EDEN PRAIRIE, MN – The law firm of Hellmuth & Johnson, PLLC announces that Minnesota Law & Politics magazine has named four firm attorneys to the 2010 Minnesota Rising Star® list. The attorneys will be recognized in the December 2009 issues of Minnesota Law & Politics, Twin Cities Business and Mpls/St.Paul Magazine.

The attorneys named to the 2010 list are: Matthew J. Franken, Joel A. Hilgendorf, Christopher R. Jones, and Anthony T. Smith.

Representing the top 2.5 percent of attorneys in the state as selected by their peers, the "Rising Star" list recognizes the accomplishments of attorneys who have practiced for 10 or less years and are 40 years of age or younger.

EDEN PRAIRIE, MN – Hellmuth & Johnson, PLLC is pleased to announce that Gerald C. Robinson has joined the firm.

Gerald joins the firm with 19 years of experience litigating a wide variety of matters. His current practice focuses on representing whistleblowers under federal and state False Claims Acts (“FCA”), as well as other fraud recovery actions.

He is admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Eighth Circuit, the United States District Courts for Minnesota and New Jersey, and the State Courts of Minnesota, New Jersey, and the District of Columbia. Gerald is a member of the Federal Bar Association and the Taxpayers Against Fraud (TAF). He received his B.A. in International Relations, with minors in Economics and Philosophy from the University of Minnesota and his Juris Doctorate from the University of Minnesota Law School.

Hellmuth & Johnson, PLLC offers a range of legal services to meet both corporate and individual needs. Named among Minnesota's 50 largest law firms, Hellmuth & Johnson holds the highest possible Peer Review Rating from Martindale-Hubbell — the AV® Peer Review Rated designation. For more information, visit www.hjlawfirm.com or call (952) 941-4005.

EDEN PRAIRIE, MN – Hellmuth & Johnson, PLLC is pleased to announce that Craig R. Baune has joined the firm.

Baune joins the firm with experience in the areas of litigation and construction and lien law. He focuses in the areas of business litigation, construction disputes, construction defects, mechanic’s lien foreclosures, real estate disputes, and appeals.

He is licensed to practice law in Minnesota, and is a member of the Hennepin County Bar Association and the Construction law section. Baune received his J.D. from The University of Michigan Law School graduating cum laude, and his B.A. in Sociology from The University of Minnesota.

Hellmuth & Johnson, PLLC offers a range of legal services to meet both corporate and individual needs. Named among Minnesota's 50 largest law firms, Hellmuth & Johnson holds the highest possible Peer Review Rating from Martindale-Hubbell — the AV® Peer Review Rated designation. For more information, visit www.hjlawfirm.com or call (952) 941-4005.

EDEN PRAIRIE, MN – Hellmuth & Johnson, PLLC is pleased to announce that Clifford S. Anderson and Michael J. Viola have joined the firm.

Cliff joins the firm with 17 years of experience in the areas of employment litigation and advice, complex commercial and business litigation and advice, and appeals.

He is admitted to practice before the United States Supreme Court, the United States Courts of Appeals for the First, Sixth, Seventh, and Eighth Circuits, various United States District Courts, and the States Courts of Minnesota and Wisconsin. Cliff is a member of the Federal Bar Association, Minnesota State Bar Association, and the State Bar of Wisconsin. He received his B.A. in Economics from Carleton College in Northfield, MN and his Juris Doctorate from the University of Wisconsin Law School in Madison, WI.

In June 2005, he received the Minnesota Advocates for Human Rights Volunteer Award. Cliff is a board member of Family & Children’s Service, and also a board member of the Edina Soccer Club. He lives in Edina with his wife, Ginny and two children.

Viola joins the firm with 14 years of experience in the areas of real estate development and transactions and land use. He focuses in the areas of both commercial and residential real estate transactions, community association law, land use and zoning, school law, and general business law.

He is licensed to practice law in both Minnesota and California, and is a member of the Real Property Section of the Minnesota State Bar Association. Viola is active in several local community organizations, and is a member of the Board of Trustees of the Prairie Creek Community School in Northfield, MN.

