April 21, 2018

Archives for December 13, 2012

Honorable Roger Cisneros: Overcoming Obstacles to become an Extraordinary Senator, Jurist, Community Leader, and Civil Rights Champion

Roger Cisneros has overcome tremendous obstacles. He grew up in a small New Mexico town, the son of a poor farmer. In early childhood, he helped out on the family farm, herding sheep on the barren terrain. His childhood included struggles with the English language. But he took every opportunity to read and improve himself, and as an eighth grader, he was found to have the highest IQ for his age group in Taos County. He earned many medals in school, both as a scholar and as a track star.

Cisneros faced racism as he served his country in the Army Air Corps in the 1940s. During his deployments overseas on crowded military ships, he was often requested to change places with other soldiers because some did not want to be in the company of “blacks.” Under the Okinawan sun he became very dark and when he returned to his parents’ dairy farm in Longmont, Colorado, he was refused service in the local café that allowed “white trade only.”

Not fazed by the racism he encountered, Cisneros obtained a business degree from the University of Denver. After graduating and going to work for the federal government, he realized there were very few Hispanic lawyers, so he enrolled in the Westminster Law School and obtained his law degree in 1957. He became one of only five Latinos who practiced law in Colorado, and he had a successful law practice for many years. In 1964, he was elected to the Colorado State Senate, where he served his Denver district for 12 years. In 1978, Governor Richard Lamm appointed him to the State of Colorado District Court where he served in the domestic, civil, and criminal divisions. Judge Cisneros retired in 1986 but continued his service for three more years as a senior judge.

Throughout his professional life he has served on many civil boards and organizations. In addition to serving on the Denver Commission on Community Relations, the National Advisory Board of the Small Business Administration, and the Colorado Anti-Discrimination Commission, Judge Cisneros was a founder of the Marlee Garfield Improvement Association, founder of the Board of the Mexican American Legal Defense and Education Fund, and founder of the Latin American Research and Service Agency (LARASA). He also served as president of the Latin American Educational Foundations and the United Latin American Organization.

Judge Cisneros also served on The Colorado Olympic Commission for the 1976 Winter Olympics and the boards of the Denver YMCA, the Denver Art Museum, Girls Club Inc., the West Side Action Council, and The Southwest Youth Service Board. He was appointed by the Denver School Board to serve on the Denver Equality of Education Opportunity Committee, and was appointed by Federal Judge William Doyle to the Community Education Council to supervise Denver Schools’ integration program. He has served on the Colorado Board of Law Examiners, as Vice President of the Denver Bar Association, as Chairman of the Continuing Legal Education Committee, and as a member of the Governor’s Commission on Child Support. In honor of Judge Cisneros’ dedication to the community, a jury room inside the new Denver Justice Center was named after him in 2009.

CBA-CLE is hosting the Colorado Legal Legend Series, and Tuesday, December 18, is a rare opportunity to hear from Judge Cisneros in person. He will be joined by his good friend and colleague, Federico Peña. He will share his ethical and professional words of wisdom—as well as personal and practical advice that has earned him the reputation as one of Colorado’s most respected legal and community leaders. He is truly a Colorado Legal Legend.

CLE Program: Colorado Legal Legends: A Fireside Chat with the Honorable Roger Cisneros

This CLE presentation took place on Tuesday, December 18, at 12:00 p.m. (noon). Click here to order the homestudy.

Tenth Circuit: Clickwrap Agreements That Gave Notice of Terms and Meaningful Opportunity to Assent Enforceable

The Tenth Circuit issued its opinion in Hancock v. AT&T on Tuesday, December 11, 2012.

Plaintiffs filed a class action complaint on July 30, 2010, in the U.S. District Court for the Western District of Oklahoma. They asserted claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961, et seq., as well as various claims under state law. Plaintiffs are individuals who purchased U-verse in either Florida or Oklahoma. U-verse is the brand name for a telecommunications service that includes digital television (TV), voice-over Internet protocol (Voice), and high-speed Internet (Internet). Plaintiffs sued a number of defendants, including AT&T Operations, Inc., Southwestern Bell Telephone Company, and BellSouth Telecommunications (collectively Defendants). Southwestern Bell and BellSouth are AT&T regional affiliates who install and provide U-verse services for customers in Oklahoma and Florida, and AT&T is ultimately responsible for U-verse in those areas.

The district court dismissed Plaintiffs’ claims based on forum selection and arbitration clauses in the U-verse terms of service. The TV/Voice terms of service dictated a forum of courts in a Texas county and the Internet had a forced arbitration clause. Defendants use “clickwrap” agreements as part of their standard practice for customer acceptance of the TV/Voice and Internet terms. Clickwrap is a commonly used term for agreements requiring a computer user to “consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with [a] . . . transaction.” According to Defendants’ standard practice, TV/Voice customers were given printed copies of terms of service before agreeing to those terms on a technician’s computer prior to installation. Internet customers agreed online.

Plaintiffs argued that no contract was formed because “Defendants’ clickwrap agreements do not give customers notice of and a meaningful opportunity to assent to the U-verse terms of service.” The Tenth Circuit disagreed and found the clickwrap agreements to be of the type that are routinely upheld and found them valid and enforceable under Oklahoma and Florida law.

Plaintiffs also argued that the district court failed to draw reasonable inferences and resolve factual disputes in their favor as required when deciding a motion to dismiss for improper venue under F.R.C.P. 12(b)(3). The Tenth Circuit found that Plaintiffs failed to sufficiently rebut AT&T’s FRE 406 declarations so the court’s failure to hold an evidentiary hearing was not an abuse of discretion. Despite the fact that no declarations were provided from employees of the Bell companies who actually provided the terms of service to the customers, the court held that “the AT&T declarants demonstrated personal knowledge of the standard practice designed for regional affiliates, as well as personal knowledge that U-verse customers such as Plaintiffs generally accept terms of service through the standard practice. This was enough to raise an inference that the standard practice was followed when Plaintiffs obtained U-verse service and shifted the burden to Plaintiffs to raise a genuine factual dispute.” The Tenth Circuit affirmed the dismissal of Plaintiffs’ claims.

Tenth Circuit: Unpublished Opinions, 12/12/12

On Wednesday, December 12, 2012, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Monarque v. Garcia

United States v. Jones

 Burke v. Corrections Corp. of America

Gallego-Arroyave v. Holder

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 12/11/12

On Tuesday, December 11, 2012, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

United States v. Villagrana

Cathey v. Jones

United States v. Stover

Foust v. Jones

United States v. Race

United States v. Chatburn

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.