Tips & Traps

Trap:
Fair Debt Collection.  Attorneys who regularly collect consumer debts must comply with the provisions of the Fair Debt Collection Practices Act (fdcpa) 15 usc 1692a(6)(F).  Prior to 1986 when it was eliminated by Congress, a safe harbor provision of the fdcpa specifically excluded attorneys collecting for debts on behalf of their clients.  The Supreme Court made the change clear in Heintz v. Jenkins, 115 S.Ct 1489 (1995), ruling that a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is subject to the provisions of the fdcpa. Attorneys who litigate these types of claims on behalf of their clients need to follow the provisions of the fdcpa and should make sure to use the “mini-Miranda” language on all correspondence to debtors and even in the Summons and Complaint.

Christopher M. Kennedy
Kennedy & Kennedy
Mankato
knklaw@hickorytech.net

Tip:
Accident Reports.  Although the authors of motor vehicle accident reports, such as investigating officers, can testify as to the information they gathered to make the report, the reports themselves are confidential and cannot be entered into evidence.  Minn. Stat. 169.09, Subd. 13(b) (“Accident reports and data contained in the reports shall not be discoverable under any provision of law or rule of court. No report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the commissioner of public safety shall furnish upon the demand of any person who has, or claims to have, made a report, or, upon demand of any court, a certificate showing that a specified accident report has or has not been made to the commissioner solely to prove compliance or failure to comply with the requirements that the report be made to the commissioner.”).

Mike Ford
Quinlivan & Hughes
St Cloud
mford@quinlivan.com

Trap:
Trademark Infringement. When a client arrives with what appears to be indisputable evidence that another company is infringing its trademark, be sure to check whether the client — or the other company — was the first to use the mark or file a federal trademark application.  Sending a cease-and-desist letter asserting a likelihood of confusion and trademark infringement without fully investigating which party has priority could result in an unintended, but well-reasoned response:  “We agree that there is a likelihood of confusion, but we have priority. Therefore, your client is the infringer.”

Travis L. Bachman
Dorsey & Whitney LLP
Minneapolis
bachman.travis@dorsey.com

 

Tip:
Personnel Files.  The Legislature in 2004 amended Minn. Stat. §181.961, authorizing employees to see their personnel files once each year after they leave their place of employment. The amendment leaves intact a provision permitting employees biannual review of their personnel files during employment, but permits annual inspection indefinitely following the end of the employment relationship.  Refusals to furnish personnel files generally are left to an employee to remedy through private litigation.  But the only sanction is a fine of up to $5,000 imposed by the Department of Labor and Industry under Minn. Stat. §187.9641, which has probably rarely, if ever, been invoked. By requiring disclosure for an indefinite time period, the new law implicitly requires employers to maintain personnel files indefinitely.  An employer who disposes of files or portions of them risks not only a prospective fine, but also the possibility that adverse inferences will be drawn if personnel files are disposed of or not available when requested by employees or their counsel. 

Marshall Tanick
Mansfield, Tanick & Cohen, PA
Minneapolis
mtanick@mansfieldtanick.com

Tip:
Testamentary Capacity.  Testamentary capacity requires only that the testator have capacity to know and understand the nature and extent of his bounty and not actual knowledge thereof. The Minnesota Court of Appeals, ruling in In re: Estate of Bernhard Max Preussner, Deceased, A03-153, (Minn. App. 2004), ruled that the testator has testamentary capacity to execute a will if he understands the nature, situation, and extent of his property and the claims of others on his bounty or his remembrance, and he is able to hold these things in his mind long enough to form a rational judgment concerning them. The court identified the following factors to be considered by a district court in determining whether a testator possessed testamentary capacity: (1) the reasonableness of the proposed disposition; (2) the testator’s conduct before and after the execution of the document; (3) any prior adjudication regarding the testator’s mental capacity; and (4) any expert testimony concerning the testator’s physical and mental condition.

William Forsberg
Parsinen Kaplan Rosberg & Gotlieb
Minneapolis
wforsberg@parlaw.com

Trap:
Special Assessments.  If a client wants to appeal a special assessment, the time limits are very short.  First, a written objection to the proposed assessment must be filed either with the city clerk before the assessments are adopted, or with the mayor at the hearing when the assessments are adopted.  If this objection is filed, then the assessments may be appealed in the 30-day period after the assessments were adopted. Missing either of the deadlines is fatal to a claim.

Karen E. Marty
Karen E. Marty, Attorney at Law
Bloomington
kmarty@ix.netcom.com