Hellmuth & Johnson, PLLC offers a range of legal services to meet both corporate and individual needs. Named among Minnesota's 50 largest law firms, Hellmuth & Johnson holds the highest possible Peer Review Rating from Martindale-Hubbell — the AV® Peer Review Rated designation. For more information, visit www.hjlawfirm.com or call (952) 941-4005.

On June 18, 2009 the United States Supreme Court issued a decision that will likely have a significant impact on future age employment discrimination cases. In Gross v. FBL Financial Services, Inc., the Supreme Court ruled that an individual claiming age discrimination had to prove that age was the deciding factor in the adverse employment decision. Prior to Gross, an individual could recover damages against an employer, at least in part, if the individual proved that age was merely one of several motivating factors in the negative employment decision.

The Age Discrimination in Employment Act of 1967

Congress enacted the Age Discrimination in employment Act of 1967 (“ADEA”) to prohibit discrimination against older workers. Older workers are defined as individuals who are aged forty and over. The ADEA only applies to employers who have twenty or more employees.

To succeed on an ADEA claim, the individual must show that an employer failed to treat the individual the same as other applicants or employees because of age. These claims are known as “disparate treatment” claims. The primary focus in disparate treatment claims is whether the employer intentionally discriminated against the individual on account of age.

An ADEA plaintiff has the burden of production and persuasion on the ultimate question of the employer’s motivation. The individual can proceed by either providing direct evidence of discrimination (i.e. statements that reflect the mental bias of the employer) or through indirect evidence showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it more likely than not that such actions were based on discriminatory factors illegal under the ADEA.

"Mixed-Motives"

Cases where the adverse employment action (usually a termination) was caused by both unlawful discrimination and legitimate factors interacting together on the outcome are referred to as mixed-motive cases. Before Gross, courts would allow a plaintiff recovery in this type of case if the plaintiff could demonstrate that age was a motivating factor in the negative employment decision. For example, if the plaintiff established that age was a factor in the adverse employment decision, but the evidence also revealed that the employer would have terminated the plaintiff regardless of age based on poor job performance, the plaintiff could still recover some damages against the employer.

Gross Decision

In Gross, the employee filed suit against his employer alleging that his employer had demoted him in violation of the ADEA. At trial, the employee offered evidence suggesting that his reassignment was based at least in part on his age. The employer defended its decision on the grounds that the employee’s reassignment was part of a corporate restructuring and that the employee’s new position was better suited to his skills. At the close of trial, the district court instructed the jury that it must return a verdict for the employee if he proved that age was a motivating factor in the employer’s decision to demote him.

The Supreme Court disagreed with the district court. Prefacing its decision with a detailed historical chronology of mixed-motive cases, the Court found that the ADEA does not authorize a mixed-motives age discrimination claim. Therefore, to prevail on an age discrimination claim, the Court ruled that a plaintiff must prove that the adverse employment decision would not have been made “but for” his or her age. In other words, age must be the reason for the decision, not simply a reason.

Employment Discrimination Claim Freeze

Gross will undoubtedly have a chilling effect on age discrimination claims. Disgruntled employees are less likely to bring such claims if there is any chance that their termination was based on both unlawful age discrimination and lawful non-age factors. The decision may also encourage employers to concoct lawful non-age factors when terminating or refusing to hire an individual to escape liability.

Maurice Chevalier quipped that, “Old age isn’t so bad when you consider the alternative.” Perhaps, but the Supreme Court certainly made getting older more difficult to swallow.

If you have specific questions about this article, please contact any of our other employment attorneys at (952) 941-4005.

EDEN PRAIRIE, MN -- The Eden Prairie law firm of Hellmuth & Johnson, PLLC announces that its entire Board of Governors – partners Chad A. Johnson, David G. Hellmuth, Blake R. Nelson and J. Robert Keena – have all been named to the 2009 Minnesota Super Lawyers® list by Minnesota Law & Politics magazine.

