September 21, 2017

Colorado Court of Appeals: Multiple Counts of Identity Theft Proper for Multiple Instances with Same Victim

The Colorado Court of Appeals issued its opinion in People v. Allman on Thursday, August 10, 2017.

Identity Theft—Forgery—Theft from an At-Risk Adult—Merger—Sentence—Concurrent—Probation.

Using an alias, Allman presented himself to the victim as a businessman who had recently moved from Washington to Colorado. Allman moved into the victim’s basement, gained her trust, and when the victim left on vacation, Allman accessed the victim’s bank accounts and stole money from them. Allman also opened several credit cards in the victim’s name, moved out of her home, took her car, and obtained over $40,000 of credit in her name. Allman was convicted of eight counts of identity theft, two counts of forgery, one count of aggravated motor vehicle theft, and one count of theft from an at-risk adult. He was sentenced consecutively for some counts and concurrently for others.

On appeal, Allman argued that the convictions for identity theft are unconstitutionally multiplicitous and must merge into one conviction and sentence for that offense because identity theft is a continuing crime where, as here, the identity of only one victim has been stolen. The Colorado Court of Appeals concluded that the crime of identity theft under C.R.S. § 18-5-902(1)(a) is not a continuing course of conduct and, therefore, each discrete act of identity theft under that subsection is a separately chargeable offense.

Allman also appealed a number of sentencing issues. He first contended that his sentences for the identity theft counts should merge. The court rejected this argument based on its finding that identity theft is not a continuing crime. Second, Allman alternatively contended that the identity theft sentences should run concurrently because they are based on identical evidence. Because Allman’s eight convictions for identity theft were based on factually distinct evidence, the trial court was not required to impose concurrent sentences. Third, he argued that his sentence for two counts of forgery should run concurrently to each other and to one of his sentences for identity theft because he used the same credit card for all three offenses. The record is clear that neither forgery offense is factually identical to the other, nor is either of them factually identical to the identity theft count. Thus the trial court was not required to impose concurrent sentences for these offenses. Fourth, Allman argued that he was illegally sentenced to both the custody of the Department of Corrections and probation. Where, as here, a court sentences a defendant for multiple offenses in the same case, it may, within its discretion and subject to statutory limitations, impose imprisonment for certain offenses and probation for others, including probation consecutively to a period of incarceration. Fifth, Allman contended that his sentence for theft from an at-risk adult should run concurrently to his other sentences because the jury was not required to make a specific finding regarding exactly what Allman stole from the victim as the basis for that count. Under the circumstances of this case, the sentencing court was not required to order a concurrent sentence for the theft conviction.

The judgment and sentence were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: In Identity Theft Case, People Must Show Knowledge of Theft

The Colorado Supreme Court issued its opinion in People v. Molina on Monday, February 6, 2017.

Criminal Law—Identity Theft.

This case came to the Colorado Supreme Court on certiorari review of the court of appeals’ unpublished opinion, People v. Molina, No. 11CA1650 (Colo. App. June 19, 2014). A jury convicted Daniela Molina of two counts of identity theft and three counts of forgery. The court granted certiorari to resolve three issues: (1) whether the People must show that Molina knew she stole another person’s information; (2) whether there was sufficient evidence that Molina knew she stole a real person’s information; and (3) whether an apartment lease and employment qualify under the identity theft statute as “thing[s] of value.” The court answered all three questions in the affirmative. Therefore, the court affirmed in part and reversed in part the court of appeals’ judgment and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: “Knowingly” Element of Identity Theft Statute Applies to “Of Another”

The Colorado Supreme Court issued its opinion in People v. Perez on Monday, February 29, 2016.

Criminal Law—Criminal Intent—False Pretenses—Identity Theft—Evidence—Sufficiency of Evidence.

