Photo Taken on April 16, 1990 on the steps of the U.S. Supreme Court after the arguments in Maislin v. Primary Steel (opinion linked here: https://goo.gl/bX3AS8). From left to right are Brent Primus, Bill Augello, Bruce Hocum and Sam Rubenstein
We recently had the honor of interviewing Brent Wm. Primus of Primus Law Office, P.A. who has been practicing law in Minnesota for about 45 years. His experience is a vivid and inspiring illustration of the essential blend of blind luck and individual initiative that life requires for professional (and personal) success.
ML: Forty-five years of legal practice and all at the same firm?
Brent Primus: Correct. It will be 45 years in September.
ML: I understand it is your firm now (with law partner, Laurel Learmonth) but it was your father’s firm originally. And how long has the firm been in existence?
Brent Primus: Well, my father, Lee B. Primus, moved to Minnesota in 1948 or so. At first, he just had a few insurance company clients where he did insurance defense work, and then at some point in the early fifties he went out on his own. He first officed in the Wesley Temple building, which is now part of the convention center next to Wesley Church. When I was quite little, I remember going there and seeing — he was actually an early innovator — he had a dictaphone system that used wax-coated cylinders. As he dictated, the cylinders would turn and it worked like a lathe. There’d be a blade peeling off a thin layer of plastic waxy material, which, as a young boy, intrigued me no end.
He later moved to the First National Bank building, but not the new edifice there now, and then by the mid-50’s he landed in what was then known as the Midland Bank Building where the firm stayed until 2007 when we moved across the street to the Tri-Tech Building.
ML: I note in your C.V. that you began your legal career investigating auto accidents while still in high school?
Brent Primus: You know, high school summers, like if someone’s family runs a grocery store or a dry cleaner, they help out there. In my case, my dad had a law office and by that time he was on his own doing plaintiff’s work, so I’d take the Polaroid camera, which in its day was high-tech, and go out to the accident scene and take various pictures from various angles all over town. And I’d also try to see if there were any witnesses. I’d knock on a few doors and see if someone had seen the accident.
ML: Did you go to college with the intention of becoming a lawyer?
Brent Primus: No, not at all really. In fact, during college, I decided not to be a lawyer, but then later that changed, of course.
ML: What was pushing you away from the law?
Brent Primus: Just not inclined to do it. I also saw what my brother, Richard Primus, had been doing as a lawyer for a while. It didn’t attract me so much. It didn’t really push me away, but it didn’t pull me in either. Put it that way.
ML: Did your brother practice with your father?
Brent Primus: Yes, for a while.
ML: And, at some point, in college, you decided you’d go to law school?
Brent Primus: No, actually not. I graduated in the spring of ‘68. That was the peak of the Vietnam War. And I joined the Peace Corps for two reasons: first, I thought it’d be a good thing to do and, second, you got a deferment. Then, while I was in the Peace Corps, I got a feel for the international life. I was stationed in rural India, but we’d go into Jaipur, the capital of the state of Rajasthan, for the weekends. So you’d see the people there like from A.I.D., the United Nations, or the State Department. There was a whole international community then as there is now. And I thought this is kind of cool. I’d like to do that. But I did not want to go back and work in agriculture. To do that I would have had to go back and get a B.A. in agriculture or some related field. I had a B.A. in philosophy and I didn’t really want to go back to undergrad school. So I figured law would be the one field that would provide a broad scope that I could get back into the international work with a law degree.
ML: But it didn’t go that way.
Brent Primus: No, it didn’t. After I got out of law school — I took all the international law courses available at the U of M, which was three — then I thought, “Well, I’ll go down and practice a year or two with my father and brother and get some experience.”
That year or two morphed into 45 at the same corner, Fourth Street and Second Avenue, Minneapolis, Minnesota.
ML: Our Minnesota Litigator profiles try to shed light on people who have niche expertise, people who have deep experience but aren’t widely known in the legal community. And it seems to me that your experience in what I will call “cargo law” fits the bill. Can you tell us how you got into this area of law and how did you develop it, if in fact you consciously did?
Brent Primus: So just to clarify, I would think of it not as “cargo law” per se, but as supply chain and logistics. And I have an answer I’ve developed for lawyers as well as others. If someone asks me “what is transportation law, I’ve come up with this: “the laws and regulations governing the supply chain and the relationship of the parties therein, which would be the carrier providers — ocean liners, airlines, railroads, trucking companies — and their customers, which would be manufacturers or distributors, and then there’s a third category broadly called intermediaries that are in the nature of brokers, who don’t actually operate equipment, but act as facilitators.” Most companies don’t have expertise in transportation, so these intermediaries will provide various services, the most basic being just finding a truck to move a load, but they also need a variety of other broad services, consulting, rate negotiations, freight bill audit and payment and so forth.
