Fredrikson & Byron, P.A. - David Lillehaug

Introduction - Litigation Bio

Former U.S. Attorney David Lillehaug is well-recognized in the Minnesota legal community. His practice focuses primarily on complex litigation, but he assists clients on a variety of sensitive matters at the intersection of law, business, and government.

David has represented Fortune 100 corporations, the University of Minnesota, tribal governments, the Minnesota House of Representatives, and public officials (including three U.S. Senators). In 2011, he was Special Counsel to the Governor in the constitutional litigation arising out of a government shutdown. In 2009, he tried and won a seven-week U.S. Senate election contest trial, for which he was chosen an “Attorney of the Year” by Minnesota Lawyer magazine.

As part of the firm’s White-Collar & Regulatory Defense Group, David deals frequently with the U.S. Attorney’s Office, the Minnesota Attorney General’s Office, state regulatory agencies, and county and city attorneys. He has considerable experience litigating False Claims Act cases and in leading internal investigations.

Having been the founding chair of the Minnesota State Bar Association’s Construction Law Section, David continues his long-established construction law practice. He represents building owners, contractors, and design professionals in lawsuits, arbitrations, and governmental proceedings.

Pro bono work will always be an important part of David’s practice. From 2003 to 2008, on behalf of numerous religious institutions, he won three constitutional lawsuits regarding firearms laws.

Education

Harvard University, J.D., cum laude, 1979
Augustana College, B.A., summa cum laude, 1976

Bar Admissions

Minnesota, 1979
U.S. District Court, District of Minnesota, 1979
U.S. Court of Appeals for the Eighth Circuit, 1981
District of Columbia, 1981 (inactive)
U.S. District Court, District of Columbia, 1982 (inactive)

Practice Areas

Representative Experience

Complex Litigation

Government Shutdown Litigation. Special Counsel to the Governor in connection with Minnesota’s 2011 government shutdown. Representation included constitutional litigation before the Minnesota Supreme Court, six injunction motions before the Ramsey County District Court, and seventy Special Master hearings before the former Chief Justice of the Minnesota Supreme Court.
Pet Food Contamination Cases. Acted as litigation general counsel for international pet food manufacturer in connection with massive product recall due to contaminated ingredient from China. Representation included developing and implementing litigation strategy; supervising defense of over 100 consumer class actions; negotiating $24 million MDL settlement; settling customer cross-claims and insurance coverage issues; and defending FDA investigation.
School Design Litigation. Attorney for a national architectural and engineering firm, on claims arising out of the design and construction of an $85 million high school. Claims of $7 million were dismissed through motion practice. After a positive verdict in a summary jury trial, the remaining claims were settled just before a scheduled seven-week trial. Legal issues in the case included: Minnesota’s expert opinion disclosure statute, contractual liability limitations on change orders, and novel claims under trade practices statutes.
Pipeline Design Arbitration. Attorney for the owner of a natural gas pipeline, on claims for professional negligence against a pipeline engineering company. After three days of arbitration, the claims were settled confidentially. Legal issues in the case included: delegation of design issues to contractors; inspection responsibilities of engineers and contractors; the legal effect of warnings contained in soils reports; and the collateral estoppel effect of an arbitrator’s holdings and award in a previous arbitration between owner and contractor.
Chemical Plant Claim. Attorney for the owner of a chemical plant managed by a major commodities production company. Client made a multi-million dollar claim for damages, including lost production and repair costs, arising out of equipment breakdowns and vapors emitted by the manager’s adjacent plant. The claim was settled through negotiation by amendment to the management contract, worth at least $2.5 million to the client.
Parkland Easement Arbitration. Attorney for suburban park district seeking post-taking compensation for permanent and temporary pipeline easements through a park reserve. Pipeline construction destroyed or damaged 4,000 trees and shrubs. After two weeks of hearings, the arbitrator awarded $2 million, including approximately $300 per tree. The award was 230% more than the amount deposited by the pipeline company (based on its appraisals) prior to the taking.

Government/White-Collar/Investigations

University of Minnesota Independent Investigations. Retained by the University’s General Counsel to perform independent investigations in sensitive matters. Lengthy privileged reports were prepared that served as the basis for legal advice to the President and the Regents.
Indian Tribe Investigations. Retained by two tribal governments to perform independent investigations. The first related to real estate development and construction, and the second related to a $2.4 million loan. The first investigation resulted in federal criminal charges. Both investigations led to changes in governance.
Defense of Various Government Investigations. Successfully represented clients in non-public investigations by the United States Department of Justice, the Minnesota Attorney General, the Minnesota Department of Commerce, the Minnesota Department of Health, Minnesota OSHA, the Minnesota Campaign Finance Board, several County Attorneys, and the Minneapolis City Attorney.
Minneapolis Police Department Investigation. Attorney for the Deputy Chief of the Minneapolis Police Department responding to an investigation commenced and publicized by a new Chief of Police. Representation included defending the Deputy Chief in the Bureau of Criminal Apprehension investigation, countering the Chief’s media statements, and responding to a City personnel investigation. The Deputy Chief was completely vindicated.
United State ex rel. Johnson-Pochardt v. Rapid City Regional Hospital, U.S. District Court, District of South Dakota, 252 F.Supp.2d 892 (D.S.D. 2003). Attorney for the relator in a health care False Claims Act case venued in the U.S. District Court for the District of South Dakota. The case settled for $6.5 million. In awarding the relator a 24% share of the recovery, out of a possible 25%, the Court stated that the client’s disclosure of the fraud was “nearly flawless” and that “her attorneys’ crucial contributions” had led to a record-breaking settlement.