The Supreme Court held that, in CRS § 18-5-902, the culpable mental state “knowingly” applies to the element “of another.” Therefore, to be guilty of identity theft, an offender must have used the identifying information of another person with knowledge that the information belonged to an actual person. The Court also concluded that the evidence in this case was sufficient to support defendant’s conviction under CRS § 18-5-902.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Lengthy Sentence Justified by Defendant’s Human Rights Violations

The Tenth Circuit Court of Appeals issued its opinion in United States v. Worku on Tuesday, September 1, 2015.

Mr. Habteab Berhe Temanu’s children approached Kefelegne Alemu Worku, an Ethiopian man, and asked him to assume the identity of their father because they were afraid they would not be able to complete the admission requirements to enter the United States due to his dementia. Worku assumed Berhe’s identity and later became a U.S. citizen under Berhe’s name. Immigration authorities learned Worku was using a false identity and suspected he had tortured Ethiopian prisoners in the ’70s. After an investigation and trial, Worku was convicted of unlawful procurement of citizenship or naturalization, fraud and misuse of visas and other documents, and aggravated identity theft. He was sentenced to 22 years, partly because of a finding that he had committed the identity theft crimes to conceal the Ethiopian human rights violations.

On appeal, Worku contended (1) the immigration convictions violated the Double Jeopardy clause, (2) his aggravated identity theft conviction was improper because he had permission to use Berhe’s identity, (3) the sentence was procedurally improper because there was no evidence he had come to the United States to conceal human rights violations and the witnesses identifying him as the torturer did so due to impermissively suggestive photo arrays, and (4) the sentence was substantively unreasonable.

The Tenth Circuit first addressed Worku’s Double Jeopardy argument. Worku argued that his unlawful procurement of citizenship and aggravated identity theft convictions were predicated on the same conduct. Under a plain error review, the Tenth Circuit affirmed, finding that Count 1 was based on Worku’s form for naturalization and Count 3 was based on misrepresentations in his application for permanent residence. Worku contended the distinction was blurred in the jury instructions, but the Tenth Circuit disagreed. The Tenth Circuit found that the evidence of guilt was overwhelming and uncontroverted, and Double Jeopardy was not implicated.

Next, the Tenth Circuit addressed Worku’s contention that he could not be convicted of aggravated identity theft because he had permission to use Berhe’s identity. The Tenth Circuit found no error in this conviction, because the statute only allows an individual to permit use of his or her identity and in this case the individual’s children were the ones who allowed Worku to use the identity.

The Tenth Circuit then turned to Worku’s argument that he was denied due process because photo arrays in which he was identified as the notorious prison supervisor who had tortured inmates were unduly suggestive. The Tenth Circuit evaluated the photo arrays and found that although there were differences in the arrays, there was no error in the district court’s determination that they were not impermissively suggestive because appearances would be expected to have changed over the 30-plus-year time span. The Tenth Circuit also evaluated the witnesses’ testimony and found that because the witnesses were victims of Worku’s horrific acts of torture, the time span was inconsequential and their identification with “100% certainty” was reliable.

Finally, the Tenth Circuit addressed the substantive reasonableness of Worku’s sentence. The district court decided to stray from the Guidelines range because there were not enough cases involving human rights violators entering the United States to provide a reliable comparison. The district court imposed the maximum sentence for each count to fully compensate for the egregiousness of Worku’s human rights violations. The Tenth Circuit found no abuse of discretion in the district court’s decision.

The Tenth Circuit affirmed the district court’s conviction and sentence.

Tenth Circuit: Use of False Identity Immaterial to Wire and Mail Fraud and Cannot Form Basis for Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Camick on Friday, July 31, 2015.

Leslie Lyle Camick was a Canadian citizen who entered the United States in 2000 using the identity of his brother, Wayne Bradly Camick, who had died in infancy. Camick assumed his brother’s identity in order to avoid outstanding child support obligations and back taxes and to evade permanent driver’s license revocation due to numerous intoxicated driving offenses. Camick used his brother’s identity throughout his time in the United States.

