October 21, 2014

Tenth Circuit: Unpublished Opinions, 9/22/2014

On Monday, September 22, 2014, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Carrillo-Lopez

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Questions of Fact Existed Regarding ADA Violations; Summary Judgment Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co. on Tuesday, September 2, 2014.

Abercrombie & Fitch Co., parent company of J.M. Hollister, LLC, d/b/a Hollister Co., has two designs for its stores in shopping malls. One design features a raised “porch” entrance, where the porch is raised by two steps and there is no ramp. The Orchard Park Town Center and Park Meadows Mall Hollister stores have the “porch” design. Anita Hansen, a member of The Colorado Cross-Disability Coalition (CCDC) who uses a wheelchair, tried to enter the Hollister store at Orchard Park and could not access the store via the “porch.” She was told by a store employee to use a side entrance, but it was locked. When an employee opened the door, there was no room for Hansen to maneuver her wheelchair into the store. She had a similar experience at the Park Meadows store. The experiences were humiliating for Hansen.

CCDC notified Abercrombie and Hollister that these stores violated the ADA. Attempts to settle failed, and CCDC brought suit in federal district court. CCDC added class complaints challenging the “porch” design at Hollister stores throughout the United States. Abercrombie corrected some of the barriers by lowering sales counters, rearranging merchandise so wheelchair-bound customers could access the store, and ensuring the side door remained unlocked. However, it kept the “porch” design.

After plaintiff filed a third amended complaint, Abercrombie moved to dismiss, arguing plaintiffs lacked Article III standing. However, the district court disagreed, finding a “real and immediate threat” of future harm if the ADA violations were not remedied. The plaintiffs filed a motion for partial summary judgment, asking for judgment as a matter of law on whether the porch at the Park Meadows Hollister violated Title III of the ADA. This motion was granted. Thereafter, some plaintiffs withdrew and another wheelchair-bound plaintiff, Ms. Farrar, was added. The parties filed cross-motions for summary judgment, plaintiffs seeking summary judgment that all Hollister stores with the porch-like entrance violated Title III of the ADA and defendants seeking summary judgment on standing, arguing that the plaintiffs failed to prove a concrete injury in fact. The district court granted plaintiffs’ motion in full and denied Abercrombie’s. The court held that plaintiffs proved standing, Abercrombie’s changes to the Park Meadows Hollister did not moot the claim against the porch entrance, and it entered a permanent injunction ordering Abercrombie to bring all stores into compliance with Title III of the ADA within three years. Abercrombie appealed.

The Tenth Circuit first addressed standing, finding that just because Farrar and Hansen were ADA testers, that did not deprive them of Title III standing. Further, because Ms. Farrar has standing, she has standing as the representative of a nationwide class. The Tenth Circuit declined to overturn the district court’s class certification, finding that the numerosity element of Rule 23 was met and that it would be impracticable to join all potential class members. Next, the Tenth Circuit turned to the ADA claims. The district court found that Abercrombie violated the ADA in three ways: (1) the raised porch design violated the broad statutory requirements of the ADA by providing “different or separate” accommodation that was not in the most integrated setting; (2) the porch was a “space” as defined by the Design Standards, and Abercrombie must comply with regulations regarding circulation routes and accessibility; and (3) because the porch was an “entrance,” it violated the Design Standards’ mandate that the entrance used by the majority of people be accessible. The Tenth Circuit disagreed that Abercrombie’s use of the porch design violated the ADA, holding instead that the design itself was what violated the ADA and the accessibility must be evaluated by the Design Standards. The Tenth Circuit held that each of the district court’s grounds for awarding Plaintiffs summary judgment was untenable.

The Tenth Circuit affirmed the district court’s denial of summary judgment to Abercrombie, affirmed the class certification, but reversed the grant of summary judgment to plaintiffs. The case was remanded for further determination of the issues. The dissent would not have certified the class.

Tenth Circuit: Unpublished Opinions, 9/19/2014

On Friday, September 19, 2014, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinions.

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

Comment Period Open for Proposed Changes to Bankruptcy Court Local Rules

Significant changes to the Federal Rules of Bankruptcy Procedure will take effect December 1, 2014. The changes are to the 8000 series of rules, which govern appeals. Correspondingly, the Bankruptcy Appellate Panel of the 10th Circuit has amended its local rules, effective December 1, 2014.

The comment period for the proposed changes to the local bankruptcy rules is open until October 15, 2014. Comments may be submitted via email to 10th_Circuit_BAP@ca10.uscourts.gov. A redline of the proposed changes is available here, and a summary of the revisions is available here.

Tenth Circuit: Threat to Hire Permanent Replacements Not Enough to Invalidate Entire Lockout

The Tenth Circuit Court of Appeals issued its opinion in Teamsters Local Union No. 455 v. National Labor Relations Board on Wednesday, August 27, 2014.

Harborlite, Inc. locked out union members during a collective bargaining dispute. Harborlite threatened to hire permanent workers to replace the locked out union members, and the Teamsters brought a claim with the National Labor Relations Board. The NLRB ordered Harborlite not to make future threats of termination and to post a notice to that effect. Teamsters appealed, alleging that the NLRB should have held the entire lockout unlawful and awarded back pay.

The Tenth Circuit first addressed the Supreme Court’s recent ruling in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), and found it had jurisdiction, since the NLRB appointment at issue was made during a Senate recess that was longer than the period specified as problematic by the Court.