Managing partner Chad A. Johnson is a Board Certified Real Property Law Specialist practicing in the areas of real estate and business law. Johnson represents businesses, corporations and limited liability entities, with emphasis on condominium, townhouse, cooperative and other community associations.

David G. Hellmuth concentrates his practice in the areas of civil and commercial litigation, condominium and townhouse law, commercial real estate and construction, banking law, creditors' rights and remedies and business and corporate law.

Blake R. Nelson is a Board Certified Real Property Law Specialist who concentrates his practice in the areas of construction law and litigation, real estate law, business and corporate law, and creditor's rights and remedies.

J. Robert Keena, leads the firm’s litigation team, and focuses on assisting homeowners, businesses and community associations with construction defect issues. In addition, Keena maintains an active commercial litigation practice.

Hellmuth & Johnson, PLLC offers a range of legal services to meet both corporate and individual needs. Named among Minnesota's 50 largest law firms, Hellmuth & Johnson holds the highest possible Peer Review Rating from Martindale-Hubbell – the AV® Peer Review Rated designation. For more information, visit www.hjlawfirm.com or call (952) 941-4005.

EDEN PRAIRIE, MN – Hellmuth & Johnson, PLLC is pleased to announce that Jack Bouquet has joined the firm. Bouquet joins the firm as Of Counsel with over forty years of experience. He practices in the areas of real estate law, community association law, corporate and business law, estate planning, and probate.

Jack is licensed to practice law in the state of Minnesota. Jack is a certified real property law specialist, certified by the Minnesota State Bar Association (MSBA), past chair of the Hennepin County Real Property Section, member of the MSBA's MCIOA committee (charged with reviewing all proposed changes to the Minnesota Common Interest Ownership Act), past chair of the Minnesota Chapter of the Community Associations Institute (CAI) and currently a member of the CAI Legislative Action Committee.

Hellmuth & Johnson, PLLC offers a range of legal services to meet both corporate and individual needs. Named among Minnesota's 50 largest law firms, Hellmuth & Johnson holds the highest possible Peer Review Rating from Martindale-Hubbell — the AV® Peer Review Rated designation. For more information, visit www.hjlawfirm.com or call (952) 941-4005.

H&J reminds its clients and friends that on July 1, 2009, the Minnesota state general sales and use tax rate increases from 6.5% to 6.875%.

This increase is a result of the constitutional amendment approved by voters in the November 2008 general election. The amendment increases the tax rate to fund various environmental protection programs.

If you are presently required to collect and remit sales tax, this would be a good time to double check your billing system to make sure it reflects the new rate. Tax tables are provided by the Minnesota Department of Revenue (MN-DOR), including taxing areas by zip code breakdowns for some popular tax districts. (Some areas have additional sales tax levies on top of the 6.875% that increase the sales tax rate.)

For construction entities, please remember that there is transitional language provided in Minnesota Statute 297A.68, Subd. 39 that applies specifically to construction contracts when the sales and use tax rate changes. This permits an exemption from the tax increase under certain circumstances. (In order to avail yourself to this exemption, the contractor should provide sellers with a fully completed form ST3. (See the online version of ST3 from MN-DOR). Other examples of phasing in of the tax increase are found on the State of Minnesota, Department of Administration maintained website.

Business entities should bear in mind that a failure by the business entity (whether it be a corporation, LLC, LLP, partnership, etc.) to collect and remit sales taxes could subject those individuals who have "control of, supervision of, or responsibility for filing returns or reports, paying taxes, or collecting or withholding and remitting taxes and who fail to do so" to personal liability for the unpaid taxes, interest and penalties. This group of individuals could include employees, officers, directors, governors, shareholders, members and partners. Where the MN-DOR makes a determination that there is personal liability for nonpayment of sales taxes, the burden is on the person assessed to show why the Commissioner was wrong.