In 2004, Camick began a professional and romantic relationship with Lyn Wattley. The couple eventually moved to Kansas and bought a home together under Camick’s assumed identity. In 2010, Camick and Wattley, together with machinist Mark Nelson, began developing an idea for a new way to cover manholes. In 2011, Camick’s and Wattley’s relationship deteriorated, and unbeknownst to Wattley, Camick filed a provisional patent application for the locking manhole cover. In the summer of 2011, Camick drove a 2006 GMC truck that he had paid for but that was titled in Wattley’s name to Arizona. Wattley became concerned about Camick driving since he had had prior intoxicated driving incidents, so she reported the vehicle stolen. Camick was arrested in New Mexico for theft of the truck but Wattley requested that the New Mexico charges be dropped. The Kansas warrant for the stolen vehicle remained outstanding.

In late 2011, Camick was arrested in New Jersey, where he was interviewed by U.S. Immigration Officer Jackey He to determine his immigration status. Eventually, Camick admitted his real name to Officer He and signed an affidavit that he had used his brother’s identity to enter and reside in the United States. Camick was placed under arrest and Officer He initiated removal proceedings against him. As a result of the arrest, Wattley discovered Camick’s true identity and initiated quiet title proceedings to remove the name Wayne Camick from their Kansas residence. She served Camick in the New Jersey detention center, but he failed to respond within the 30-day period and the Kansas court quieted title against him. More than a month after the Kansas court entered judgment, Camick submitted a response to the quiet title action, claiming he was the purchaser and owner of the subject property and that he had been unable to respond due to his immigration detention. The Kansas court responded by issuing a letter that Camick’s response did not comply with Kansas law and was untimely. Two months later, Camick sent another letter to the Kansas court claiming he had been “wrongfully detained” by ICE as a result of Wattley’s “falsified Police report.”

In March 2013, Camick was indicted on charges of mail fraud, wire fraud, material false statement to the U.S. Patent Office, and three counts of aggravated identity theft relating to the fraud and false statement charges. In July 2013, Camick filed a 42 U.S.C. § 1983 lawsuit against Wattley and others, alleging constitutional and tort violations arising from the 2011 stolen vehicle report. This lawsuit became the source of Camick’s obstruction of justice charge as contained in the government’s second superseding indictment. After a three-day trial, Camick was convicted of all seven charges and was sentenced to 48 months’ imprisonment followed by one year of supervised release. Camick was also ordered to pay $15,186 in restitution to Wattley. He timely appealed.

The Tenth Circuit analyzed the mail fraud charge, which was premised on the letter Camick mailed to the Kansas court regarding his failure to respond to the quiet title action. Camick argued the evidence was insufficient to show he made materially false statements with the intent to defraud. The Tenth Circuit agreed. The Kansas court and Wattley were aware of Camick’s true identity at the time he sent the letter, and he had been known as Wayne throughout his time in the United States. The Tenth Circuit held that Camick’s identity could have had no bearing on the Kansas court’s decision to uphold its default judgment. Camick’s statement that he had been “wrongfully detained” was likewise immaterial since it was incapable of influencing the Kansas court’s decision. The Tenth Circuit reversed Camick’s conviction for mail fraud and the related aggravated identity theft charge.

The Tenth Circuit next evaluated Camick’s challenges to the wire fraud and material false statement convictions, both of which pertained to the provisional patent application. Camick argued that because he was the actual inventor of the locking manhole cover and everyone knew him as Wayne Camick, his use of that name on the provisional patent application was insufficient to show a false statement with intent to defraud. The Tenth Circuit again agreed, holding that the false statements were immaterial to the provisional patent application. Because the provisional patent application did not require an oath or declaration by the applicant, the Tenth Circuit found Camick’s fraud in using his brother’s name immaterial to the provisional patent application. The Tenth Circuit reversed the convictions for wire fraud and material false statement. The Tenth Circuit also reversed the accompanying aggravated identity theft charges.

