November 18, 2017

Archives for August 22, 2014

Running Past Our Limits Update (Part Four): Running Just Because

rhodesAnd sometimes you run just because.

Forget the inspiration, the challenges, the training techniques, the goals.

Forget researching neurology for scientific support. Forget constantly recalculating the odds, feeling like they get worse every day, wondering how much life this experiment has left in it.

Forget all that. This morning, just be that 12-year old racing a friend home after a Friday night small town football game, suddenly noticing that his feet aren’t even touching the ground and he’s leaving the fastest kid in town far behind.

Or just be that 17-year old running wind sprints on the football field and coming in just a few yards behind the fastest kid ever to play running back in your town, the holder of three conference championship records as a sophomore, and all the coaches are looking at their stopwatches and saying, “Who’s that kid in second place?”

Or just be the kid the varsity track coach pulls aside one day and says, “You’re built just like Jim Ryan — we should make a miler out of you.”

That conversation never went any further. Every now and then I wonder what might have happened if it had, and I always end up being glad it didn’t, because like Jim Ryan I might have walked off the track in the middle of a race one day.

But never mind any of that, not now. Just be who you are, right here, right now: a kid’s soul living in an adult’s body. Step on the machine and you’re out of that body, running like your younger self, running for the pure joy of it. All the struggle and trying to figure things out fade and fall far behind, like the fastest kid in town who couldn’t keep up with you. There’s nothing but the movement, nothing but the stride, over and over, churning up the invisible ground under your feet. Machine metrics? Who cares? Moving is all that matters.

Your heart swells, you’re just so grateful you can do this.

Jim Ryan had the perfect stride. I’ve studied it frame by frame. I visualize it when I run on the machine, patterning my brain, telling it, “Make me look like that.”

This past Sunday, I looked like that for two hours and ten minutes. It was only during those last ten minutes that I noticed the machine was telling me my heartbeat was up in the “high performance” category, that my right foot was starting to spaz out and turn sideways, that I was feeling tired.

It didn’t matter. I was running. My long legs were put on this planet to run; there’s no other explanation for them.

And so, this past Sunday, that’s what I did.

I ran.

Just because.

Seven years ago, Kevin Rhodes left his law practice to start a creative venture. His reflections on what happened next appear in an article about law career exit strategies in the August issue of The Colorado Lawyer (here’s the introduction, and here’s the article). His new ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned, and is available as a FREE download at iTunes, Barnes & Noble, Scribd, or wherever else you normally get ebooks. Or follow this link to the distributor’s page, where it’s available as a FREE download in all formats — phone, Kindle, as a PDF, etc. You can email Kevin at kevin@rhodeslaw.com.

Colorado Court of Appeals: Announcement Sheet, 8/21/2014

On Thursday, August 21, 2014, the Colorado Court of Appeals issued no published opinion and 51 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Jury Verdict and Attorney Fee Award Upheld in Employee Class Action

The Tenth Circuit Court of Appeals issued its opinion in Garcia v. Tyson Foods, Inc. on Tuesday, August 19, 2014.

Tyson employees were required to don and doff certain protective clothing before and after performing job duties. Tyson originally compensated only certain employees for 4 to 7 minutes of this “K-code” time, eventually changing its policy to compensate all employees for 20 to 22 minutes of K-code time. However, based Tyson’s own study, employees were uncompensated for approximately 29 minutes per shift based on the times they punched in and punched out versus actual compensation.

A group of Tyson employees brought class and collective actions against Tyson, seeking unpaid wages for pre- and post-shift activities. After a jury returned an award for the employees and an attorney fee award, Tyson unsuccessfully moved for judgment as a matter of law. Tyson appealed the district court’s judgment and denial of its motion for judgment as a matter of law. Tyson also argued the attorney fee award was excessive.

The Tenth Circuit addressed Tyson’s first argument – whether the evidence was sufficient to support the verdict – and found it was. The question for the jury was whether the K-code system had resulted in underpayment, and the Tenth Circuit found ample reason in the evidence to support the jury’s decision that it had, including Tyson’s own study. Tyson also challenged the proof of underpayment as to each class member. The Tenth Circuit rejected that challenge, because the proof was unnecessary, the jury could rely on representative evidence, and Tyson’s supporting cases are inapplicable.

The jury awarded less to plaintiffs than they requested. Tyson interpreted this to mean that the jury found some class members were appropriately compensated. The Tenth Circuit disagreed, finding the evidence supported a finding of undercompensation for all class members, and noting that Tyson’s argument was speculative.

Finally, the Tenth Circuit addressed the attorney fee award. The Fair Labor Standards Act provides a right to attorney fees to prevailing plaintiffs. The district court awarded over $3 million in attorney fees, despite the much lower awards to the plaintiffs. Because of ongoing class litigation in another county, the district court adopted a procedure whereby it reviewed the attorneys’ time records in camera, allowed disclosure of the hourly rate and number of hours worked, and allowed each side the chance to depose someone on the other side familiar with the billing process. Tyson objected to this process, instead requesting full discovery of billing records. The Tenth Circuit upheld the process and the award, finding good cause for the district court’s procedure and award.

The judgment was affirmed.

Tenth Circuit: Opinion Reissued Upon Remand from U.S. Supreme Court

The Tenth Circuit Court of Appeals issued its opinion in National Credit Union Administration Board v. Nomura Home Equity Loan, Inc. on Tuesday, August 19, 2014.

The U.S. Supreme Court granted certiorari to review the Tenth Circuit’s August 27, 2013 decision and remanded with instructions to reconsider in light of the Supreme Court’s decision in CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014). The Tenth Circuit, after receiving additional briefs and reviewing CTS Corp., reinstated its original opinion. Click here for the original summary.

Tenth Circuit: Unpublished Opinions, 8/21/2014

On Thursday, August 21, 2014, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Trotter

United States v. Velasco

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.