Minnesota Cyclist/Lawyer Derailed By Train Company

Bob Cattach

Update (August 5, 2016): A jury decided against Bob Cattanach in his lawsuit against the BNSF railroad company. Today U.S. District Court Chief Judge John R. Tunheim (D. Minn.) rejected Cattanach’s bid for a new trial. 

Update (September 29, 2015): Bob Cattanach’s gets gets some real ink (a nice article by Randy Furst in the Star Tribune today.)

Update (September 21, 2015): I am a bike-rider in his fifth year of year-round bike commuting (go to this page and scroll down) and I have been known to say, “If you have not had a bike accident, you’ve not ridden your bike enough.” A cast-off aphorism like that is meant to be witty or thought-provoking (both of which are admittedly debatable). It’s a kind of humble-brag, often used to preface warriors’ baring their scars and telling of the crashes they have survived. Another lawyer humble-brag is, “If you haven’t lost trials you should have won or won trials you should have lost, you haven’t tried enough cases…”

I am pretty sure that Bob Cattanach has earned the rights to these humble-brags and many more. Linked is a decision in which Cattanach and his lawyers beat back the railroad’s attempt to win the case on summary judgment on Cattanach’s complaint against the railroad based on a bike accident.

(Sidetrack to BNSF (or whomever is responsible for the track at this location): I am concerned about the track at Beltline Boulevard in St. Louis Park Minnesota where it crosses Beltline a few feet from the Cedar Lake Bike Trail. That’s a frigging chasm you are forcing bike-riders to cross over. The ties are rotten. Don’t wait until someone kisses rail head. Time to mind the gap…) [August 5, 2016 Ed. Note: BNSF fixed this problem within 30 days of this post. Post hoc ergo propter hoc???]

Read on for the original Minnesota Litigator interview with Bob Cattanach of Dorsey & Whitney LLP.

Original post (June 20, 2013) (original post under the headline: “Minnesota Litigator Profile: Bob Cattanach, An Inspiration On Two Wheels and Off”): As a novice bicycle commuting addict myself, I cannot start a profile of Dorsey 20+ year partner, Bob Cattanach, any other way than with a portrait of him in his cycling outfit and the mind-numbing fact that for the past 14 years he has not missed a day of commuting into work,10 miles each way –  rain, shine, snow, minus 20 without the windchill – if he’s at the office, he’s gotten there on his bike. Bob uses his commute as the base for his race training.  For over ten years, Bob has been riding for the Grand Performance Bianchi team and has two individual state championships to his credit.

As the Roman poet Catullus said a while ago in a different context (and, himself, cribbing from the Greek poet, Sappho), “Ille mi par esse deo videtur, ille, si fas est, superare divos…”  (Translation: “That man seems to me, if it is permissible for me to say it, to surpass the gods themselves…”)

But to focus on Cattanach’s cycling achievements in a Minnesota litigator profile seems a little unfair to Bob.  He has been at least as impressive in his many years of practice.

What’s your advice to new lawyers?

Do something that makes you excited to get out of bed in the morning.  If you are not enjoying your area of practice, find another one.  The hours are otherwise too long and the work is too hard.  Find an area of the law that puts a smile on your face.  Whether you make a lot of money or a little money, if you’re happy when you leave work at night for the most part, then you will have a great career and it won’t be benchmarked by your bank account.

How did you get to where you and your practice are today?

I started out in Washington D.C., where I was the Special Counsel to the Secretary of the Navy, The Honorable Graham Claytor.  It was a phenomenal opportunity to see a great legal mind, and a great man, at work.  (He was President of the Harvard Law Review, Clerked for Learned Hand and Justice Brandeis, went on to become Managing Partner at Covington, etc etc).  Secretary Claytor was a close friend of then-Attorney General Griffin Bell, and as I was getting ready to leave that job he encouraged me to become a Trial Lawyer at the Department of Justice.  Since I had a high-level security clearance from my time in the Navy after I graduated from Annapolis, I was assigned to national security cases, and one of my main clients was the CIA, on whose behalf we tried some phenomenally interesting cases.  After a few years in DC, I came back to the Midwest and worked first for firm in Milwaukee and then Oppenheimer; I’m now in my twentieth year at Dorsey & Whitney.

How has your practice evolved in recent years?

My core work is regulatory litigation, including environmental, telecommunications, and most recently Privacy and Data Protection.  My engineering background has made it a lot easier for me to master the technical aspects of all of these areas.

What are some of the emerging issues in Privacy that you are seeing? 