Camick challenged his obstruction of justice charge, arguing the evidence was insufficient to show that he filed the civil rights suit against Wattley with retaliatory intent. The Tenth Circuit, drawing inferences of retaliation from the timing of his filing, disagreed. The Tenth Circuit upheld this conviction. Judge Kelly dissented from this part of the opinion; he would have reversed the obstruction of justice conviction as well.

Finally, Camick argued that the restitution award improperly failed to tie Camick’s harms of conduct to the restitution requested by Wattley. The Tenth Circuit evaluated the restitution award and reversed the parts of the award requested for Wattley’s quiet title action and review of the provisional patent application. The Tenth Circuit also reversed the award of costs incurred in a separate civil lawsuit.

Camick’s convictions for mail fraud, wire fraud, material false statement, and aggravated identity theft were reversed. Camick’s conviction for obstruction of justice was affirmed. The case was remanded for a hearing on the remaining restitution award.

Colorado Court of Appeals: Employment is a Thing of Value for Identity Theft Purposes

The Colorado Court of Appeals issued its opinion in People v. Campos on Thursday, April 23, 2015.

Employment—Identify Theft—Evidence—Impeachment—Credibility.

A police investigator discovered that defendant, an employee of ABM Janitorial Services, had been receiving paychecks under the name “S.A.” for approximately four years using S.A.’s social security number. Defendant was charged with identity theft, criminal impersonation, and two counts of forgery related to her hiring paperwork. The jury convicted defendant of identity theft and criminal impersonation but acquitted her of the two forgery counts.

On appeal, defendant contended that the evidence at trial was insufficient to convict her of identity theft. Because employment is a “thing of value” within the meaning of the identity theft statute, the evidence that defendant used S.A.’s personal identifying information to obtain employment at ABM was sufficient to sustain the conviction.

Defendant also contended that the trial court abused its discretion in restricting defense counsel’s recross-examination of Juan Martinez, an ABM manager, about whether he (1) had a valid social security number, and (2) was required to give ABM a social security number when he went to work there. The record shows that the trial court was well within its discretion to conclude that these two questions were repetitive of the areas already covered and were only marginally relevant. Further, precluding responses to the two questions did not excessively limit the defense’s ability to cross-examine Martinez, nor did the questions relate to Martinez’s bias, prejudice, or motive for testifying. Therefore, the court’s ruling was not an abuse of discretion and did not violate defendant’s rights under the Confrontation Clause. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Identity Theft and Unauthorized Financial Transactions Statutes Address Different Conduct

The Colorado Court of Appeals issued its opinion in People v. Trujillo on Thursday, March 12, 2015.

Identity Theft—Unauthorized Use of Financial Transaction Device—Testimony—Character Evidence—Habit Evidence—Equal Protection.

Trujillo worked at an assisted-living facility. One weekend, she took $250 in cash and a debit card from a resident. Trujillo used the debit card to spend approximately $270 at several stores. She was convicted of identity theft and theft from an at-risk adult.

On appeal, Trujillo argued that the trial court abused its discretion when it admitted the resident’s testimony that she never gave her debit card to anyone, contending it was inadmissible character evidence. The resident described her regular response to the situation of needing people to buy things for her—her habit was to never give them her debit card. This testimony was habit evidence, not character evidence, and thus the trial court did not abuse its discretion in admitting it.

Trujillo also contended that her conviction for identity theft violated her right to equal protection of the laws because, as applied to her, the identity theft statute punishes the same conduct as the unauthorized use of a financial transaction device statute but carries a harsher penalty. Trujillo’s charged conduct was using the resident’s debit card, without her permission, to purchase food, clothing, and other items. A reasonable distinction can be drawn between the conduct punished by the two statutes because the felony identify theft statute describes a theft perpetrated against the account holder of a financial device, while the misdemeanor statute describes fraudulent conduct committed against the provider of cash, property, or services in a financial transaction. Therefore, Trujillo’s equal protection rights were not violated. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Unauthorized Use and Identity Theft Statutes Not Mutually Exclusive

The Colorado Court of Appeals issued its opinion in People v. Jauch on Thursday, August 29, 2013.

