David F. Herr
Of Counsel
Overview
David Herr, a member of Maslon's Litigation Group, is a highly regarded appellate lawyer and complex case litigator. He is frequently sought out to provide practical and sophisticated advice on how to resolve difficult, multi-party disputes in trial courts and arbitral forums as well as in the appellate courts.
David is past president of the American Academy of Appellate Lawyers, past president of the Academy of Court Appointed Masters, and regularly argues cases in the Minnesota appellate courts and the Eighth Circuit Court of Appeals. He annotates the Federal Judicial Center's Manual for Complex Litigation, published and distributed nationally by Thomson West.
Experience
- Commonwealth Land Title Ins. Co. v. Historic Ivy Tower, LLC, et al.,
A13-1621 (Minn. 2014). Maslon provided appellate counsel in this
million-dollar dispute arising from the refinancing of a commercial development project. - Curtis v. Altria Group, Inc. and Philip Morris, Inc., A10-0215 (Minn. 2012). The Supreme Court rejected an effort by plaintiffs to bring a private class action for damages under the Minnesota Consumer Fraud Act following litigation and settlement of claims by the Attorney General.
- McCaughtry v. City of Red Wing, 808 N.W.2d 331 (Minn. 2011). The Supreme Court held that a challenge to the constitutionality of a rental inspection ordinance presented justiciable controversy. Maslon represented friends of the Court whose position was adopted by the court.
- U.S. Bancorp v. Mitgang, No. A09-1472 (Minn. Ct. App., June 1, 2010). Obtained reversal of decision misconstruing recourse agreement in conjunction with multiple loans.
- Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010). Counsel for amici curiae providing constitutional law support for Governor in high-profile "unallotment" decision.
- Savig v. First Nat'l Bank of Omaha, 781 N.W.2d 335 (Minn. 2010). Established standard for garnishment of jointly owned accounts, resolving persistent problem for creditors.
- In re Kaiser Aluminum Corp., 350 Fed. App’x 775 (3rd Cir. 2009). Argued and won affirmance of $400,000,000 decision in bond indenture case.
- Clifford L. Whitaker, et al. v. 3M Co., 764 N.W.2d 631 (Minn. Ct. App. 2009). Established standards for obtaining class certification (counsel for Minnesota Chamber of Commerce, amicus curiae).
- Otter Tail Power Co. v. Surface Transportation Board, Nos. 06-1962 & 06-2412 (8th Cir. 2007). Appellate challenge to massive rate proceeding before Board involving construction of interstate railroad.
- OneBeacon Ins. Co. v. A.P.I., Inc., No. A06-1229 (Minn. Ct. App.). Appellate counsel to respondent on appeal from $60 million insurance coverage judgment.
- Commandeur LLC v. Howard Hartry, Inc., 724 N.W.2d 508 (Minn. 2006). Won reversal of dismissal of appeal for untimeliness due to court of appeals failure to recognize holiday.
- Jaenty, Inc. v. Northern States Power Co., A04-901 (Minn. 2006). Won affirmance of appellate court decision affirming dismissal of actions relating to gas explosion on statute-of-limitations grounds; argued on behalf of several separately represented respondents.
- Antone v. Mirviss, 720 N.W.2d 331 (Minn. 2006). Appellate counsel for Minnesota Lawyers Mutual as amicus curiae in case involving novel interpretation of Minnesota's statute of limitations for malpractice actions arising from drafting of antenuptial agreements.
- State of Minnesota v. Philip Morris USA, Inc., 713 N.W.2d 350 (Minn. 2006). Appellate counsel on unsuccessful challenge that health impact fee of 75 cents did not violate 1998 settlement agreement between state and cigarette manufacturers and distributors.
- MedCam, Inc. v. MCNC, 414 F.3d 972 (8th Cir. 2005). Court declined to reverse district court order compelling arbitration.
- Afremov v. AGA, numerous reported and unreported decisions. This shareholder dispute involved appellate proceedings arising from a single trial court action, applications for extraordinary writs, discretionary appeals, interlocutory appeals as of right, and petitions for further review by the Minnesota Supreme Court of numerous Court of Appeals decisions. The Maslon appellate team prevailed in all of these except one ancillary award of sanctions that was reversed by the court of appeals after the case had settled on all merits issues.
- Triple Five of Minnesota, Inc. v. Simon, 404 F.3d 1088 (8th Cir. 2005). Won partial reversal in case involving complex claims of ownership and partnership rights in Minnesota's Mall of America.
- Tuttle v. Lorrilard Tobacco Co., 344 F.3d 753 (8th Cir. 2005). Affirming dismissal of variety of tort claims.
- Broek v. Park Nicollet Health Services et al., 660 N.W.2d 439 (Minn. Ct. App. 2005). Obtained reinstatement of medical malpractice claim following dismissal on statute of limitations grounds.
- Roehrdanz v. Brill, 682 N.W.2d 626 (Minn. 2004). Obtained reversal of court of appeals decision on proper method of service of notice of removal.
- Schumacher v. Tyson Fresh Meats, Inc., (8th Cir. 2004). Obtained affirmance of class certification in expedited appeal under Fed. R. Civ.