ML: How did you find yourself doing supply chain and logistics law?
Brent Primus: It was through a series of coincidences like a lot of our lives. I’ve always been intrigued by planes, trains, boats, not so much trucks per se, and travel. So the first coincidence was in 1973, I was getting out of law school and at that time there was a state agency known as the…it has changed its names over the years… I think it was called the Public Service Commission at that time. It had three or maybe five elected members, as I recall. So my father was acquainted with Donald Peterson, a Minnesota Supreme Court judge, and his brother, P. K. Peterson, who, at one time had been a two-term mayor of Minneapolis. P.K. served on the Public Service Commission.
Then I suppose it was the Fall of ’72 or thereabouts, Karl Rolvaag, the Minnesota Governor, ran for reelection and lost. So he ran for the Public Service Commission and won. So P. K. Peterson was out of a job. My dad was acquainted with him and said, “Well listen, we’ve got an extra space here at our office. Why don’t you come down here?” My father suggested he just use our office, a very loose arrangement until he got himself situated. I was just finishing up law school and I was assigned to be his “gofer” (as in “go for this, go for that”). So then I would second chair him at hearings and watch a few hearings and, in fact, on the day I was sworn in, in the Fall of ’73, we were engaged in a proceeding before the Public Service Commission involving intrastate petroleum rates. In those days, the rates had to be not set, but approved, by the board. So my first case was a transportation case on my very first day practicing as a lawyer.
So, commencing in ’73, because P.K. had been on the board, people would call him up to help. Then he got a job as a Social Security Administrative Law Judge. I stayed at the firm and I’d get a case or two and they basically involved not the rates but the operating rights, wanting to get the authority or permission or else existing carriers who had an opportunity to protest and present evidence that there wasn’t a need for another carrier. You had to get something known then as a certificate of public convenience and necessity….
The basic mantra of existing carriers would be to say, “Hey, we’ve got enough carriers. If we get any more they’ll dilute the revenues and da-da-da.” It was quite hard to get authority and the same regulatory scheme was at the federal level, but I didn’t get involved at the federal level until 1989.
But between ’73 and ’89, the transportation work was not the thrust of my practice. I’d do a case or two now and then.
The way I sum it up is, the seventies was criminal law, DUIs, misdemeanors, gross misdemeanors, but also two homicide cases, murder cases.
Then the 80’s was real estate law. I had a client who had a string of apartment buildings. So I was on the unlawful detainer calendar quite a bit. And, in those days, residential real estate closings would have lawyers involved. So, my big case there, I represented the seller, about 1985 or so, of the Sheraton Northwest Hotel properties, a multi-million dollar transaction. It was a big deal for those days. That was the 80’s. The 70’s was criminal law. 80’s real estate.
In the 90’s, the transportation law blossomed again.
Another big coincidence…a fellow that I had met, Sam Rubenstein, had a company called Rubinstein Logistics. He was an ICC practitioner, which was a license that the ICC gave. There was actually a three-day exam, so those people could act as lawyers before the Interstate Commerce Commission and the state — with no official statute — just recognized them as such. So Sam was always on the other side and I thought he was kind of abrasive, kind of a jerk, but I kept my mouth shut… fortunately. Because the next coincidence was… I was at the office about 7:30 at night, say, in the mid-80’s. I got a phone call from one of our clients, Thomas Scallen. He recently passed away, but he was a classic American entrepreneur. He, at one time, owned the Ice Follies, the Harlem Globe Trotters, the Chanhassen Dinner Theater, the Vancouver Canucks, et cetera. So about 7:30 one night I got a phone call from him. I was at the office late. And he said, “Brent, we have an opportunity. We got a phone call from Yellow Taxi Company. They’re going to be leaving Minneapolis and they’re going to sell us their franchise for $50,000.” And I said quite impulsively, which is unlike me, “That’s too much…” He wasn’t expecting that reaction. I explained. It turns out I was wrong actually…but it struck me that you could just get the authority for less on your own if they’re leaving the area.
So then he said, “Well, you know something about this field.” I said, “Well, yeah.” And I told him a little bit. So you know, the coincidence there is that I don’t think I was the first lawyer he called. I was only a young lawyer, late thirties. I think he was just going through his Rolodex, but no one else was around. I answered the phone and seemed to know what I was talking about. Then we eventually got the authority. We got the transfer of rights and then we moved into the phase for several years where we held a franchise to service the hotels in Minneapolis to and from the airport. There was another company, as well, and Sam Rubenstein was representing them. So now Sam and I were sitting at the same table and we got to know each other that way and got to like each other. Once you got to know him, he was really a wonderful, wonderful man.
