The closing arguments were nearly done in the fight between the state of Minnesota and the trustees overseeing the charity that owns Bremer Financial Monday when the presiding judge expressed the one thing no one disputes.
"It's a dysfunctional situation," Ramsey County District Judge Robert Awsumb said. No one today, he added, would put a charity in charge of a bank.
But that's what Otto Bremer did before his death in 1951 — and for decades the bank he started has funneled its profits to the Otto Bremer Trust, which gives them to charities in Minnesota and nearby states, just as he wanted.
Congress in the late 1960s prohibited charities from owning businesses, but Bremer executives forged a workaround in the late 1980s that, with state oversight, worked for another 30 years.
Then in 2019, with bank mergers rising across the U.S., the trustees who lead the charity disagreed with Bremer Financial executives over whether and how to sell the bank, which is Minnesota's fourth-largest. Lawsuits followed.
The Minnesota Attorney General's office stepped into the dispute in 2020 and eventually sued to toss out the trustees. That suit took precedent over the others and led to the first evidentiary trial in the battle, which unfolded in Awsumb's courtroom over four weeks last fall.
On Monday, the two sides returned for closing arguments, which, as with testimony, lasted longer than expected.
The trustee's attorney, Mike Ciresi — the Minneapolis litigator best known for his work on behalf of the state in tobacco litigation in the late 1990s — opened with an argument he said would take a couple hours, but lasted nearly four.
When Carol Washington, the lead attorney for the attorney general's office, said she expected her final argument to last three hours, Awsumb mentioned they could look for a date in March to wrap up. Washington replied she'd wrap up by day's end.
Minnesota Attorney General Keith Ellison, who was on hand for opening arguments, showed up again for Washington's close.
As they did throughout last fall's trial, the three trustees whose jobs are on the line — Brian Lipschultz, Dan Reardon and Charlotte Johnson — sat near the front of the courtroom. Their face masks mostly covered up reactions.
The attorney general's office is not contesting the right of the trust to sell the bank. Rather, it argued that trustees' move to sell the trust's shares was rushed and reckless.
But Ciresi told Awsumb that each of the state's allegations against the trio had been proven false. "There has been no breach of fiduciary duty," he said.
He added that the trustees decided to push for a sale months after a merger of equals was first explored by Bremer Financial itself. "There was nothing rushed about this," said Ciresi. "It was an extensive analysis."
In her closing arguments, Washington said the case was not about the trustees, or about the bank, but about what's in the best interest of the beneficiaries of the trust.
She argued that the trustees repeatedly put their own interests above those of the trust, such as by appointing relatives as successor trustees and paying themselves a separate investment advisory fee that she said was repetitive with their compensation.
"We're not asking the court to choose sides," she said. "We're asking the court to choose the trust."
That, she said, is the only path out of this messy situation else the two sides will be embroiled in a "literal lifetime of litigation."
Awsumb questioned Washington more than Ciresi, particularly on attempts by the trustees to sell shares in the bank. As the day's hearing neared an end, the judge said to her, "I appreciate you putting up with me playing devil's advocate."
He noted that he has a lot of material to wade through in the coming weeks, and joked earlier in the day that his order may be his first to have a table of contents with it — a nod to the volumes of exhibits and filings in the case.
Awsumb said he hoped to have a decision by the end of February.
"You make my job really hard," he said, after praising the attorneys for spirited and detailed arguments.