Turning to the merits of the appeal, the Tenth Circuit could not support the Teamsters’ contention that the lockout became unlawful when Harborlite threatened to hire permanent replacements. The threat did not cause the Teamsters to change their position, and it was not acted upon. A mere threat and nothing more was not enough to convert an otherwise legal lockout to an illegal one. The petition to review was denied.

Tenth Circuit: Unpublished Opinions, 9/18/2014

On Thursday, September 18, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Gagarina v. Holder

United States v. Riggins

Antelope Coal Co. v. Goddard

Collvins v. Hennebold

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

Tenth Circuit: Unpublished Opinions, 9/17/2014

On Thursday, September 17, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Juarez-Galvan v. United Parcel Service, Inc.

Uzdenov v. Holder

Reneau v. Mahoney

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

Tenth Circuit: Unpublished Opinions, 9/16/2014

On Tuesday, September 16, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Fortner v. Young

Engelhardt v. Heimgartner

United States v. Deppish

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

Tenth Circuit: Debtor’s Participation in Tax Evasion Scheme was Willful

The Tenth Circuit Court of Appeals issued its opinion in In re Vaughn: Vaughn v. United States on Tuesday, August 26, 2014.

In the mid-1990s, James Charles Vaughn was the CEO of FrontierVision Partners, L.P., a cable television acquisitions company. In 1999, Vaughn sold FrontierVision for roughly $2.1 billion. He received approximately $20 million cash and $11 million in the purchasing company’s stock from this transaction. Vaughn contacted KPMG LLP regarding tax planning and learned of a tax strategy called Bond Linked Issue Premium Structure (“BLIPS”), in which relatively small cash contributions were made to an investment fund with a non-recourse loan and loan premium in order to facilitate a high tax loss without a corresponding economic loss. Vaughn utilized the BLIPS strategy for his 1999 taxes. In September 2000, the IRS issued Revenue Bulletin Notice 2000-44, which specifically disclaimed BLIPS-type practices, although not naming BLIPS. Vaughn was notified of the IRS’s position by KPMG in 2000. In 2001, another BLIPS participant was audited by the IRS, and contacted Vaughn to inform him of the audit. KPMG was audited in 2002, and at that time informed Vaughn that he likely would face an audit as well. KPMG representatives suggested to Vaughn that he participate in an IRS voluntary disclosure program.

Meanwhile, Vaughn divorced his first wife, Cindy Vaughn, in 2001, and the couple’s assets were divided. Vaughn married Kathy St. Onge shortly thereafter and made large purchases with her. In 2002, three weeks before filing his voluntary disclosure with the IRS, Vaughn created an irrevocable trust for his stepdaughter and transferred $1.5 million to the trust. Vaughn and St. Onge spent large amounts of money from 2001 through 2003. When the couple divorced in 2003, St. Onge received many of the remaining assets.

The IRS notified Vaughn in 2003 that Cindy had requested innocent spouse relief for her 1999 tax return. Vaughn requested the same relief, stating that the divorces had depleted his assets but neglecting to mention the trust for the stepdaughter or the unequal division of assets in his divorce from St. Onge. In June 2004, the IRS notified Vaughn of an approximately $8.6 million tax deficiency relating to the BLIPS transaction, and notified him of a further $200,000 deficiency regarding carryover from 2000.

Vaughn filed his Chapter 11 bankruptcy petition in November 2006. The IRS subsequently filed a proof of claim in that action for the 1999 and 2000 tax deficiencies for approximately $14.3 million. Vaughn initiated an adversary proceeding, seeking to have the taxes declared dischargeable. The bankruptcy court found that Vaughn had both filed a fraudulent tax return and willfully evaded his taxes, and his tax liabilities were non-dischargeable. Vaughn appealed to the federal district court, which affirmed the bankruptcy court. Vaughn then appealed to the Tenth Circuit, arguing that the district court erroneously employed a “holistic” review to support the bankruptcy court’s determination of willful evasion of taxes, and also arguing that the bankruptcy court’s finding of willful evasion was based on conduct that was negligent, not willful.

The Tenth Circuit first addressed the “holistic” review argument, and noted that the bankruptcy court made no mention of employing a “holistic” review, instead applying a two-pronged approach. Turning next to the argument that Vaughn’s conduct was negligent, not willful, the Tenth Circuit found that the bankruptcy court made specific findings regarding Vaughn’s intentions in participating in the BLIPS scheme. The Tenth Circuit rejected Vaughn’s argument that his conduct was negligent because he did not know the exact amount of taxes due, finding instead that the assessment of tax is not required for debtor’s conduct to be willful.

The Tenth Circuit affirmed the district court and the bankruptcy court.

Tenth Circuit: Opinion Amended Upon Request for Rehearing

The Tenth Circuit Court of Appeals released its amended opinion in Bayless v. United States on Friday, September 12, 2014. In this case, the United States filed a petition for panel rehearing, which was granted in part. Modifications were made to pages 2 and 23 of the published opinion. The request for rehearing was otherwise denied. To read the summary of the original opinion, click here.

Tenth Circuit: Unpublished Opinions, 9/15/2014

On Monday, September 15, 2014, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Sanchez v. State of Wyoming

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

Tenth Circuit: Unpublished Opinions, 9/12/2014

On Friday, September 12, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Davis v. Roberts

United States v. Nichols

United States v. Harris

United States v. Mooneyham

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