Identity Theft—Unauthorized Use of a Financial Transaction Device—Equal Protection—Motion to Suppress—Search Warrant—Plain View Doctrine.

Defendant Kathy Lynn Jauch appealed the judgment of conviction entered on jury verdicts finding her guilty of theft, two counts of identity theft, and two counts of unauthorized use of a financial transaction device. The Court of Appeals affirmed.

The victim’s backpack was stolen from the parking lot in front of his workplace. It contained, among other things, a computer and a credit card. The credit card was used at a gas station shortly after it was stolen, and a woman who police later identified as Jauch was observed wearing a turquoise shirt with ruffles and attempting to use the credit card to order food from a restaurant.

On appeal, Jauch contended that the identity theft statute imposes a harsher penalty for the same conduct proscribed by the unauthorized use of a financial transaction device statute, and therefore, her identity theft conviction violates her equal protection rights. The two statutes, however, do not prohibit identical conduct. To prove identity theft, the prosecution must show that a defendant knowingly used the identifying information or a financial device belonging to another person or entity. By contrast, the unauthorized use statute requires no similar showing. Therefore, Jauch’s equal protection rights were not violated.

Jauch also contended that the trial court erred in denying her motion to suppress a turquoise shirt found during the search of her home. Because the officers had a lawful right of access to Jauch’s home through a valid search warrant and based on her fellow officer’s reasonable belief that the shirt was connected to the criminal activity under investigation, the officers had a lawful right of access to the turquoise shirt, which was found in Jauch’s home. Accordingly, the trial court did not err in admitting the turquoise shirt under the plain view exception.

Summary and full case available here.

Colorado Court of Appeals: Evidence Insufficient to Prove Knowledge that Social Security Number Belonged to Someone Else in Identity Theft Case

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, May 9, 2013.

Identify Theft—Criminal Impersonation—Evidence—Mens Rea.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of identity theft and criminal impersonation. The convictions were vacated.

Defendant was charged with identity theft and criminal impersonation for using another person’s Social Security number to obtain employment. On appeal, defendant asserted that the prosecution presented insufficient evidence to sustain his identity theft convictions. The identity theft statute, CRS § 18-5-902, requires that the prosecution prove that the defendant knew the Social Security number at issue belonged to someone. The prosecution failed to present sufficient evidence of this element.

Defendant also contended that the evidence was insufficient to support his criminal impersonation conviction, because the prosecution failed to prove that he assumed a false or fictitious identity or capacity. Although there might have been evidence that the employers would not have hired defendant unless he had a Social Security number, there was no evidence that a Social Security number was legally required for employment. Thus, the evidence was not sufficient to prove defendant assumed a false capacity.

Summary and full case available here.

Tenth Circuit: Jury Instructions Proper and Speedy Trial Act Not Violated in Defendant’s Conviction of Bank Fraud

The Tenth Circuit published its opinion in United States v. Loughrin on Friday, March 8, 2013.

Kevin Loughrin was convicted of bank fraud and other charges arising from a check and identity theft scheme.

He appealed his conviction on two grounds: (1) the district court’s jury instructions on the bank fraud  counts, 18 U.S.C. § 1344(2), were erroneous because they did not contain a requirement that Loughrin intended to defraud a bank; and (2) the delay between his indictment and trial violated his rights under the Speedy Trial Act.

Jury Instructions

Loughrin first argued that the district court’s jury instructions on the bank fraud counts, 18 U.S.C. § 1344(2), were erroneous because they did not contain a requirement that Loughrin intended to defraud a bank.

The case law requires the government to prove: “(1) that the defendant knowingly executed or attempted to execute a scheme (i) to defraud [§ 1344(1)] or (ii) to obtain property by means of false or fraudulent pretenses, representations or promises [§ 1344(2)]; (2) that defendant did so with the intent to defraud; and (3) that the financial institution was then insured by the Federal Deposit Insurance Corporation.” United States v. Rackley, 986 F.2d 1357, 1360–61 (10th Cir. 1993).

