The case I am referring to is Kidwell v. Sybaritic Inc. involving an in-house attorney, Brian Kidwell, who says he was terminated from his employment with Sybaritic as retaliation for whistleblowing. A jury agreed with Mr. Kidwell, awarding him $197,000 in damages. He also got $130,000 in attorney fees.
But the Court of Appeals overturned the verdict in 2008, finding that while there is no per se rule barring an attorney from a whistleblowing claim, Mr. Kidwell was merely fulfilling the duties of his job when he sent out an e-mail warning superiors of suspected legal violations by the company. Thus, his conduct was not protected.
The Minnesota Supreme Court accepted review in late 2008 and heard arguments in February 2009 (yes, that’s 2009!) and the case is still pending.
In a phone conversation this morning, Mr. Kidwell said the high court currently has 40-45 cases pending of which his case – pending for 16 months – is by far the oldest. The second oldest pending case is just nine months old.
So what is going on?
Mr. Kidwell, of course, has no idea. However, he’s done some research and discovered that the case won’t necessarily be decided before Eric Magnuson steps down as chief. Magnuson could cast his vote before he departs and leave it to the other justices to put the final touches on the opinion – or the incoming new justice, David Stras, could read the briefs and participate in the decision. (I suppose the case could also be decided by six justices).
Mr. Kidwell acknowledged that the court does try to get as many decisions off its plate as possible when a justice is leaving, but stressed again that this is just tradition, not a requirement.
Meanwhile the Kidwell case has become the “Where’s Waldo?” of the Minnesota legal community. Every week we at Minnesota Lawyer sift through the high court’s decisions looking for it. Mr. Kidwell said he does the same.
Asked if he’s getting “a little antsy” at this point, Mr. Kidwell replied, “Antsy doesn’t even begin to describe it. “