January 20, 2018

Happy Labor Day from CBA-CLE!

flagHappy Labor Day! The CBA and CLE offices will be closed on Monday, September 5, 2016, in observance of Labor Day.

Labor Day is always celebrated on the first Monday in September. It was established to honor the American labor movement and the social and economic achievements of American workers.

There is some debate as to who first proposed Labor Day. Many credit Matthew Maguire, a machinist who later became the secretary of Local 344 of the International Association of Machinists in Paterson, N.J. Others contend Labor Day was proposed by Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a cofounder of the American Federation of Labor. Regardless of whose idea it was, though, the first Labor Day was celebrated in New York City on Tuesday, September 5, 1882.

The Colorado legislature enacted Labor Day in 1887, and on June 28, 1894, Congress enacted a bill making the first Monday in September a national holiday, signed by President Grover Cleveland after the end of a bloody strike, the Pullman Strike.

Today, Labor Day is generally celebrated with barbecues and picnics, but the original plan for Labor Day was outlined in the first proposal as a street parade to exhibit to the public the strength and esprit de corps of the trade and labor organizations of the community, followed by a festival for the recreation and amusement of the workers and their families. Later, the day included speeches by prominent figures in the labor movement, although that has largely been abandoned today.

Denver celebrates Labor Day weekend with the Taste of Colorado festival, held in Civic Center Park. Additionally, the Colorado State Fair will take place in Pueblo this weekend, Colorado Springs will host its annual Labor Day Liftoff Hot Air Balloon festival, and the Buffs and Rams will have their annual showdown at Sports Authority Field at Mile High Stadium tonight.

No matter what your plans for the weekend include, we hope you have a happy and safe weekend, and a great Labor Day.

Tenth Circuit: Post-Departure Bar from Reviewing Motions to Reopen Filed by Noncitizens Outside the United States Impermissibly Interferes with Congress’ Intent to Afford Such a Statutory Right

The Tenth Circuit Court of Appeals published its opinion in Contreras-Bocanegra v. Holder, Jr. on Monday, January 30, 2012.

The Tenth Circuit granted the petition for review and vacated the Board of Immigration Appeals’ decision. Petitioner, a citizen of Mexico, became a lawful permanent resident of the United States in 1989. Two years later, he received a suspended jail sentence for attempted possession of a controlled substance. In 2004, the Department of Homeland Security detained him upon his return from a visit to Mexico and placed him in removal proceedings on the ground that his conviction rendered him inadmissible. An Immigration Judge ordered him removed from the United States, and the Board affirmed. The Tench Circuit subsequently denied Petitioners’ petition for review. From Mexico, Petitioner filed a timely motion to reopen his removal proceedings based on ineffective assistance of counsel. The Board denied the motion on jurisdictional grounds, “concluding pursuant to the post-departure bar that it lacked authority to review a motion to reopen filed by a noncitizen outside of the United States.” He then “petitioned for review of the Board’s decision, arguing that 8 C.F.R. § 1003.2(d) improperly curtails his right under 8 U.S.C. § 1229a(c)(7) to file a motion to reopen. . . . [T]he panel denied his petition, concluding that it was bound by circuit precedent to uphold the post-departure bar,” relying on Rosillo-Puga, 580 F.3d 1147 (10th Cir. 2009).

The Tenth Circuit granted rehearing en banc to reconsider its decision in Rosillo-Puga, and now overturns it and its progeny. The en banc rehearing considered “whether the so-called postdeparture bar regulation at 8 C.F.R. § 1003.2(d) remains valid in this circuit considering Congress’ 1996 amendment to the Immigration and Nationality Act. The amended Act grants noncitizens the right to file one motion to reopen their immigration proceedings. However, the Board of Immigration Appeals contends that it lacks jurisdiction to consider motions to reopen filed by individuals who have already departed the United States, despite the fact that such a limitation appears nowhere in the statutory text.”

In Rosillo-Puga v. Holder, a divided Tenth Circuit panel upheld the post-departure bar as an authorized exercise of the Attorney General’s rulemaking authority. However, since then, six circuits have consecutively invalidated the regulation. “Rather than stand alone in upholding the post-departure bar, [the Tenth Circuit chose] to overturn Rosillo-Puga, . . . [holding] that the subject regulation impermissibly interferes with Congress’ clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. § 1229a(c)(7).”