There is no requirement in either Rackley or the text of § 1344(2) that the fraud must be intentionally directed at a bank. Unlike clause (1), clause (2) does not explicitly state who must be the object of the scheme. Rackley indicates that only an intent to defraud someone is required. 986 F.2d at 1360–61. Thus, under Tenth Circuit precedent, an individual can violate § 1344(2) by obtaining money from a bank while intending to defraud someone else. The fact that Loughrin fraudulently obtained funds using bank checks, even though the bank was not at risk of loss, was sufficient to support his conviction for bank fraud.

The Tenth Circuit concluded the district court did not err in applying the requisite elements for bank fraud under § 1344(2) and that the subsection does not require proof that the defendant intended to defraud a bank.

Speedy Trial Act

Loughrin next argued that the district court violated his rights under the Speedy Trial Act (STA).

The Speedy Trial Act requires that a criminal trial begin no more than seventy days after the filing of an indictment or the defendant’s first appearance in court. 18 U.S.C. § 3161(c)(1). But not every day counts towards the seventy-day limit because of a multitude of statutory exclusions, 18 U.S.C. § 3161(g). If a delay does not fit within an explicit exclusion, the court may still exclude days from the seventy-day tally as long as it makes “findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A).

Loughrin made his first appearance in federal court on June 8, 2010. After a series of continuances for various reasons, Loughrin went to trial in April 2011.

However, after reviewing each continuance in turn, the Tenth Circuit agreed with the district court that Loughrin was tried within seventy days as required by the Speedy Trial Act.

AFFIRMED.

Colorado State Judicial Revises Many JDF Instructions and Forms in March

As part of its continuing efforts to keep JDF forms up-to-date, the Colorado State Judicial Branch revised several instructions and a few forms in March. Practitioners should begin using the new forms and instructions immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Download the new forms from State Judicial’s individual forms pages or below.

Adoption

  • JDF 495 – “Instructions for Second Parent Adoption” (revised 3/12)
  • JDF 497 – “Instructions for Validation of Foreign Adoption” (revised 3/12)
  • JDF 498 – “Instructions for Kinship Adoption” (revised 3/12)
  • JDF 499 – “Instructions for Custodial Adoption” (revised 3/12)
  • JDF 500 – “Instructions for Stepparent Adoption” (revised 3/12)
  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 3/12)

Appeals

  • JDF 126 – “Instructions to File a County Court Civil or Small Claims Appeal” (revised 3/12)

County Civil / District Civil

  • JDF 86  – “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 3/12)
  • JDF 96 – “Instructions for Filing an Answer and/or Counterclaim in County Court” (Money Demand) (revised 3/12)
  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED) / Evictions” (revised 3/12)
  • JDF 110 – “Instructions for County Court Civil Cases (Money Demand)” (revised 3/12)
  • JDF 112 – “Instructions for Reviving a Judgment” (revised 3/12)
  • JDF 115 – “Instructions for Replevin” (revised 3/12)
  • JDF 122 – “Instructions for Issuance of Contempt Citation” (revised 3/12)
  • JDF 137 – “Instructions for Filing a Foreign Judgment” (revised 3/12)
  • JDF 385  – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (revised 3/12)
  • JDF 432 – “Instructions for Filing a Change of Name (Adult)” (revised 3/12)
  • JDF 605 – “Instructions for Appealing Property Tax Assessments with the District Court” (revised 3/12)
  • JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 3/12)
  • JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice” (revised 3/12)

Criminal

  • JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 416 – “Instructions to File a Petition to Seal Arrest and Criminal Records” (revised 3/12)

