Longtime litigator's aviation specialty will land him before U.S. Supreme Court

  • Article by: DAVID PHELPS , Star Tribune
  • Updated: September 29, 2013 - 6:45 PM

Longtime litigator Donald Chance Mark has an aviation specialty that soon will land him before the U.S. Supreme Court.

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Eden Prairie attorney Donald Chance Mark’s office reflects a career with a wide range of clients, often from the airline and professional sports arenas.

Photo: GLEN STUBBE , Star Tribune

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The aviation pedigree of Eden Prairie attorney Donald Chance Mark Jr. is beyond reproach. 

His dad was a pilot for Northwest Airlines for 33 years; his mom was a Northwest flight attendant back in the days when a nursing degree was part of the job description.

Mark represented TWA in a headline-grabbing case known as “the plane that fell from the sky.” He was in on the ground floor of the founding of a small leisure carrier in the early 1980s that called itself Sun Country Airlines. He successfully represented Northwest Airlines in a case in which the airline’s dress code for employee passengers and their relatives was upheld after a Muslim woman wearing traditional garb claimed it was discriminatory to be told by a customer service supervisor to dress as if she were going to “church.”

Mark’s most recent aviation client is Air Wisconsin Airlines, in a disputed case involving aviation security that has made its way to the chambers of the U.S. Supreme Court and is set for oral arguments on Dec. 9.

With 40 years in the profession of law, Mark, 66, has handled a variety of high-profile cases, from utility failures to contract disputes involving sports figures.

But, he likes to say, “Aviation is a specialty.”

Supreme Court case

The Supreme Court case involves a defamation lawsuit brought against Air Wisconsin by a former pilot who claims he was wrongly singled out as a potential security risk to federal aviation officials after he failed a simulated flight test and had a heated exchange with the simulator instructors.

Concerned about the pilot’s state of mind — he also had a federal permit to carry a handgun aboard commercial aircraft — Air Wisconsin officials at the company’s headquarters in Appleton, Wis., called the Transportation Security Administration (TSA), whose agents escorted the pilot off a flight home to Denver from the simulator school in Virginia.

The pilot sued and won a $1 million-plus judgment in compensatory and punitive damages from a jury in Colorado on the grounds that he was defamed by Air Wisconsin’s actions.

Air Wisconsin appealed at the state trial court and the appeals court level and eventually lost in the Colorado Supreme Court and appealed again to the U.S. Supreme Court, which agreed in June to hear the case.

“This affects everybody in the flying public,” Mark said in an interview from his Eden Prairie office. “We need to have a comfort level that any suspicious activity will be reported and that the reporter will have immunity for doing so if it is without malicious intent.”

Indeed, the U.S. solicitor general and the Department of Homeland Security filed a friend of the court brief on behalf of Air Wisconsin arguing that the Colorado rulings in the case “may chill other air carriers from timely providing the government with critical information about threats to aviation security.”

Attorneys for the dismissed pilot, however, contend that Air Wisconsin should not be granted immunity for making “material falsehoods” about the mental state of their client.

“Our position is they had no basis to make that statement,” said Scott McGath, attorney for ex-Air Wisconsin pilot William Hoeper. “They conveyed to the TSA that Mr. Hoeper was a threat when Air Wisconsin had no reason to believe he was a threat.”

Mark won’t actually argue the case in front of the Supreme Court justices — an appellate specialist he selected will do that — but he will be at the petitioner’s table in the courtroom.

It’s pretty heady stuff for a kid who went to Minnetonka High School, then worked as a lifeguard and for the Mound sewer department before going to law school.

Respected by his peers

A 1972 graduate of the Vanderbilt University School of Law, Mark, who is also a student pilot, spent the first 27 years of his legal career in the Minneapolis offices of the law firm Meagher & Geer doing insurance defense work including product liability cases and medical malpractice.

He gained the respect of his peers and even his opposing counsel for the quality of his legal work.

“It was hard to get mad at him, but he frustrated the hell out of me,” said Dick Hunegs, a plaintiff’s attorney in the Twin Cities for more than 60 years. “I’m old-fashioned. It was a much different environment, but you gained respect for one another.’’

During Mark’s early years he represented clients like NSP in the Commodore Hotel explosion in St. Paul and TWA in a case involving a Boeing 727 flight between New York and Minneapolis that suffered a severe mechanical malfunction and plummeted nearly 35,000 feet in 44 seconds before the flight crew could regain control of the jetliner.

“Boeing wanted to blame the crew, but these guys were able to defend themselves and never changed their story,” Mark said. “I believed in them.”

There were no fatalities in the near-disaster but a number of passengers suffered injuries, and a subsequent trial in Hennepin County District Court found that TWA was 70 percent liable for the crash while Boeing was 30 percent liable. Damage settlements to the passengers averaged about $30,000, with the highest at $250,000.

In 1982, Mark was summoned to a hangar at Minneapolis-St. Paul International Airport where he met with 13 ex-Braniff employees — 11 pilots and two flight attendants — who had leased a 727 aircraft and wanted to start an airline. Mark took the proposition to a colleague at Meagher & Geer, Robert Fafinski, who was better versed in business law. They completed the necessary legal work to put Sun Country Airlines in business. Today, Fafinski sits on the Sun Country board of directors.

In 1999, Mark, Fafinski and Kevin Johnson went out on their own. Today their firm has 27 attorneys and a staff of 21 employees. Its conference rooms at the Eden Prairie headquarters are named after such famous aviators as Amelia Earhart and Charles Lindbergh.

But the clientele extends well beyond the wild blue ­yonder.

‘I can pick and choose’

In recent years, Mark has represented former Vikings place-kicker Gary Anderson in contract negotiations with other NFL teams.

In 2010, Mark won a $1 million settlement on behalf of Jimmy Williams, a would-be Minnesota Gophers assistant basketball coach whose hiring by head coach Tubby Smith was overturned by higher-ups in the university’s administration. (The award was overturned by the Minnesota Supreme Court last year.)

Mark also has a discrimination lawsuit pending on behalf of former University of Minnesota women’s golf coach Katie Brenny, who claims she lost her job because of her sexual orientation. That case is set for trial in November.

“I’m at a point where I don’t have to take every case. I can pick and choose what I want to take to trial,” Mark said. “I have the opportunity to try interesting cases and meet interesting people.”

His cluttered office reflects Mark’s take on his career. The walls are laden with photos of Mark with clients, plus framed magazine covers of athletes he’s represented and no shortage of model airplanes and metal debris that once were pieces of evidence in cases gone by.

“Don is a trial lawyer’s lawyer,” Fafinski says of Mark. “He’s a master strategist. If he can’t envision the final argument in a case, he won’t take it.”

 

David Phelps • 612-673-7269

 

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