Tenth Circuit: Congress Had Authority to Require Federal Sex Offender on Supervised Release to Comply with Registration Provisions under SORNA

The Tenth Circuit Court of Appeals published its opinion in United States v. Carel, Jr. on Friday, December 30, 2011.

The Tenth Circuit affirmed Petitioner’s conviction and sentence. Petitioner, a federally adjudicated sex offender, was convicted of knowingly failing to update his sex offender registration as required by the Sex Offender Registration and Notification Act (SORNA). On appeal, he contends that SORNA’s sex offender registration provision is unconstitutional. The Court disagreed and found that, based on Congress’s authority to enact Petitioner’s original statute of conviction, Congress had corresponding Necessary and Proper Clause authority to require him—a federal sex offender on supervised release for violating that statute—to comply with the registration provisions.

[UPDATED] Corporate Practice Update: Patent Reform, Social Media Policy, and Tax Topics for Privately-Held Businesses

The America Invents Act, which was signed into law this fall, is the first major overhaul of our nation’s patent law in almost 50 years. Among its many significant provisions, the Act will change the United States patent system from “first-to-invent” to “first-to-file,” aligning the United States with the international standard. New procedures will be also established for third-party challenges to patent and applications, and changes will be made regarding who can file, when they can file, and what prior art can be used against them.

The Corporate Practice Update Series has been postponed.

The effects of the changes will be of particular importance for corporate counsel and privately held businesses, and will be discussed at a CLE program on December 7, 2011 as part of the Corporate Practice Update Series. Along with these developments, the Privately Held Businesses program will cover other issues, including legal issues in social media, social media policy for a privately-held company, and tax topics for small businesses.

The program is being presented by some of Colorado’s leading business entity experts:

  • Fern O’Brien, Esq.
  • Henry Smith, Jr., Esq.
  • Liane Heggy, Esq.

And, don’t miss the other great sections of the Corporate Practice Update Series, covering the Civil Access Pilot Project, Business Entity Update, Securities, Franchises, M&A, and Ethics.

Obama Signs New Law to Permit Year-Long Recreation Opportunities on Forest Service Ski Areas

On Monday, November 7, 2011, President Obama signed H.R. 765, the “Ski Area Recreational Opportunity Enhancement Act of 2011,” into law. The new legislation clarifies the authority of the Secretary of Agriculture regarding additional recreational uses of National Forest System land that is subject to ski area permits.

According to Summit Daily, the Ski Area Recreational Opportunity Enhancement Act “permits year-long recreation opportunities on U.S. Forest Service ski areas, boosting rural economies while continuing to maintain stringent environmental safeguards.”

The new legislation amends the National Forest Ski Area Permit Act of 1986, which allowed only Nordic and alpine skiing. Under the new legislation, other snow sports may be permitted on National Forest System lands, as well as year-round activities. Potential permitted activities may include zip lines, mountain bike terrain parks and trails, Frisbee golf courses and ropes courses.Currently, the Forest Service averages 27 million visits annually to ski areas. This has contributed $4 billion every winter and created approximately 80,000 full-, part-time and seasonal jobs in hard-hit rural communities. Under the new legislation, the Forest Service anticipates roughly 600,000 more summertime visits that may create and sustain up to 600 more full-, part-time and seasonal jobs. The addition of summer recreation is expected to infuse almost $40 million of direct funding into local mountain communities.

Protecting natural resources will remain a priority and year-long facilities will be subject to the same review and approval processes as those for ski facilities such as the construction of ski lifts and ski trails.

Not all recreation activities will be permitted. Those considered to be destructive to the natural environment will be excluded, including tennis courts, water slides and water parks, swimming pools, golf courses and amusement parks.

“The national forests have always been some of America’s greatest playgrounds,” said U.S. Forest Service chief Tom Tidwell. “It is exciting that our ski areas will now be able to offer more recreational opportunities and economic benefits.”

