June 21, 2018

Archives for December 28, 2012

Remembering John Grund – Litigator, Mentor, Friend

JohnGrundCLE is saddened to hear of the sudden death of John Grund, a well-respected litigator and one of our favorite authors and presenters. John has written the “Torts” chapter in the Annual Survey of Colorado Law since 2000 and writes three chapters in Colorado Courtroom Handbook for Civil Trials. He has presented at many of CLE’s torts and litigation programs over the years and has always been a welcome sight at the CLE offices.

John founded and was managing shareholder at Grund • Dagner, P.C., in Denver. He practiced throughout the Rocky Mountain region, specializing in the defense of complex and multidistrict litigation and emphasizing product liability, recreation/amusement liability, common-carrier and general aviation law, hospital liability, professional negligence, and insurance law. John was an appointed member of the Colorado Supreme Court Committee on Civil Pattern Jury Instructions (since 1987) and chairs the subcommittee responsible for Product Liability, Professional Malpractice, and Insurance Bad Faith.

Well-respected and admired by his peers, John was the first recipient of the John W. Grund Excellence in Leadership Award in 2001; the first recipient of the President’s Professionalism Award in 2010; and the recipient of a DRI Service Award on March 12, 1999. He has been named a Colorado Super Lawyer, 2007-present. He has been selected to The Best Lawyers in America, in the specialty of Insurance Law, from 2007 to present.

John amazed everyone who knew him by his energy, keen intellect, wry sense of humor, and limitless curiosity for everything from the law, to sports, literature, and music. We at CLE will greatly miss his professionalism, expertise, feistiness, and the charming twinkle in his eye, but we are profoundly grateful that we could call him our friend.

Tenth Circuit: Petition for Review From Order of FDIC Denied

The Tenth Circuit published its opinion in Frontier State Bank v. Federal Deposit Insurance Corp. on Wednesday, December 26, 2012.

In 2002, Frontier State Bank (Frontier) began using a “leverage strategy” under which it funded long-term investments with short-term borrowing to generate profits from the difference (“spread”) between long-term and short-term interest rates. This strategy caused significant concern for bank examiners at the Federal Deposit Insurance Corporation (FDIC). After raising the issue with Frontier several times and being dissatisfied with Frontier’s response, the FDIC sought a cease-and-desist order to keep it from executing its leverage strategy in an unsafe or unsound manner. After a hearing, an ALJ concluded Frontier had engaged in unsafe or unsound practices and recommended a cease-and-desist order that addressed specific issues. The FDIC Board adopted the ALJ’s proposed order and Frontier filed a petition for review with the Tenth Circuit, contending the Board’s order was arbitrary and capricious.

In its order, the Board imposed a 10% tier 1 leverage capital ratio. The Tenth Circuit held that it could not review this part of the order because decision-making on a capital requirement was committed to the FDIC’s sole discretion by the International Lending Supervision Act of 1983. The court had no meaningful standard to use to review the Board’s decision. The court held that the other challenged items in the order were all supported by the ALJ’s findings and his conclusions were reasonable so the Board’s order was not arbitrary or capricious. The court denied Frontier’s petition for review.

Tenth Circuit: Summary Judgment for Employer Reversed in Workers’ Compensation Retaliation Claim

The Tenth Circuit published its opinion in Barlow v. C.R. England, Inc. on Wednesday, December 26, 2012.

Plaintiff Willie Barlow worked for C.R. England (England) as a security guard. He formed a company to provide janitorial service to England and did that in addition to his security job. He filed a workers’ compensation claim in June 2007 after being struck in the head by a heavy gate. He continued working at England in both capacities while receiving workers’ compensation benefits, but had a lifting restriction of 25 pounds. In November 2007, England terminated Barlow’s janitorial contract and fired him in April 2008 from his security guard job. The district court granted summary judgment for England on Barlow’s Title VII and § 1981 race discrimination claims, FLSA overtime claim, and wrongful discharge in violation of public policy claim based on workers’ compensation retaliation.

The Tenth Circuit affirmed summary judgment on the race discrimination claims, holding Barlow failed to establish a prima facie case. The court also affirmed summary judgment for England on the FLSA claim. Barlow alleged he had the status of employee under the FLSA while performing janitorial work and was thus due overtime pay. The court applied the economic realities test and decided Barlow was not an employee for purposes of FLSA coverage while performing his janitorial work.

The court held Barlow had established a prima facie case of retaliatory discharge from his security guard job. England’s site facility manager, Smith, fired Barlow six days after an email exchange with England’s workers’ compensation manager, who expressed frustration with Barlow’s collection of benefits. The court disagreed with England’s argument that timing did not support Barlow’s case because he had filed for benefits 10 months before termination. “Colorado law protects an employee’s ongoing receipt of workers’ compensation benefits, not just the employee’s initial filing.” The Tenth Circuit reversed summary judgment on the retaliatory discharge claim regarding the security job and remanded on the janitor retaliatory discharge claim as it was not clear if the district court applied state or federal law in determining Barlow was an independent contractor rather than an employee.

 

Tenth Circuit: Unpublished Opinions, 12/27/12

On Thursday, December 27, 2012, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Byers v. Astrue

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

Tenth Circuit: Unpublished Opinions, 12/26/12

On Wednesday, December 26, 2012, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Endriss v. Astrue

United States v. Davis

Tejeda-Acosta v. Holder

United States v. Iqbal

United States v. Jasso-Herrera

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