If you have specific questions about the sales tax increase, any other issue raised in this H&J Client alert, or any other general business question, we would be happy to visit with you. Please contact one of our Business Services Group Co-Chairs, Joe Beckman or Shane Kelley at (952) 941-4005 or jbeckman@hjlawfirm.com or skelley@hjlawfirm.com.

In a recent unpublished opinion, the Minnesota Court of Appeals held that individuals could be held personally liable for a judgment against a corporation, even where the individuals were not specifically named in corporate documents as having been shareholders or members.

In Equity Trust Company et al. v. Joseph Cole, et al., decided on June 9, 2009, the Court of Appeals affirmed a district court decision to pierce the corporate veil and hold individuals liable for default judgments entered against companies involved in a complex real estate fraud scheme. The individuals had argued that the district court incorrectly held them responsible for the default judgments against the corporate entities, as the individuals had not been shareholders or members of the defaulted entities.

The Court of Appeals disagreed, focusing on the fact that the defaulted companies had been alter egos of the individuals. The Court examined a number of factors, and found substantial evidence that the individuals had been personally involved in the ownership, management, and operation of the corporate entities. However, more generally, the Court stated that if piercing of the corporate veil were solely dependent on a party's ownership interest in a corporate entity, unscrupulous parties could avoid personal liability under the doctrine by simply acting in a capacity that did not involve ownership.

The Court thus reaffirmed the rule that a district court may pierce the corporate veil to impose personal liability against any party who disregards the corporate form, regardless of whether the party holds an ownership interest in the corporate entity. This is an important reminder for business entities of the dangers of disregarding corporate formalities.

To have your corporate status or records reviewed, or to have any general corporate questions answered, please contact Joseph P. Beckman, Shane R. Kelley at 952-941-4005.

Recently, the U.S. Supreme Court decided a case which will make it much more difficult for employees (or former employees) to bring claims of age discrimination based upon the ADEA (Age Discrimination in Employment Act).

Previously, the framework for proving an ADEA claim in the Eighth Circuit (including Minnesota) had been that the employee bore the initial burden to prove that age was motivating or substantial factor in the employer's adverse action (demotion, firing, etc.). The burden then switched to the employer to show a non-discriminatory reason for the action (i.e., that the decision or action would have been the same regardless of the employee's age). This was known as the “McDonnell Douglas” burden-shifting framework.

However, in Gross v. FBL Financial Services, Inc., the Supreme Court held that a plaintiff bringing an ADEA disparate-treatment claim must prove instead, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer (to show that it would have taken the action regardless of age), not even when a plaintiff has produced some evidence that age was one motivating factor in the decision.

This ruling changes the treatment of age-related discrimination claims, as the burden-shifting “McDonnell Douglas” framework no longer applies to ADEA claims, and the Court emphasized that most recent amendments to Title VII of the Civil Rights Act of 1964 did not include a burden-shifting provision for age discrimination claims.

In other words, going forward, without hard evidence that age was the single “but-for” cause of the adverse employment action, an employee’s claims of age discrimination under the ADEA or Title VII will fail. And because employees almost certainly will not have been present while the employer discussed laying them off, demoting them, or firing them, it will be extremely difficult for employees to obtain such evidence.

Please contact John J. Steffenhagen, or any of our other employment law attorneys at H&J with questions.

EDEN PRAIRIE, MN – Hellmuth & Johnson, PLLC is pleased to announce that Karl E. Robinson has joined the firm.

Robinson joins the firm as a partner with over twelve years of experience. He practices in the areas of litigation including business and commercial litigation, appeals, employment disputes, real estate litigation and securities litigation. Karl is licensed to practice law in the states of Minnesota and Iowa. He is a Member of the Minnesota, Hennepin County, Ramsey County, American and Federal Bar Associations, Member of the Governing Council of the Minnesota State Bar Association Appellate Practice Section, Member of the Board of Directors and Treasurer for the Eighth Circuit U.S. Court of Appeals Bar Association, and Adjunct Professor at William Mitchell College of Law.