So when I first met him, you know, he’s kind of rubbing me the wrong way and I’m thinking this guy’s a jerk. Fast forward 30 years and I was a pall-bearer at Sam’s funeral. There’s a lesson there. Absolutely. As I put it, one of my sayings is “Very few people have gotten in trouble for saying too little.”
So then, at the federal level, trucking had basically been deregulated in 1980. Well, what had been deregulated was the entry requirements but not something known as the “filed rate doctrine,” which was a legal principle enforced, by the U.S. Supreme Court very rigidly. The motor carrier had to have established rates. They had to be put on file with the ICC and they could not deviate from them for any reason.
When the industry was deregulated, people remembered that meant no more operating rights. And in fact, there was a big trade association meeting in Washington DC where one of the ICC commissioners got up and told the room, “Gentlemen, go about your business as if we don’t exist.” Which actually wasn’t quite true because the filed rate doctrine hadn’t been repealed. So then what happened in the mid 80’s, the bankruptcies started. All these people entered the field thinking that you could just buy a truck and be a trucking company but there’s a lot more to it than that. And the regional carriers, the people that had been operating in the regulated environment, couldn’t figure out how to compete in a free market. They over-expanded and so on. In a relatively short time frame, there were 7,000 motor carrier bankruptcies.
Then, a gentleman by the name of Ash, as I recall, with a company called McLean, realized that people had stopped filing their rates in tariff form properly. So a cottage industry sprang up in these truck company bankruptcies. Bankruptcy trustees and a series of collection agencies suing shippers, the customers, for the difference between the negotiated rate and the filed rate.
And there was a fellow, by the name of William Augello, who was the Executive Director of the Transportation Logistics Council, which had a different name then. He set up Joint Defense Groups as a way to economically defend these cases. So a suit could have been for as little as $400 — hard to hire a lawyer for that, of course — but we pooled the defendants, we’d put them in groups. Whatever case came up first, we’d go full-bore on the briefs because the position was supported by all the members. Keep in mind some, some were $400 claims, but Ford Motor Company got sued by a company called Riss Intermodal for $8,000,000. So it wasn’t always trivial amounts.
The ICC estimated that the total amount of the difference between the negotiated rates and filed rates was approximately $7 billion and the collection lawyers had it on a third. It was very hard fought. The collection lawyers early on took a very firm stance.
I’m jumping ahead of the story. So Bill Augello was defending these cases and then what happened is I got a call one day from Sam Rubenstein who said, “Brent,” — and I followed these bankruptcy battles a little bit in a magazine called Traffic World but I wasn’t really involved — “you’re going to get a phone call from a guy named William Augello.” This would’ve been in ’89. Sam talked in very staccato fashion. “He’s big. He’s really big. Brent…He’s big.” I remember telling my partner, Laurel Learmonth, about the conversation. She said, “He must be pretty big…” In any event, I got the call and I became a local counsel for Bill. We hit it off. His background was more regulatory matters and cargo claims, like freight loss and damage, and I had more of the broader litigation experience.
So I helped Bill Augello with these cases. I introduced a computer into the deal.
ML: How did you get this computer savvy so early on?
Brent Primus: I had my first college-level computer course, non-credit, in 1963. So I got the drift early on. I have an organizational nature, a process nature.
ML: What’s your advice to someone who is now a young person thinking about law school?
Brent Primus: Well, go to law school, if…it’s the same advice my brother used to give… go to law school if it seems to be, you know, based on your reading and movies and all that, it seems like something you’d like to spend your life doing. If you’re interested in making a lot of money, then don’t go to law school. If you see a rich lawyer, chances are it’s because he’s taken money from the practice and bought apartment buildings or incorporated 3M or something like that.
ML: And if there were an area of the law that you could change?
Brent Primus: Oh, I don’t know. It’d be nice if we could have some more oversight on these carriers so they would not give customers bogus denials on legitimate claims, taking the position: “If you don’t like it come sue us,” knowing customers can’t. Back in the day the Interstate Commerce Commission wouldn’t tolerate that. But the trend for the last 40 years has been less and less regulation and we’re not going to go the other way.
Two more things you might want to explore is my other practice area, which is elder law and then also my class action case I handled in the mid-90’s which resulted in me getting the Transportation Lawyer of the Year award.
