washington, D.C. for recommendations for such an arbitrator. I eventually found a U.S. (and Turkish) lawyer in New York City who was born in Turkey, who was bilingual and who knew its business customs and circumstances, and the Turkish company appointed him as arbitrator. The Minnesota company then appointed a professor from a Minnesota law school as the second arbitrator. The two of them then appointed a retired chief justice of the Minnesota Supreme Court as the third and presiding arbitrator.

The hearings were held in a conference room of the Minneapolis office of the presiding arbitrator in the IDS Tower and lasted several days. The Minnesota company was represented by its in-house lawyer and two lawyers from its outside law firm while I was by myself for the Turkish company. (This was a role reversal for me.) The atmosphere was tense in the conference room. The husband of the couple who owned the Turkish company had been an arbitrator in his own country where things were handled much differently, and yet he enjoyed the battle in the Minneapolis conference room. His wife who was also involved in the business and was a witness, however, was appalled by the hostile questioning of the other side’s lawyer.

Several weeks after the hearing, I received in the mail the two-page award of the arbitrators requiring the manufacturer to pay a sum of money to the Turkish company. Thereafter the money was paid, and the case was over. My client and I were very pleased.

Under Article 32(3) of the UNCITRAL Arbitration Rules, the arbitrators are required to provide a statement of the reasons for their award unless the parties waive this requirement. In this case, the requirement was waived because a relatively small amount money was claimed and because both sides wanted to avoid the expense of paying for the time of the arbitrators to prepare such a statement of reasons.

U.S. (Minnesota) Buyer vs. Asian manufacturer

In the second case, I was counsel for an Asian manufacturer responding to an arbitration claim for over $26 million for breach of contract and other alleged wrongs. The contract at issue had been prepared by a non-lawyer employee of a Minneapolis foreign-trade consulting firm. It had what I regarded as a very inartful arbitration provision. It called for arbitration under the rules of “the United Nations Uniform Commercial Codes,” which do not exist. Nor did it specify where the arbitration should be held or the number of arbitrators or the language of the arbitration.

The Minnesota company first suggested there be only one arbitrator and that a specified retired Minnesota state trial court judge be that sole arbitrator. Although I had experience before that individual when he was a judge and had full confidence in his ability to be a fair arbitrator in this case, my Asian client did not want to have the case decided by one person from Minnesota. Therefore, I told opposing counsel that we did not agree to only one arbitrator.

Nothing more was heard from opposing counsel, and I thought the case had died on the vine. I was greatly surprised, therefore, when I received a letter from the Permanent Court of Arbitration at The Hague, Netherlands. The letter said that under Article 7 (2)(b) of the UNCITRAL Arbitration Rules, it was the designating authority for appointment of arbitrators when a party defaults in so doing and that the Asian company had defaulted in appointing the second arbitrator. In response, I recited the above history and stated that the Minnesota company had never appointed the first arbitrator and that, therefore, the Asian company had not defaulted. An official at the Permanent Court said I should tell that to the person it was designating as the appointing authority, a barrister in Melbourne, Australia. I reiterated my argument to the barrister to no avail when he appointed the head of an Asian international arbitration center and a former attorney general of that country as the second arbitrator.

Thereafter, these two arbitrators appointed a Danish lawyer from Copenhagen with extensive experience in international commercial arbitration as the third and presiding arbitrator.

On behalf of the Asian company, I filed a motion to dismiss the arbitration as it had never agreed to arbitration under the UNCITRAL Arbitration Rules, and the panel set a hearing in Minneapolis on this motion. Several weeks before the hearing, I was startled to receive a letter announcing the resignation of the second arbitrator (the Asian lawyer). My Asian co-counsel and I then immediately appointed a Queen’s Counsel barrister from London as the second arbitrator. (Later I found out that the Asian arbitrator had resigned because his fellow arbitrators refused to authorize him to fly first class (at substantial expense) to Minneapolis for the hearing.)

The hearing on the dismissal motion was held in Minneapolis, and the panel denied the motion. They did so even though their decision recognized that the “United Nations Uniform Commercial Codes” did not exist and under a strict interpretation, the arbitration clause had no effect. Nevertheless, the order concluded that the clause must be understood as referring to the UNCITRAL Arbitration Rules.

At the same time we also had a dispute as to the venue (or “seat”) of the arbitration due to the inartful arbitration clause’s not specifying such; my side argued for Hong Kong; the other side, London; and the arbitrators decided on London. The arbitrators also decided that the language of the arbitration would be English, which was not specified in the clause, but all agreed to English.)

In U.S. trials and arbitrations, witnesses are cross-examined on inconsistencies, real or apparent, between their testimony at the trial or hearing and prior testimony or statements. However, in this arbitration, the panel told the attorneys it was “not necessary during examination or cross-examination of witnesses for them to examine the witnesses on matters already in the written materials.” This was a surprise for me and a problem in preparing good cross-examination questions.

In the Fall of 1997, the hearings on the merits (or the trial) were held in three different cities. Minneapolis was first for the testimony of certain witnesses. I then flew to the Asian city where my client was located for hearings for the testimony of other witnesses. I then returned to Minneapolis for a brief stay, and then it was on to London.

London was the city for closing arguments. They were held in a conference room of an arbitration center in “legal London,” on the Strand near the Law Courts and the Inns of Court. The attorneys for the Minnesota company went first. Then my Asian co-counsel and I made our arguments.

I prepared for the closing arguments in Faegre & Benson’s London office, which is just several blocks from St. Paul’s Cathedral. Working on a Sunday morning, I could hear the pealing of the Cathedral’s bells and wished that I were in the church, rather than in the office.

Approximately four months later I received the 27-page Award that dismissed all of Claimant’s claims and all of my client’s counterclaims. One of the key points was the conclusion that the Claimant’s predecessor-in-interest and assignor had waived all claims for breach of contract and that its conduct did not fall within the wording of a non-waiver clause in the contract.

Thereafter Claimant submitted a motion for correction and interpretation of that key point, which my client resisted. On the basis of the papers the panel decided, 2 to 1, that there was no need for any interpretation or correction of the Award. At last, the case was over.

Not surprisingly this was not an inexpensive arbitration. In addition to the fees and expenses of each side’s attorneys, the bill of the three arbitrators for their fees and expenses was $302,000 to be split equally by the two parties.

[1] Post: Resolving Disputes between Manufacturers and Distributors/Dealers (Aug. 9, 2011).

[2] One example of rules for this method of dispute resolution is the UNCITRAL Conciliation Rules, which cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and role of conciliators and the general conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of evidence in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings while the conciliation is in progress. (UNCITRAL, 1980–UNCITRAL Conciliation Rules, http://www.uncitral.org.)

[3] Post: Resolving Disputes between Manufacturers and Distributors/Dealers (Aug. 9, 2011).

[4] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also called “the New York Convention” or treaty) now has 146 of the 192 U.N. member states as parties, including China, Korea, Japan, India, Indonesia and other major trading partners of the U.S. The treaty requires courts of contracting States to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and also to recognize and enforce arbitration awards made in other States, subject to specific limited exceptions. (UNCITRAL, 1958–Convention on the Recognition and Enforcement of Foreign Arbitral Awards, http://www.uncitral.org.)

[5] The UNCITRAL Arbitration Rules cover all aspects of the arbitral process, providing a model arbitration clause, setting out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings and establishing rules in relation to the form, effect and interpretation of the award. (UNCITRAL, 1976–UNCITRAL Arbitration Rules, http://www.uncitral.org.)