P. 23(f). - Seed v. Astra Genstar P'ship, 2003 WL 178790 (Minn. Ct. App. 2003).
- Barbara Grutter v. Lee Bollinger, et al., and Jennifer Gratz and Patrick Hamacher v. Lee Bollinger, et al., 188 F.3d 394 (6th Cir. 1999), aff'd 123 S. Ct. 2411 (2003), intervention appeal, 288 F.3d 732 (6th Cir. 2002), rev'd, 123 S. Ct. 617 (2003) (two companion civil rights class actions).
- In re Silicone Implant Ins. Coverage Litig., 652 N.W.2d 46 (Minn. Ct. App. 2002), aff'd in part, 667 N.W. 2d 405 (Minn. 2003). Insurance coverage litigation and appeals involving over 100 parties.
- Todd v. Ortho Biotech, Inc., 138 F.3d 733 (8th Cir. 1998), cert. granted, vacated and remanded, 525 U.S. 802 (1999). Won reversal of $780,000 sexual harassment award on basis that trial court applied erroneous standard for finding liability under state and federal law.
- Minnesota Min. & Mfg. Co. v. Nishika, Ltd., 565 N.W.2d 16 (Minn. 1997). On certified questions from Texas Supreme Court relating to multimillion-dollar UCC dispute.
- In re Minnesota Asbestos Litigation, 552 N.W.2d 242 (Minn. 1996), rev'g 540 N.W.2d 896 (Minn. Ct. App. 1995). Obtained reversal of case involving unconstitutional exercise of jurisdiction over Australian corporation; David Herr served as national coordinating counsel for client.
- Independent School Dist. No. 622 v. Keene Corp., 511 N.W.2d 728 (Minn. 1994). Obtained reversal of multimillion-dollar punitive damage award, including fraud claim.
- La Societé Générale Immobiliére v. Minneapolis Community Development Agency, 44 F.3d 629 (8th Cir. 1994), rev'g, 827 F. Supp. 1431 (D. Minn. 1993). Special appellate counsel for appellant; obtained reversal of multimillion-dollar judgment.
- Seagate Technology, Inc. v. Int'l Business Machines Corp., 962 F.2d 12 (8th Cir. 1992). Represented individual appellant and obtained vacation of preliminary injunction in complex trade secrets case; cases stands as a leading case on "inevitable disclosure doctrine."
- Minnesota Mining & Mfg. Co. v. Travelers Ins. Cos., 457 N.W.2d 175 (Minn. 1990). Counsel for plaintiff Tonka Corp. on question certified from federal court. Case established standards for issuance of coverage for environmental claims.
- Uselman v. Uselman, 464 N.W.2d 130 (Minn. 1990). Counsel for appellant in seminal case establishing standards for Rule 11 sanctions in Minnesota. Won reversal of $180,000 sanction judgment; heard on accelerated review. Case remains leading sanctions case 20 years later.
Additional Qualifications
Appointed by Minnesota Supreme Court to serve as Reporter to three of its advisory committees
Trained Arbitrator, American Arbitration Association
Appointed Special Master by several courts in complex, class-action litigation
Has successfully resolved over 100 civil disputes by mediation or arbitration
Qualified neutral under Rule 114 of the Minnesota General Rules of Practice, Minnesota Supreme Court, since 1994
Honors
Attorney of the Year, Minnesota Lawyer, 2005, 2017
Senior Statesman in Minnesota for Appellate Litigation, Chambers USA, 2017-2018
Notable Practitioner in Minnesota for Appellate Litigation, Chambers USA, 2006-2016
Fellow, American Academy of Appellate Lawyers, 1993–present; President, 2004-2005
North Star Lawyer, Minnesota State Bar Association, 2012-2017 (North Star Lawyer is a designation that recognizes members who provide 50 hours or more of pro bono legal services in a calendar year.)
Francis McGovern Writing Award, Academy of Court-Appointed Masters, 2017
Trustee of the Year Award, United Hospital Foundation, 2015
Marcy S. Wallace Award of Excellence in Leadership, William Mitchell Law Review, 2009
Selected for inclusion in The Best Lawyers in America®, 1995-2019 in Bet-the-Company, Appellate Practice, and Commercial Litigation categories
Best Lawyers' Minneapolis Appellate Lawyer of the Year, 2010
Recognized on Minnesota Super Lawyers® list, 1994, 1997-2018 (Minnesota Super Lawyers® is a designation given to only 5 percent of Minnesota attorneys each year, based on a selection process that includes the recommendation of peers in the legal profession.)
Top 100 Minnesota Super Lawyers® list, 2005-2014
Master of the Bench, Warren E. Burger Inn of Court
Eighth Circuit Litigation Star, Benchmark Appellate, 2012-2013
Leading Appellate Practitioner in the Eighth Circuit, Benchmark Litigation, 2008-2011
Advocate's Award, Civil Litigation Section of the Minnesota State Bar Association, 1999
Distinguished Alumnus Award, William Mitchell College of Law, 1997
AV Preeminent, Martindale-Hubbell®