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Where's 'Kidwell?' Case continues to pend, and pend and pend

Minneapolis attorneys James Kaster and Sofia Andersson, left, with their client, Brian Kidwell in February 2009, when the case was argued.

It’s close to midway through the year, the chief justice of the Minnesota Supreme Court is about to step down and a decision on the most highly anticipated whistleblower case of 2009 still hasn’t been issued. What’s going on?  

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. “


  1. Eileen Sullivan

    In a perfect world, alerting employers to potential litigation resulting from their actions would be lauded, and seen as loyalty by an ethical partner. How many of YOU think we live in that world? Clearly not the jury, made up of people from all walks of life, versus courts, made up of attorneys who value the Club more than honesty and fair play. From this perspective it could more easily be argued that Kidwell’s actions impeded the bottom line, the expressed interests of others and therefore were NOT received as a diligent attorney doing his responsibility but asa “traitor, a turncoat, a troublemaker, a non-company man,” allegations many of us in the workforce have seen wielded against others who have lost their jobs. Will the employers ever admit this? Of course not. Those actions would be not only vindictive but illegal. But the jury, living out here in the less rarified atmosphere of the real world, know it happens all the time and know the many ingenious names by which a punitive termination might be called. To leave a man waiting for the justice he already earned once for this amount of time is clearly a violation of Mr. Kidwell’s rights. Listen carefully, peers of Mr. Kidwell, for whom the bell tolls. It may be you.

  2. Generally speaking decisions of intent are left NOT to aggrieved law firms, nor to attorneys who may or may not be engaged in classic CYA and Kiss Up before the high courts, but to juries, as was done in this case. The fact that the plurality decision came from two markedly different perspectives suggests to me, indeed to anyone following the case, that too many law firms needed this precedent to protect them from men of conscience. Thomas More was an attorney as well. When he acted in conscience, we all know what happened to him. Conscience and clients lost today, but Kidwell is still, in the books of those following this case, truly A Man For All Seasons.

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