The America Invents Act – A Discussion of the Recent Significant Changes in U.S. Patent Law

Co-Sponsored by the CBA Intellectual Property Section

The America Invents Act, which was signed into law by the president last week, is the first major overhaul of our nation’s patent law in almost 50 years. Among its many significant provisions, the Act will change the United States patent system from “first-to-invent” to “first-to-file,” aligning the United States with the international standard. New procedures will be also established for third-party challenges to patent and applications, and changes will be made regarding who can file, when they can file, and what prior art can be used against them.

Other provisions of the Act affect hot-topic issues, like false marking cases, business method and tax strategy patents, and joinder of unrelated parties by so-called trolls. These and other changes raise a host of questions for IP attorneys and their clients.  When and how should clients disclose their inventions?  How should clients think about the new options for challenging their competitors’ patents?  What tactics can clients use in anticipation of future derivation or post-grant proceedings?

A post by David Donoghue, patent attorney and Rocky Mountain IP Institute faculty member, reveals a few key elements of the legislation, but we invite you to learn everything you need to know about the fundamental changes to Intellectual Property and Patent Law at our CLE event on October 5, The America Invents Act – A Discussion of the Significant Changes in US Patent Law. Be the best advocate for your client by attending and making sure you know all the ins and outs of the new legislation.

CLE Program: The America Invents Act – A Discussion of the Significant Changes in US Patent Law

This CLE presentation will take place on Wednesday, October 5. 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.

David Donoghue: 4 Key Provisions of the Patent Reform Act for Patent Litigators

The patent blogs are abuzz with detailed analysis of cloture votes, this month’s Senate hearings and the Senate’s overwhelming passage of the America Invents Act (the “AIA”).  With the AIA signed into law by President Obama last week, I am beginning a series of posts looking at its key provisions. This is the first of those posts.  It is based upon a post from earlier this week at my Retail Patent Litigation Blog.

Here are four key provisions of the AIA for patent litigators and litigants:

  1. Smaller Patent Troll Suits: The most immediate impact on patent litigation will be Section 19, limiting joinder in a single suit of unrelated parties. This is not the more extreme restrictions on venue or joinder that many had hoped for. But it will have some positive impact on patent troll litigation. For suits filed on or after the date of enactment, plaintiffs will only be able to join related parties in a single suit — for example, multiple manufacturers, distributors or resellers of an identical product. And while cases against unrelated parties could still be joined for discovery, they will not be able to be joined for trial. At first glance, this is not much of a barrier to entry for patent trolls. Very few defendants get to trial, and cases may still be consolidated for discovery purposes at the court’s discretion. Where a troll today could pay one $350 filing fee and sue 100 unrelated defendants, after enactment that same troll would have to file 100 suits and pay $35,000 in filing fees. $35,000, however, is dwarfed by the settlement demands in many cases. The hassle of filing the extra suits and the related filing fees, however, may be enough to prevent suits against some of the much smaller entities that almost always end up in these suits. And the requirement of separate suits will allow defendants a much greater ability to seek transfer to an appropriate venue. So, while this is not the sea change that many sought, it is a real benefit to retailers who are tired of being sued in Texas and want a better shot at transferring cases. This Section only applies to cases filed after enactment, not pending cases. So, existing cases will not be impacted.
  2. Post-Grant Review: The AIA establishes a brief window for post-grant and inter partes review in Section 6. Third parties may challenge the validity of any claim of a patent for nine months after a patent is granted or issuance of a reissued patent. But you cannot seek post-grant review after filing a suit involving the patent. And when post-grant review ends in a final Board decision, you give up the right to use the arguments used in post-grant review or arguments that could reasonably have been used, in a later ITC proceeding or district court litigation.
  3. False Marking Restrictions: Private citizens that file false marking claims will be required to prove competitive injury and their damages will be limited to the injury. Additionally, Section 16(b) excludes marking with an expired patent from the false marking statute. Furthermore, Section 16 applies to all cases pending when the AIA is enacted, as well as cases filed thereafter. Section 16 will clear out many of the existing false marking cases, but leaves considerable room for competitor false marking cases.
  4. First to Invent: One of the most publicized changes to the U.S. patent laws is the move to a first-to-file patent system, the system used by most of the rest of the world. The first-to-file system incentivizes filing patents as quickly as possible to avoid an earlier filing by a competitor. Section 3 softens the first-to-file system providing for a proceeding between patent owners if the junior patent holder can show that the senior patent holder’s invention was derived from the junior patent holder’s invention. These “derivation proceedings” will replace the current, seldom-used interferences.

