United States District Court, D. Minnesota
William Shields, et al., for and in behalf of themselves and other persons similarly situated, Plaintiffs,
General Mills Inc., Defendant.
C. Snyder, Craig A. Brandt, Snyder & Brandt, P.A., Lucas
J. Kaster, Michelle L. Kornblit, Stephen J. Snyder, Steven
Andrew Smith, Nichols Kaster, PLLP, counsel for plaintiffs
D. Van Oort, Jeffrey P. Justman, Peter Magnuson, Faegre Baker
Daniels LLP, Kathryn Mrkonich Wilson, Marko J. Mrkonich,
Susan K. Fitzke, Littler Mendelson, PC, Keith C. Hult,
Littler Mendelson, PC, counsel for defendant
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge
before the Court is Defendant General Mills, Inc.'s
Motion to Disqualify Counsel, ECF No. 70. For the reasons set
forth below, the Court recommends that the motion be denied.
defendant seeks to disqualify counsel due to a claimed
“unresolvable conflict” created by the
plaintiffs' counsel's representation of two
plaintiffs in separate but related lawsuits. Def.'s Mem.
at 7, ECF No. 72.
2012, General Mills restructured its workforce in a project
referred to as Project Refuel. Mrkonich Decl., ¶ 8, Ex.
2 (“Maxe Arb.”) at 1, ECF No. 73. This resulted
in the termination of many employees, including Peggy Maxe.
Id. Ms. Maxe and her similarly situated colleagues
signed arbitration agreements as part of their termination.
See Id. at 2-3. Believing she was fired due to age
discrimination, Ms. Maxe then filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission (“EEOC”). See Id. at 13.
James Heflin worked at General Mills as a Trade and Business
Development Director during Project Refuel. NK Mem. at 2, ECF
No. 77. According to in-house counsel for General Mills,
James Heflin “was both in Ms. Maxe's supervisory
chain and also a direct participant in the decision to
terminate Ms. Maxe's employment.” Huiras Decl.,
¶ 5, ECF No. 74. In-house counsel asserts that
“Mr. Heflin was instrumental in assisting [her]
investigation into Ms. Maxe's EEOC Charge, and in
preparing [General Mills's] response to the same.”
Id., ¶ 6. In contrast to in-house counsel's
statements, Mr. Heflin has “almost no
recollection” of providing any such assistance and
states, “It seems unlikely to me that I discussed
strategies with [in-house counsel] at all but I do not have
sufficient recollection of my contacts with her to say one
way or the other whether we discussed strategies.”
Heflin Decl., ¶¶ 4b, 4g, ECF No. 81.
Maxe was among the McLeod plaintiffs, represented by
Snyder & Brandt, who filed a collective action in 2015
alleging age discrimination by General Mills. See
Def.'s Mem. at 5; NK Mem. at 2; SB Mem. at 2, ECF No. 79;
see generally McLeod v. General Mills, Inc.,
15-cv-00494 (JRT/HB). General Mills moved to stay or dismiss
that action pending individual arbitration, the district
court judge denied the request, and General Mills appealed to
the Eighth Circuit Court of Appeals. See Def.'s
Mem. at 5; NK Mem. at 6. On April 14, 2017, the Eighth
Circuit remanded with instructions to grant the motion to
compel individual arbitration. See Def.'s Mem.
at 5; NK Mem. at 6. Shortly after the remand, Nichols Kaster
joined Snyder & Brandt in representation of all of the
plaintiffs. See Def.'s Mem. at 6; NK Mem. at 7.
2014, General Mills engaged in further restructuring through
Project Catalyst. Mrkonich Decl., ¶ 6, Ex. 1
(“Heflin Arb”) at 6. A group of employees
terminated during this second wave of firings, represented by
Snyder & Brandt, filed the instant suit in 2016, again
alleging age discrimination by General Mills. See
Compl., ECF No. 1. The matter was stayed pending a decision
from the Eighth Circuit in McLeod. Ord., ECF No 12.
During the stay, on August 30, 2016, Mr. Heflin filed a
consent form indicating his intent to join the class. Notice
of Consent at 3, ECF No. 21. The stay was lifted on May 5,
2017, after the McLeod decision. Nichols Kaster
likewise joined Snyder & Brandt in representation of the
second-wave plaintiffs on July 25, 2017. Ord., ECF No. 30;
Notices of Appearances, ECF Nos. 58-60.
Heflin filed an arbitration demand on July 11, 2017. Heflin
Arb. The signature block included both Snyder & Brandt
and Nichols Kaster, but Nichols Kaster withdrew on July 25,
2017, after General Mills raised its concerns of conflict.
Id. at 25-26; Def.'s Mem. at 7; NK Mem. at 8; SB
Mem. at 16.
Maxe filed an arbitration demand on August 29, 2017. Maxe
Arb. The signature block included only Nichols Kaster.
Id. at 27. Moving forward, Snyder & Brandt will
handle Mr. Heflin's arbitration with no assistance from
Nichols Kaster, and Nichols Kaster will handle Ms. Maxe's
arbitration with no input from Snyder & Brandt. NK Mem.
at 8; SB Mem. at 16.
24, 2017, counsel for General Mills informed Snyder &
Brandt and Nichols Kaster via letter of the potential
conflict and its intent to seek disqualification should the
conflict remain unaddressed. Mrkonich Decl., ¶ 9, Ex. 3.
Snyder & Brandt hired an ethics attorney to evaluate the
circumstances by examining their documents and interviewing
Mr. Heflin. See id., ¶ 12, Ex. 6; NK Mem. at
7-8; SB Mem. at 4. The attorney concluded Snyder &
Brandt's representation of Mr. Heflin created no conflict
and sent a letter so indicating to counsel for General Mills.
Mrkonich Decl., ¶ 12, Ex. 6. Despite this conclusion,
Snyder & Brandt and Nichols Kaster established an
“ethical wall” to prevent any appearance of
impropriety moving forward and divided the representation as
described above. NK Mem. at 8; SB Mem. at 16.
for General Mills did not consider this sufficient to address
the potential conflict and filed the instant motion. Mot. On
October 3, 2017, this Court conducted a hearing on the
motion. Min. Entry, ECF No. 82. The Court heard argument from
counsel for General Mills, Snyder & Brandt, and Nichols
Court has discretion to determine whether counsel should be
disqualified. Gifford v. Target Corp., 723 F.Supp.2d
1110, 1116 (D. Minn. July 13, 2010).
“‘Disqualification is appropriate where an
attorney's conduct threatens to work a continuing taint
on the litigation and trial.'” Id.
(quoting Arnold v. Cargill, Inc., 01-cv-2086
(DWF/AJB), 2004 WL 2203410, at *5 (D. Minn. Sept. 24, 2004)).
In making such a determination, a court weighs “the
interests and motivations of the attorneys, the clients, and
the public.” Id. The Court must ensure the
integrity of proceedings while recognizing the importance of
a party's right to select counsel. Id. at 1117.
Given these lofty concerns, motions for disqualification of
counsel are closely considered, but legitimate doubts are
resolved in favor of disqualification. Id. Although
there are plenty of decisions ...