Domestic

  • JDF 1215 – “Evaluation of a Foreign Decree, Foreign Custody-Determination, and Foreign Support Order” (revised 3/12)
  • JDF 1220 – “Instructions to Register a Foreign Decree” (revised 3/12)
  • JDF 1800 – “Instructions/Options to Enforce Orders” (revised 3/12)
  • JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support and/or Maintenance Orders” (revised 3/12)

Juvenile

  • JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 476 – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Juvenile Adjudication or Disposition” (revised 3/12)

Paternity

  • JDF 1500  – “Instructions to Establish Paternity” (revised 3/12)
  • JDF 1502 – “Summons in Paternity” (revised 3/12)
  • JDF 1513 – “Instructions to Disclaim Paternity” (revised 3/12)
  • JDF 1515 – “Summons to Disclaim Paternity” (revised 3/12)

Probate

  • JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State” (revised 3/12)
  • JDF 786 – “Instructions to File Petition to Transfer Adult Guardianship and/or Conservatorship From Colorado to Receiving State” (revised 3/12)
  • JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 3/12)
  • JDF 823 – “Instructions for Appointment of a Guardian – Minor” (revised 3/12)
  • JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 3/12)
  • JDF 860 – “Instructions for Appointment of a Conservator – Minor” (revised 3/12)
  • JDF 875 – “Instructions for Appointment of a Conservator – Adult” (revised 3/12)
  • JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 3/12)
  • JDF 906 – “Instructions for Probate With a Will” (revised 3/12)
  • JDF 907 – “Instructions for Probate Without a Will” (revised 3/12)
  • JDF 957 – “Instructions for Closing an Estate Formally” (revised 3/12)
  • JDF 958 – “Instructions for Closing a Small Estate Informally” (revised 3/12)
  • JDF 959 – “Instructions for Closing an Estate Informally” (revised 3/12)
  • JDF 989 – “Instructions for Re-Opening an Estate” (revised 3/12)

Protection Orders

  • JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 3/12)
  • JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 3/12)

Small Claims

  • JDF 248 – “Instructions for Filing a Small Claims Case” (revised 3/12)

Cyber Insurance: An Efficient Way to Manage Security and Privacy Risk

Practically every company in our modern economy has information security and privacy risk. There is no way to completely eliminate it. Whether it is your firm or your client, most companies of all shapes, sizes, and wealth profiles use information technology and handle sensitive information including personal information and credit card numbers. That means organizations face potential direct losses, lawsuits, and liability due to data, security, and privacy breaches.

The frequency and magnitude of data breaches by hackers has only been increasing. We read about security and privacy breaches practically every day in the newspaper. As the world continues to change at seemingly light-speed and cyber risks increase, the need for risk transfer with cyber insurance is also growing. Relying on a general liability or property policy to provide the coverage is no longer a wise choice (if it ever was), and companies could be well-served to get peace of mind and relative predictability by learning more about cyber policies that are actually designed to address the risk.

CBA-CLE will be hold a program on Thursday, March 29 to address the impact of data breaches and the trend toward cyber insurance. The program presenter, David Navetta, Esq., has written several articles about data security and cyber insurance. Read some of his insights below, and then join us to learn more about protecting sensitive information with cyber insurance, an option that may be of great importance to your clients or law firm.

In the early 2000s, just around the “DotCom Bust,” some insurers began developing a product designed to address the financial loss that might arise out of a data breach. This was a time where most “brick and mortar” companies were just beginning to leverage the economic potential of the Internet. At that time, insurers wanted to target the big “dotcom” companies like Amazon, Yahoo, eBay, Google, etc., and other companies pioneering e-commerce and online retailing. At some point, somebody dubbed this type of insurance “cyber insurance.”

The early cyber policies included liability and property components. The liability coverages addressed claim expenses and liability arising out of a security breach of the insured’s computer systems (some early policies only covered “technical” security breaches, as opposed to policy violation-based security breaches). The property-related components covered business interruption and data asset loss/damage arising out of a data breach (during the holiday season many online retailers suddenly developed a tasted for business interruption coverage after realizing just how negatively their business would be impacted by a denial of service attack).  Additional first party coverages included cyber-extortion coverage and crisis management/PR coverage.