Of course, there is much more to the AIA, but these key changes are a good way to start digging into it. If there are other provisions you view as on par with these four from a litigation perspective, I would love to hear about them. Future posts will look at some of the other provisions of the AIA.

Editor’s Note: Recent patent reform is the subject of a CLE program on Wednesday, October 5, entitled The America Invents Act – A Discussion of the Significant Changes in U.S. Patent Law. The event is being co-sponsored by the CBA Intellectual Property Section and presented by Daniel J. Sherwinter, Esq. Click here to register for the program or the live webcast.

R. David Donoghue is a trial attorney and a partner in Holland & Knight’s Intellectual Property Group focusing upon intellectual property litigation and particularly upon patent disputes. He was a faculty member at the 9th Annual Rocky Mountain Intellectual Property and Technology Institute. David blogs at the Chicago IP Litigation Blog, where this post originally appeared on September 9, 2011.

Colorado Remembers 9/11: Join Our Elected Officials for a 10th Anniversary Commemorative Concert

September 11, 2011, marks the tenth anniversary of the 9/11 terrorist attacks. In remembrance of this national tragedy, Governor John Hickenlooper and Mayor Michael Hancock are hosting a commemorative event and concert to honor victims, first responders, and members of the United States Armed Forces on Sunday, September 11, 2011, at Civic Center Park in Denver (Colfax and Broadway) from 1:00 – 6:00 pm.

Both the Governor and Mayor will speak at the event, along with Secretary of the Interior Ken Salazar and United States Senators Mark Udall and Michael Bennet.

Other members of the Colorado Congressional Delegation will also be in attendance, including Diana DeGette, Doug Lamborn, Ed Perlmutter, Mike Coffman, Jared Polis, and Cory Gardner.

The event is free and open to the public and is being held in partnership with The Counterterrorism Education Learning Lab (The CELL), The Denver Post and AEGLive Rocky Mountains.

The afternoon will feature a special musical tribute by The Beach Boys, Tyler Ward, and a performance by the Colorado Symphony. The program will begin with a remembrance procession, led by the Colorado National Guard, firefighters, law enforcement, first responders, and memorial pipes and drums, which will be followed a presentation by the Honor Guard, a wreath laying ceremony, firing salute, taps, and a military flyover.

Lawn seating will be available on a first-come, first-served basis; arriving early is encouraged, as are the use of blankets or low-rise concert/beach chairs. Attendees are welcome to bring their own picnics; concessions as well as a beer garden will also be available at the event, which will take place rain or shine.

Click here for more information about Colorado Remembers 9/11.

Raising the Bar: “Famous Firsts” Honored by the Colorado Women’s Bar Association Foundation

Last night, Thursday, September 1, 2011, hundreds of attorneys, friends, and others gathered at the Brown Palace in downtown Denver to celebrate three women, pioneers of the legal profession in Colorado. Jean Dubofsky, Gale Norton, and Patricia Schroeder were honored by the Colorado Women’s Bar Association Foundation as “famous firsts” for Colorado women:

