Citizens Community Federal v. Silver, Freedman & Taff, L.L.P. et al
Filing
129
ORDER directing the parties to respond regarding plaintiff's ability to rely on defendants' alleged violation of 12 C.F.R. § 563.39 as a basis for liability at trial. The parties should be prepared to discuss this issue at the Final Pretrial Conference on 4/10/2014. Written responses are due 4/14/2014. Signed by District Judge Barbara B. Crabb on 4/8/2014. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CITIZENS COMMUNITY FEDERAL,
ORDER
Plaintiff,
12-cv-648-bbc
v.
SILVER, FREEDMAN & TAFF, L.L.P.,
BARRY P. TAFF, P.C. and NANCY M. STILES, P.C.,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil action, plaintiff Citizens Community Federal contends that defendants
Barry P. Taff, P.C.; Nancy M. Stiles, P.C.; and Silver, Freedman and Taff, L.L.P. were
negligent and breached their fiduciary duties when they drafted employment contracts
between plaintiff and its then-CEO James Cooley. In its motion for summary judgment,
plaintiff argued that defendants breached their duty of care because the agreements, as
drafted, violated a federal regulation, 12 C.F.R. § 563.39. Defendants have requested the
inclusion of a jury instruction on this regulation. Dkt. #96. Plaintiff objected to the
instruction and suggested its own version. Dkt. #111. However, before I can adopt an
instruction on this topic, the parties must explain how the regulation is relevant to the case.
As explained in the summary judgment opinion, “[t]he violation of a statute or an
ordinance does not automatically impose civil liability.” Holt v. Hegwood, 2005 WI App
257, 13-14, 287 Wis. 2d 853, 864-65, 708 N.W.2d 21, 26-27 (footnote omitted). Instead,
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plaintiff must show that “(1) the harm inflicted was the type the statute was designed to
prevent; (2) the person injured was within the class of persons sought to be protected; and
(3) there is some expression of legislative intent that the statute become a basis for the
imposition of civil liability.” Id. (quoting Antwaun A. ex rel. Muwonge v. Heritage Mutual
Insurance Co., 228 Wis. 2d 44, 67, 596 N.W.2d 456, 466 (1999)).
These are questions that must be answered by the court; they are not appropriate for
the jury. Comment, Wis. Jury Ins. 1009 (“Before giving this instruction, the trial judge must
decide whether they safety law applies to the claimed negligent act.”). As a result, I am
ordering the parties to explain why the regulation is relevant to this case. What is at stake
is plaintiff’s ability to rely on defendants’ alleged violation of 12 C.F.R. § 563.39 as a basis
for liability at trial. The parties should take care to address the three issues identified above
and support their positions with relevant authority. They should be prepared to discuss this
issue at the final pretrial conference scheduled for Thursday, April 10, 2014.
ORDER
IT IS ORDERED that plaintiff Citizen Community Federal and defendants Barry P.
Taff, P.C.; Nancy M. Stiles, P.C.; and Silver, Freedman and Taff, L.L.P. are to respond as
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described in this order by April 14, 2014.
Entered this 8th day of April, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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