Unfortunately for the carriers, it was not easy to get people to understand the need for this coverage (and that is still a challenge today, but certainly a lesser challenge with all of the security and privacy news constantly streaming). Early on there were very few lawsuits and regulators were just beginning to consider enforcement of relatively new statutes like GLB and HIPAA.

Two things changed that made cyber insurance much more relevant. One was a rather sudden event, and the other more gradual.

First, in 2003, California passed SB1386, the world’s first breach notification law. The reality then (as now) is that companies suffer security breaches each and every day. Prior to SB1386, however, breaches of personal information simply went unreported. With SB1386 and the subsequent passage of breach notice laws in 45 other states (and now coming internationally), the risk profile changed for data breaches. Instead of burying the breaches, companies were required to incur significant direct expenses to investigate security breaches and comply with applicable breach notice laws, including the offering of credit monitoring to affected individuals (which is not legally required by existing breach notice laws, but is optionally provided by many companies or “suggested” by state regulators). As a result, the plaintiffs’ bar now had notice of security breaches and began filing class action lawsuits after big breaches (usually involving high-profile brand name organizations). As such, cyber insurance coverage went from coverage addressing a hypothetical risk of future lawsuits, to a coverage addressing real-life risk (and now we have lawsuits getting deeper into litigation and public settlements of these types of cases). Moreover, shortly after the passage of SB 1386 many cyber insurance policies began covering the direct costs associated with complying with breach notification laws, including attorney fees, forensic investigation expenses, printing and mailing costs, credit monitoring expenses and call center expenses.  Breach notification costs are direct and almost unavoidable after a personal information breach.  Regardless of lawsuit activity, a direct financial rationale for cyber insurance coverage now existed.

The other change that occurred more gradually over time, but which has had a significant impact concerning the frequency and magnitude of data breaches, was organized crime. In the early 2000s, hacking was more of an exercise in annoyance or a used for bragging purposes. Hackers at that time wanted their exploits talked about and know. They wanted credit for hacking into or bringing down a sophisticated company (or better yet a division of the Federal Government or military). As such, when an attack happened it was discovered and remediated, and that would be the end of it.

True criminals, of course, are less interested in such notoriety. In fact, when trying to steal thousands/millions of records to commit identity theft or credit card fraud it is much better to NOT be detected. Lingering on a company’s network taking information for months or years is a much more profitable endeavor. Recognizing that this type of crime is low risk (it can be performed from thousands of miles away in Eastern Europe with almost no chance of getting caught) and high reward, organized crime flooded into the space. And in this context the word “organized” is truly appropriate – these enterprises retain very smart IT-oriented people that use every tool possible to scale and automate their crimes. They leverage the communication tools on the Internet to fence their “goods” creating, for example, wholesale and retail markets for credit cards, or “eBay”-like auction sites to hawk their illicit wares (e.g. valuable information). The change in orientation described above has essentially resulted in a 24/7/365 relentless crime machine constantly attacking and looking for new ways to attack, and always seeming to be one step ahead of those seeking to stop them. That is why we read about security and privacy breaches practically every day in the newspaper.

Fast-forward to present time. Cyber insurance is a much more established market with more carriers entering on a regular basis. There are primary and excess markets available for big risks, and companies of all sizes are looking at cyber more as a mandatory purchase rather than discretionary. As the world continues to change at seemingly light-speed and cyber risks increase (with the advent of hacktivism, social media and the consumerization of IT/BYOD ) the need for cyber is also growing. With competition pushing cyber insurance prices down, and significant security and privacy risk being retained by organizations, risk transfer is becoming very attractive (and from an overall big picture systemic point of view, spreading risk is also attractive). The price may be right, and the peace of mind priceless.

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CLE Program: Is Your Sensitive Data Secure? Cyber Insurance for Your Firm and Your Clients

This CLE presentation will take place on Thursday, March 29. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.