      • Jean DubofskyFirst Woman Justice of the Colorado Supreme Court (1979)
        • Jean is an attorney who has represented litigants in state and federal courts – primarily appellate courts – in constitutional tort, workers’ compensation, commercial, criminal, civil rights, and family law cases.
        • She served as a justice on the Colorado Supreme Court from 1979 until 1987, the first woman appointed to the court. Subsequently, she was lead counsel for the plaintiffs in the successful constitutional challenge to Amendment 2 to the Colorado Constitution; the case, Romer v. Evans, is the first time that the United States Supreme Court recognized gay rights (1996).
        • Jean serves on the boards of Bell Policy Center, the Colorado Center for Law and Policy, Rocky Mountain Wild, and Boulder Community Hospital. She is a 1964 graduate of Stanford University and and a 1967 graduate of Harvard Law School.
      • Gale NortonFirst Woman Attorney General of Colorado (1990) and First Woman Interior Secretary (2001)
        • Gale has handled multi-billion-dollar and high-profile litigation involving products liability, antitrust, taxation, environmental, and constitutional issues, including arguing cases before the United States Supreme Court and negotiating one o the largest lawsuit settlements in history. Norton served two terms as the elected Attorney General of Colorado, from 1991-1999.
        • As Secretary of the Interior, from 2001-2006, she was responsible for managing of 20% of the land area of the United States, a Fortune-500-sized budget, and a workforce of 70,000 employees.
        • Gale returned to Colorado as General Counsel for Royal Dutch Shell Unconventional Oil, from 2007-2010. She is currently on boards for the Federalist Society, the Reagan Alumni Association, and the University of Colorado Renewable and Sustainable Energy Initiative.
      • Patricia SchroederFirst Woman Elected to the United States Congress from Colorado (1972) and the First Woman to Serve on the House Armed Services Committee (1973)
        • Graduating from law school in 1964, Pat worked at the National Labor Relations Board, taught in local universities, and was a hearing officer for the Colorado State Personnel system. After winning her campaign to serve in the United States Congress, she requested a seat on the Armed Services Committee; though it caused upheaval in the House, she got on and served on that committee and Judiciary for 24 years.
        • Retiring in 1997, Pat taught at Princeton University’s Woodrow Wilson School of Public and International Affairs. After, she was the President and CEO of the Association of American Publishers. Currently, she is Chair of the English Speaking Union, the vice char of the Marguerite Casey Foundation, on the Boards of Common Cause, the Communications Consortium, and the Child Welfare League of America.
        • Pat is also the author of two books: “Champion of the Great American Family” and “24 Years of Housework…and the Place is Still a Mess: My Life in Politics.”

The event was emceed by Tamara Banks, who interviewed all of the honorees. The interviews can be viewed below and will also air this Sunday, September 4, 2011 on PBS Channel 12.2.

Watch the full episode. See more Studio 12.

The Colorado Women’s Bar Association was founded in 1978 and is the largest specialty bar association in Colorado and one of the largest and most influential bar associations in the country. It’s mission has remained the same since its inception: to promote women in the legal profession and the interests of women generally.

Tenth Circuit: Charging an Amenity Fee to Visit Mount Evans is Not Beyond the Forest Service’s Authority

The Tenth Circuit Court of Appeals issued its opinion in Scherer v. United States Forest Service on Tuesday, August 9, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner alleges that the Forest Service’s charge of an amenity fee to enter Mount Evans is facially inconsistent with Congress’s directions, and must be held null and void in application to the public and all those who seek to enter the park. The Court, however, disagreed and found that the fee is consistent with Congress’ mandates regarding national parks. The Legislature has said that the Forest Service may sometimes charge visitors to Mount Evans; as such, some lawful applications of the policy do exist and run counter to the broad, facial challenge brought by Petitioner.

The Recreation Enhancement Act (REA) “allows the Forest Service to impose ‘amenity fees’ in areas that ‘provide[] significant opportunities for outdoor recreation,’ where there are ‘substantial Federal investments’ and certain ‘amenities’ — amenities defined to include, among other things, interpretive exhibits, a permanent toilet, and security services.” However, “the statute prohibits the Service from ‘charg[ing] . . . [s]olely for parking, undesignated parking, or picnicking along roads or trailsides[,] . . . [f]or persons who are driving through, walking through, boating through, horseback riding through, or hiking through Federal recreational lands and waters without using the facilities and services[,] . . . [f]or camping at undeveloped sites[,] . . . [or] [f]or use of overlooks or scenic pullouts.'” Petitioner claims that the Mount Evans Implementation Plan disregards these legislative limits by sometimes charging people who seek to do only these things.

