MN High Court Decides Whistleblower Attorney Case

Minnesota case law summary by Attorney Richard Clem: attorney whistleblower, Minn. Stat. 181.932.

Kidwell v. Sybaritic, Inc.. MN attorney whistle blower, Minn. Stat. 181.932

Plaintiff was the former in house general counsel of defendant, and he brought this action under the Minnesota whistleblower statute, Minn. Stat. 181.932. He alleged that he had been fired because he was a whistle blower. He had concerns about the company's failure to investigate dishonest salespeople. He also had concerns that the company salesmen were engaging in the unauthorized practice of medicine by assisting during surgeries. Finally, he had concerns about tax evasion. The jury agreed with the Minnesota whistleblower attorney, and returned a significant verdict in his favor.

His former employer was dissatisfied by this turn of events, and appealed the case. It ultimately made its way to the Minnesota Supreme Court. The plurality opinion was authored by Justice Gildea. It first held that this statute did not contain a "job duties exception" that would categorically bar employees (such as an attorney) whose job is to report suspected illegality from bringing a claim. However, those job duties are relevant in determining whether the employee was engaging in protected conduct under the statute, or whether he was instead engaging in his job duties.

In this case, however, the employee was merely carrying out his job duties, namely, rendering a legal opinion. Therefore, he was not engaging in protected conduct under the whistle blower statute.

Chief Justice Magnuson concurred in the result, but would have barred the claim since the plaintiff had violated his fiduciary duty to the defendant, apparently due to the fact that plaintiff had sent a copy of an e mail to his father, a retired businessman.

Justices P.H. Anderson, Meyer, and Page, dissented and would have affirmed the verdict in favor of the whistleblowing attorney.

Nos. A07-584 A07-788, 784 N.W.2d 220 (Minn. June 24, 2010)

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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