ML: Let’s start with elder law. When did you get involved in that and what does that mean?
Brent Primus: Elder law is the phrase that people use for things like what we used to call probate and trust. It can be estate planning. But the way that worked was another coincidence. My Dad happened to be acquainted with Probate Judge Melvin Peterson, now deceased, and one day in ’89 or so, I got a phone call from him. He had set up a panel of attorneys to represent people who are the subject to a petition for guardianship or conservatorship. Because that involves taking away a person’s civil liberties, under the case law and subsequently a statute, they’ve got to have a lawyer. So it’s analogous to a public defender though not quite the same. So I served on that panel for 18 years and handled hundreds of those cases. And, as a result of that, as part of that, there’s an organization nicknamed, “MAGIC,” standing for Minnesota Association of Guardianships and Conservatorships. Beginning many years ago, late nineties, I started a column in its publication, twice a year or so, called “The Conservators Briefcase”, which is a summary of recent case law affecting that area. I signed up for that as I thought it’d be the easiest way for me to stay current because other lawyers would send me cases they heard about that I otherwise would not have bumped into. So I write that column. And then speaking of writing, I also write a column for Parcel magazine called “Parcel Counsel” [http://www.transportlawtexts.com/parcel-magazine.php]. That’s like six times a year.
ML: Then you also mentioned the 1990’s class action?
Brent Primus: Yes, the class action was this. It was a “filed rate case.” I’m going to keep it real short. There was a company called Churchill Truck Lines that closed their doors and then started suing shippers for “undercharges.” But we had a theory, they weren’t entitled to these undercharges. “We,” in this case, was myself and my friend Bruce Hocum, who acted as the expert witness there. We ran an ad in the paper looking for someone, “Have you been sued by Churchill Truck Lines?” And a fellow by the name of Leo Gray at Apple Valley Ready-Mix called in response to that ad. He and another company became the class representatives and we brought this class action lawsuit seeking refunds. It was like the reverse of the filed rate doctrine, seeking a refund of overcharges, which they were entitled to do. They were seeking the undercharges in alphabetical order. They had gotten up to about “M” and they had collected about $2.8 million and Judge James Rosenbaum made them divulge that and he also made them volunteer and provide to us with a list of all the people. These would be the potential class members.
We then moved for an injunction to restrain them from collecting any more sums. Rosenbaum granted that injunction. It became known as the Churchill Injunction [915 F. Supp. 1025 (D. Minn. 1996]. That’s what I got the Transportation Lawyer of the Year Award for. Later that case settled for 50 percent, $1.4 million. Now to me, the beauty of the case obviously was — Oh, and I have to give him credit where credit is due: we associated with Carl Kambrone for the class action law expertise — to me the beauty of it was we had articulated our complaint so well. The law was clear and the facts were clear.
We had a multimillion dollar class action lawsuit that settled and we never took a single deposition, never sent interrogatories, or requests for production of documents. The only discovery was Judge Rosenbaum telling them they had to tell us the names of the people and the amounted collected so far.
ML: Settlement of a multimillion-dollar class action without a single deposition or any written discovery is impressive.
Brent Primus: It’s got a certain intellectual beauty to it in my point of view. Nowadays, the first thing everybody does is start serving deposition notices. So what I tell associates or law clerks, “Well, what is it you want to know that we can’t find out on our own?”
[Previous Minnesota Litigator Profiles of Minnesota litigators: Emily McNee, employer-side employment litigator, Anna Voss, Civil Chief of the United States Attorney’s Office, Kenneth U. Udoibok, fighting for justice from Nigeria to Minnesota and beyond, Bill Tilton, 40 year St. Paul civil rights lawyer, Kristine Kubes, advisor and litigator for construction professionals, Rachhana Srey, plaintiff’s side wage-and-hour litigator, Eric Nilsson, banking/lending litigation, Roshan Rajkumar, products liability defense, Jerry Alcazar, products liability defense, Liz Kramer, Arbitration Maven/Author of Arbitration Nation, Tim Nolan, Lawyer/poet, Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies), Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice (and later appointed to the Ramsey County District Court bench), Kevin Dunlevy, Minnesota real property authority, Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“, Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer,Karin Ciano, free-lance “federal sherpa,” Jerry Alcazar, products liability defense.]
[For Minnesota Litigator profiles of judges, see: Retired U.S. Magistrate Judge Jeffrey J. Keyes, Hennepin County Judge SusanRobiner, Retired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief JudgePeter Cahill, Hennepin County Judge Thomas Fraser.]