Selected Publications & Presentations

“The DFL's man on the inside,” Capitol Report, August 18, 2011
“The Big Hammer: the Federal and Minnesota False Claims Acts,” Minnesota State Bar Association Construction Law Section, June 2011
“In-House Counsel in Crisis: Compliance, Ethics and Privilege,” Minnesota CLE Employment Law and Health Law Institutes, May-June 2011
“The Federal Death Penalty,” University of Arizona and University of St. Thomas Law Schools, March 2011
“Disclosing Expert Opinions on Design/Construction Defects,” National Business Institute, February 2011
“Advanced Internal Investigations,” Minnesota Chapter, Association of Corporate Counsel, October 2010
“The New Minnesota False Claims Act,” Minnesota City Attorneys Association, June 2010
“The State of Minnesota Opens a New Front Against False Claims,” FredALERT: White Collar & Regulatory Defense, January 2010
“Doing Business With the State? Heads-Up on the New Minnesota False Claims Act,” FredNEWS: Construction, December 2009
“U.S. Supreme Court Update 2008,” Thomson University, August 2008
“Watergate Revisited: the Role of the Lawyers,” University of St. Thomas School of Law, April 2008
“Food Contamination Criminal Investigations/Prosecutions,” Mealey’s Product Recall and Food Liability Conference, April 2008
“Managing the Risk of Crime and Fraud in the Construction industry,” National Business Institute, February 2007 and February 2008
“The Federal False Claims Act and Related Statutes,” Minnesota State Bar Association Construction Law Section, September 2006
“Employee Embezzlement: Prevention, Detection, and Cure,” Fredrikson & Byron’s White Collar & Regulatory Defense Focus Newsletter, July 2006
“Criminal Liability in the Construction Industry,” Minnesota State Bar Association Construction Law Section Symposium, June 2005
“The Role of Construction Lawyers in the Public and Private Sectors,” Minnesota State Bar Association Construction Law Section Symposium, November 2004
"Criminalizing Construction?" Fredrikson & Byron's White Collar & Regulatory Defense Focus Newsletter, November 2003
“Fraud and Abuse Enforcement,” American Bar Association Healthcare Summit, November 2003
"The Criminal Employee: Will the Company be Indicted, Too?" Fredrikson & Byron's White Collar & Regulatory Defense Focus Newsletter, January 2003

Professional Activities

United States Attorney for the District of Minnesota, 1994-1998
Member, White-Collar Crime and Native American Issues Subcommittees of the U.S. Attorney General’s Advisory Committee, 1994-1998
Ex-officio Board Member, Minnesota County Attorneys Association and Urban County Attorneys Association, 1994-1998
Board of Directors, Federal Bar Association Minnesota Chapter, 1995-1998
Founding Chair, Minnesota State Bar Association (“MSBA”) Construction Law Section, 1989-1991
Governing Council, MSBA Civil Litigation Section, 1987-1990

JUDICIAL CLERKSHIP

U.S. District Court Judge Harry MacLaughlin, District of Minnesota, 1979-1981

Honors & Distinctions

“AV Preeminent” rating by Martindale-Hubbell
Listed in Who’s Who in American Law, Who’s Who in America, Who’s Who in the World, The Best Lawyers in America, and Minnesota Super Lawyers
Outstanding Alumnus Award, Augustana College, 2006
Minnesota State Bar Association Author’s Award, for article on settlement agreements in complex civil cases, 1990
Mondale Fellow, Hubert H. Humphrey Institute of Public Affairs, University of Minnesota, 1990-1991

Community Involvement

Non-Profit

Board of Directors, Saint Paul Chamber Orchestra, 2010-present
Board of Trustees, Augustana College, 2010-present
Advisory Council, Humphrey School of Public Affairs, University of Minnesota, 2010-present
Advisory Council, American Constitution Society Minnesota Chapter, 2004-2009
Board of Directors, Growth & Justice, 2002-2008
Midwest Leadership Council, Lutheran World Relief, 2006-2010
Chair, Crosstown Conference, Minneapolis Synod, Evangelical Lutheran Church in America, 2006-2007
Church Council, Edina Community Lutheran Church, 2001-2003
Board of Directors, Minnesota Justice Foundation, organization supporting pro bono clerkships for law students, 1986-1989

Political

Named one of Top 100 Minnesota Influencers, Campaigns & Elections, 2010
Attorney for, and senior advisor to, U.S. Senate campaigns: Al Franken, 2008; Amy Klobuchar, 2006; Paul Wellstone, 2002
Senior advisor to Walter Mondale, U.S. Senate campaign, 2002
Chair, Minnesota DFL Party Convention, 2012, co-chair 2006, 2004, 2002
Traveling issues aide and executive assistant to Walter Mondale, presidential campaign, 1983-1984

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