Data Breach is an increasingly important issue for all sectors of our economy.  With some narrow exceptions, there is no overarching regulatory structure on the federal level, so this area has spawned a hodge-podge of individual state legislation (46 at last count), many of which cannot be reconciled.  These differences create significant policy challenges for companies having to deal to a breach, as the time pressure to respond is enormous, and the judgment calls can be very challenging.

In order to keep current in this rapidly changing area, we at Dorsey have compiled and constantly update the data breach provisions for each of these 46 jurisdictions.  Within literally minutes, we can assess the differing regulations to help our clients navigate through the labyrinth of obligations when a breach occurs – which seems almost inevitable as the tracking of and access to our personal information proliferate.  While many on both sides of the aisle in Congress believe that a comprehensive and preemptive federal approach to data breaches makes eminently good sense, that prospect seems unlikely given the current legislative paralysis; the challenges created by the current patchwork quilt of regulatory structures are not going to go away any time soon.

Perhaps of most interest is the evolving law on the potential consequences for those whose personal information may have been compromised.  The courts have been understandably hesitant to venture too far into this relatively unchartered territory.  Depending on the nature of the breach, there may be no adverse consequences at all, or there can be extremely serious problems, for example if a person’s identity is stolen as a result.  The plaintiff’s bar has been increasingly active in fashioning novel causes of action in the hopes of finding some traction in this developing area of the law, but thus far there does not appear to be any groundswell of support from the judiciary absent an actual showing of harm resulting from a data breach.

If a company misrepresents how it protects personal information, however, that is a very different matter. Virtually any consumer-facing company now has its privacy statement on its website. While laudatory in theory, the reality is that many companies simply do not know the full extent to which vendors and others may be unaware of the company’s privacy policies, or may deliberately ignore them – witness the recent incident with Mr. Snowdon and NSA.  Companies constantly need to ask themselves: Who has access to our data? Where does it actually reside?  What are the protocols in place to ensure privacy?.

Even in the absence of any statutory private cause of action for “breach of privacy”, companies that  claim to be doing one thing with personal information but in fact are found to be doing something else face claims for deceptive trade practices, especially by the FTC under Section 5.

Finally, if you talk to the FBI, as I do from time to time, they will tell you: “Smart crooks simply don’t rob banks anymore.  It’s much easier for them to hack into an account, grab the money, and transfer it in ways that are increasingly difficult to trace.”

Where does Minnesota stand in among the states on data privacy regulation?

In terms of sensitivity to protecting individual data, California and Massachusetts typically lead the way, with Minnesota not too far behind. The Minnesota AG definitively falls on the more aggressive end of the continuum when it comes to enforcement.

What are your thoughts about cutting edge technology and privacy?

Society faces fascinating, but increasingly difficult, policy issues in the area of privacy.  Google’s glasses and facial recognition technology create mind-boggling  implications.  Combine those technologies with increasingly easy access to Big Data as a result of computer processing breakthroughs and you quickly realize that we are on the cusp of complete strangers being able to identify who we are, where we live, where we’ve just been, and what we do, on an almost real-time basis.  This creates profound policy implications, and almost certainly will affect traditional personal privacy expectations.

Who are the cutting edge thinkers you follow on these tough privacy questions?

There are many, but one of my favorites is right here at the U of M Law School, Bill McGeveran.  He is insightful, smart, extremely thoughtful on privacy issues, and on top of all that a pretty funny guy.

Do current issues with technology and privacy strike you as ominous for our future or promising?  Some believe this evolution is exciting and others threatening…

This is a really tough question.

On the one hand, we have the fiction of “informed consent” that should allow us to control who has access to our personal information.  But who really thinks about what the consequences are – or even bothers to read the boilerplate – when we click, “I agree” online.  While most of us truly have absolutely nothing to hide, I confess that it is a bit unnerving to me how much the data trackers could know about me if they wanted to. The E.U. theoretically espouses a much more rigorous approach to informed consent, but as a practical matter I suspect its not really all that much different.

Counterbalancing this inevitable erosion of our traditional notions of privacy is the revolutionary application of de-personalized data for social good, particularly in the health care industry.  The potential for improving the speed and accuracy of diagnosis, and tailoring health care treatment by using vast amounts of aggregated data, may be the breakthrough we need to reverse the ever upward spiral of health care costs.

I have to conclude with your bike commuting top tips to readers…

The first piece of advice (from too many unfortunate experiences): ALWAYS assume that people in cars do not see you, and that even if you make good eye contact they will not respect your space. Ride as defensively as if your life depends on it – because it does.

The second piece of advice: NEVER ride at night without lights.  Get a higher end rechargeable headlight for the front, and a cheap blinky for the back.

Last but not least: ALWAYS wear your helmet. If you are reading this blog, you can’t afford to risk your most important asset.