What is a private attorney general statute?

A “private attorney general” statute authorizes a court to award attorney’s fees to a party that hires a private attorney to address an injustice that harms the public.

This is a big deal. For example, when the state attorney general’s office will not take action to stop harm to the public, this statute allows individuals to be reimbursed for their personal legal fees when they successfully take action with their own private attorney.

Where is Minnesota’s private attorney general statute?

Minnesota’s private attorney general statute is provided in Minnesota Statutes section 8.31. The key provision is subdivision 3a, which provides in part:

Private remedies. In addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney’s fees, and receive other equitable relief as determined by the court.

See Minn. Stat. § 8.31(3a) (emphasis added).

When can attorney’s fees be recovered?

Attorneys fees may be recovered for the following violations:

violations of the law of this state respecting unfair, discriminatory, and other unlawful practices in business, commerce, or trade, and specifically, but not exclusively, the Nonprofit Corporation Act (sections 317A.001 to 317A.909), the Act Against Unfair Discrimination and Competition (sections 325D.01 to 325D.07), the Unlawful Trade Practices Act (sections 325D.09 to 325D.16), the Antitrust Act (sections 325D.49 to 325D.66), section 325F.67 and other laws against false or fraudulent advertising, the anti-discrimination acts contained in section 325D.67, the act against monopolization of food products (section 325D.68), the act regulating telephone advertising services (section 325E.39), the Prevention of Consumer Fraud Act (sections 325F.68 to 325F.70), and chapter 53A regulating currency exchanges and assist in the enforcement of those laws as in this section provided.

Must the public benefit from your case?

The recovery of attorney’s fees and related litigation expenses is only available where the suit seeks a public benefit. See Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000). As the Minnesota Supreme Court explained, “[T]he private attorney general statute [can] be invoked to award attorney fees only if the claims benefited the public.” Collins v. Minnesota School of Business, 655 N.W.2d 320, 327 (Minn. 2003) (citing Ly v. Nystrom, 615 N.W.2d 302,314 (Minn. 2000))

“To determine whether a lawsuit is for the public benefit, courts assess both the form of the alleged misrepresentation and the relief sought by the plaintiff.” Select Comfort Corp. v. Sleep Better Store, LLC, 796 F. Supp. 2d 981, 983 (D. Minn. 2011) (citing In re Levaquin Prods. Liab. Litig., 752 F. Supp. 2d at 1077). “Where plaintiffs seek only damages, courts typically find no public benefit ‘even when plaintiffs are suing for injuries resulting from mass produced and mass marketed products.” Id. 

Addressing harm to a small group of shareholders is insufficient to be considered a benefit to the public. See Flora v. Firepond, Inc., 260 F. Supp. 2d 780 (D. Minn. 2003) (holding that there was no right to attorney’s fees under Minnesota’s private attorney general statute where “transactions here were limited to a finite group of shareholders and option holders, “communications took place directly between” this finite number of people, and there “were no communications to the general public, nor was there any way for the non-shareholding public to participate in or be affected”).

Will courts consider how much the public will benefit?

Yes. A court will evaluate the degree to which a harm affects the public. See In Re: Levaquin Products Liability Litigation (citing Summit Recovery, LLC v. Credit Card Reseller, LLC, No. 08-5273, 2010 WL 1427322, at *5 (D. Minn. Apr. 9, 2010) (concluding that under Minnesota law “[m]isleading advertising to the general public supports a finding that a claim benefits the public [while] a one-on-one misrepresentation is purely private and is not a ground for relief”)).”