Hellmuth & Johnson, PLLC offers a range of legal services to meet both corporate and individual needs. Named among Minnesota's 50 largest law firms, Hellmuth & Johnson holds the highest possible Peer Review Rating from Martindale-Hubbell — the AV® Peer Review Rated designation. For more information, call (952) 941-4005.

Although we had all hoped that the fraud related to the "subprime mortgage meltdown" was behind us, perpetrators of fraud seem to create new schemes with each new moon, and some of the more "lucrative" schemes of the past remain a risk today.

Fraudulent Promissory Note & Bonds

The U.S. Treasury, Office of Inspector General (OIG), has recently published an alert regarding a new fraud scheme. Real estate professionals should be aware of the scheme and its potential impact on a purchas

Hellmuth & Johnson, PLLC and award-winning design and build firm College City Homes and Remodeling are again partnering to present Moisture Intrusion seminars for homeowners in 2009. These highly popular, free seminars provide homeowners and prospective home buyers with information on identifying and resolving moisture intrusion issues - including the home investigation process, remediation, and the legal rights and responsibilites of homeowners. Real estate and building professionals are

Intentionally Defective Grantor Trusts

Here's a great technique used to transfer wealth in an advantageous and unique way: gifting an asset's appreciation while keeping its income. An Intentionally Defective Grantor Trust (IDGT) is an irrevocable trust designed for the benefit of your children and future descendants.

How Does a Defective Trust Work?

Typically, the trust maker sets up an irrevocable trust. The trust is drafted so that the trust maker retains enough control to cause it t

Hellmuth & Johnson, PLLC is pleased to announce that firm partner Lee R. Bissonette has been certified as a member of the Multi-Million Dollar Advocates Forum.

Lee is presently a Life Member of the Million Dollar Advocates Forum, one of the most prestigious groups of trial lawyers in the United States. Membership in the Million Dollar Advocates Forum is limited to attorneys who have won million and multi-million dollar verdicts, awards and settlements.

Less than 1% of U.S. lawyers a

Does North Dakota law protect those who provide horse boarding, training, and riding services from liability for injuries sustained by their customers?

Yes. North Dakota's equine activity statute generally shields "equine activity sponsors" and "equine professionals" from liability for bodily injuries sustained by participants during equine activities.

An equine activity sponsor or an equine professional is not liable for an injury to or the death of a participant engaged in an equine ac

Hellmuth & Johnson, PLLC is pleased to announce that Mark E. Rath and Carol R.M. Moss have joined the firm's Litigation Practice Group.

Mark Rath concentrates his practice in the areas of insurance defense, municipal defense litigation and commercial litigation. He is licensed to practice law in the state courts of Minnesota and Michigan, the United States District Courts for the Eastern and Western Districts of Michigan, the U.S. Sixth Circuit Court of Appeals, and the Tribal Court f

Recognized Among Top 2.5% Attorneys in State

Hellmuth & Johnson, PLLC today announced that Minnesota Law & Politics magazine has named five firm attorneys to the 2009 Minnesota Rising Star^® list. The attorneys will be recognized in the December 2008 issues of Minnesota Law & Politics, Twin Cities Business and Mpls/St.Paul Magazine.

The attorneys named to the 2009 Rising Star list are:

Matthew J. Franken / General Litigation, Construction Litigation, Real Estate

The Federal Fair Housing Act (FHA) and the Minnesota Human Rights Act (MHRA) prohibit discrimination against some protected classes, such as disabled individuals. Normally, a residential housing provider is required to make reasonable accommodations in its policies, procedures and practices to afford a disabled individual with an equal opportunity to use and enjoy a dwelling. These acts have been held to apply to community associations.

In the context of pet and animal restrictions, an a

In a previous article, we discussed use of electronic communications to conduct business of associations governed by Minnesota Statutes Chapter 515B, the Minnesota Common Interest Ownership Act (MCIOA). (See our Spring 2008 newsletter.) As that article indicated, boards acting on behalf of associations governed by MCIOA are required to have open board meetings except when the discussion involves certain sensitive matters (as enumerated in MCIOA).

Not all associations, of course, are gove