The Court disagreed because many visitors do take advantage of the amenities for which the Forest Service may charge the fee. “[T]he amenities come as a sort of package deal: paying the fee entitles a visitor to use them as much or as little as she chooses. So whether this results in the Forest Service charging for an activity that’s supposed to be free under § 6802(d)(1) depends on what a particular visitor chooses to do.” Therefore, it is not the case that every time the Forest Service collects the amenity fee it exceeds its statutory authority. “And given this, [Petitioner] can’t meet the burden of showing that there are no set of circumstances where the Implementation Plan’s fee is lawfully collected.” The Court does note that a more specific challenge to the fee, as applied to Petitioner or certain particular visitors, may be successful; the policy itself is not immune from attack.

Judge R. Brooke Jackson Confirmed to U.S. District Court for Colorado

On Tuesday, August 2, 2011, the United States Senate confirmed Jefferson County District Court Chief Judge R. Brooke Jackson as the final federal judge for the United States District Court for Colorado. Jackson will fill the second of two vacancies that have been open on the court since 2008. Judge Martinez was confirmed to the court last year.

Jackson has been a judge in the First Judicial District, which serves Jefferson and Gilpin counties, since 1998, and assumed the role of chief judge in 2003. He was first recommended for the United States District Court judgeship by Senators Mark Udall​ and Michael Bennet in 2009; President Obama nominated him in 2010, and renominated him in January when the new congress convened.

J. Robert Brown, Jr.: Shareholder Protection Act of 2011 – Preemption, Prevention and Protection (The Consequences of the Legislation) – Part 5

We are discussing the Shareholder Protection Act of 2011. So if this Act passes in its present form, what will be the consequences?

In some respects, the consequences will be modest.  Certainly, they will require companies wanting to make campaign contributions to act proactively and submit the matter to shareholders for approval.  The increase in activism notwithstanding, shareholders still tend to approve what management asks.

On the other hand, there is reason to believe that the adoption of the provision will sharply reduce campaign contributions by public companies.  First, submitting the matter to shareholders will generate considerable publicity, much of it bad.  Companies will sometimes forgo contributions rather than submit to a public pillorying.

The likelihood of this occurring will be enhanced by language in the Act that provides a safe harbor for investment managers who decide to divest because of disagreement over political expenditures.  As the provision states:

(f) Safe Harbor for Certain Divestment Decisions- Notwithstanding any other provision of Federal or State law, if an institutional investment manager makes the disclosures required under subsection (e), no person may bring any civil, criminal, or administrative action against the institutional investment manager, or any employee, officer, or director thereof, based solely upon a decision of the investment manager to divest from, or not to invest in, securities of an issuer due to an expenditure for political activities made by the issuer.’

In other words, those unhappy with the campaign contributions can disinvest without risk.  Shareholders of mutual funds could, therefore, put pressure on the advisers to do exactly that.

Similarly, the SEC is instructed to conduct an “annual assessment of compliance” with these provisions and and submit a report to Congress.  At the same time, the GAO is instructed to “periodically evaluate and report to Congress on the effectiveness of the oversight by the Securities and Exchange Commission of the reporting and disclosure requirements”.  In other words, Congress will receive reports on the provision.  Boards may not want to see their company’s name on a report that suggests a clear political preference.

Second, companies will sometimes forgo seeking shareholder approval because of the risk of liability.  For listed companies, boards will have to approve specific expenditures of more than $50,000.  As a result, they will be “authorizing” the payments.  The Act provides that those improperly authorizing payments will be liable for treble damages.

Moreover, the payments themselves may be a violation of fiduciary obligations, irrespective of the treble damages provision.  The shareholder law suit against News Corp apparently alleges, among other things, that the company improperly made a “$1,250,000 contribution to the Republican Governor’s Association last year.”  Rather than confront these risks, it will be easier to avoid having the authority in the first instance.

To the extent that this Act is adopted, therefore, campaign contributions will likely fall, state law will be preempted yet again, and the role of the SEC in the governance process will be expanded.

For more than two decades, J. Robert Brown, Jr. has taught corporate and securities law, with a particular emphasis on corporate governance. He has authored numerous publications in the area and several of his articles have been cited by the U.S. Supreme Court. He is a professor at the University of Denver Sturm College of Law and blogs for The Race to the Bottom, where this post originally appeared on July 28, 2011.