July 14, 2019

Archives for September 2010

Tenth Circuit: Opinions, 9/29/10

The Tenth Circuit on Wednesday issued no published opinions and three unpublished opinions.

Unpublished

United States v. Butterfield

Nasious v. Robinson

Moore v. Delta County Police

CLE: Proposed IRS Rules on Series LLCs and Series Statutory Trusts

A number of domestic jurisdictions (Delaware, Connecticut, Illinois, Iowa, Nevada, Oklahoma, Tennessee, Texas, Utah, Virginia, Wyoming, and Puerto Rico) have enacted statutes providing for the creation of entities that may establish series, including limited liability companies (series LLCs) and business or statutory trusts (series statutory trusts).

In general, statutes provide that a limited liability company or statutory trust may establish separate series. A series has “associated” with its specified owners, assets, rights, obligations, and investment objectives or business purposes. The interests of the owners associated with a series are comparable to ownership of the series. Generally, the debts, liabilities, and obligations of one series generally are enforceable only against the assets of that series and not against assets of other series or of the series LLC or series statutory trust.

Under current law, there is little specific guidance regarding whether for Federal tax purposes a series is treated as an entity separate from other series or the series LLC or series statutory trust, as the case may be, or whether the company or trust and all of its series should be treated as a single entity.

On September 14, 2010, the IRS issued proposed rules (.pdf) regarding Series LLCs and Series Statutory Trusts generally treating series as separate entities for Federal tax purposes if they are established under a statute with provisions similar to the series LLC or series statutory trust statutes currently in effect in several states. The proposed regulations, however, leave some questions unanswered.

These questions will be explored in an upcoming CLE program taught by attorneys John DeBruyn, Robert Keatinge, Herrick Lidstone, Allen Sparkman, Tony van Westrum, and Tom Yearout:

Friday, October 8, 2010
Attend LIVE or via live WEBCAST

PROGRAM AGENDA:
8:00 – 8:30 am Registration (Continental Breakfast provided)
8:30 – 9:30 am The Series Concept and Tax Ramifications: What is a Series and How Do They Work?

  • Classification of a Series that is Treated as a Separate Entity for Federal Tax Purposes
  • Entity Status of Series Organizations
  • Continuing Applicability of Tax Law Authority to Series
  • Effect of Local Law Classification on Tax Collection
  • Employment Tax and Employee Benefits Issues
  • Statement Containing Identifying Information about Series
9:30 – 10:30 am Where do we go from here? Should Colorado enact “Series LLC” or “Series Statutory Trust” provisions?
10:30 am Adjourn

Tenth Circuit: Opinions, 9/28/10

The Tenth Circuit on Tuesday issued three published opinions and five unpublished opinions.

Published

In Raymond v. Astrue, the Court affirmed the district court’s denial of supplemental security income (SSI). Petitioner claimed he was entitled to such benefits as he was unable to work due to a number of maladies; the Respondent found that Petitioner failed to meet the threshold for such benefits and denied the application, which was affirmed by an ALJ. While Petitioner could not perform his past work, he was suited to work in such positions as a sales assistant or office helper, jobs of significant number in the national economy.

In Izzo v. Wiley, the Court affirmed the district court’s denial of Petitioner’s writ of habeas corpus. Petitioner was denied eligibility for the Bureau of Prisons’ Elderly Offender Home Detention Pilot Program (Pilot Program). To be eligible for the Pilot Program, the prisoner must be over the age of 65 and have served the greater of 10 years or 75% of the term of imprisonment to which the offender was sentenced. Contrary to Petitioner’s arguments, the Court found that the “term of imprisonment” refers to the term imposed by the sentencing court and does not consider good time credit.

In Oldenkamp v. United American Ins. Co., the Court affirmed the district court’s grant of summary judgment for Respondent insurance company regarding the bad faith claims alleged against them, and reversed the district court’s grant of summary judgment for Petitioners on breach of contract claims. Petitioners were denied coverage for surgery for their infant’s congenital defect; however, Oklahoma law allows for insurance companies to impose a waiting period for coverage of such pre-existing conditions, despite an earlier regulation which prohibited denial of coverage for congenital anomalies for dependent children.

Unpublished

Peay v. Murphy

United States v. Armstrong

Scott v. Green

Anderson v. Cline

Wideman v. State of Colorado

Want to Attend the Upcoming VA Accreditation Program? Begin the Application Process Now

On December 2, 2010, CBA-CLE will offer a second round of VA Accreditation for those who were unable to attend the highly-acclaimed program at our Elder Law Retreat in Breckenridge. Registration for the program will be available soon, but we encourage you to begin the application process with the Department of Veterans Affairs now.

If you want to take this class you should file your paperwork by at least October 4, 2010, to allow extra time for processing over the holidays and ensure you receive your letter before the December 2nd class. Most applications are processed within 30-45 days. You can link to the Application for Accreditation as a Claims Agent or Attorney here.

The program will satisfy the 3 hours of continuing education credit required by the Veterans Administration for accredited attorneys.  Keep in mind that any attorney who wants to assist clients with a claim for Veterans Benefits must be accredited.

See 38 CFR §5901 et seq. for the rules relating to accreditation of attorneys. For additional information, visit the Veteran’s Administration FAQs on their website.

The program will take place December 2, 2010, from 9am – noon, at the Colorado Bar Association CLE classroom at 1900 Grant Street in Denver, and will also be available via live webcast. It will be taught by Valerie Peterson, Esq., Executive Director of Elder Counsel.

Colorado Supreme Court: Interrogation of Medically Confined Defendant Violated Due Process

The Colorado Supreme Court issued its opinion in Effland v. People on September 27, 2010.

Due Process—Miranda Custody Requirements—Suppression of Involuntary Statements—Prosecutorial Misconduct.

Defendant was interrogated by police while in a hospital bed after a failed suicide pact that resulted in the death of his wife and one of his daughters. A uniformed police officer guarded defendant’s room while two investigating officers, sitting close to defendant and between him and the closed door, interrogated him. Defendant was confined for medical reasons, and the police told him that he was not in custody. Defendant repeatedly said he wished to speak to an attorney before speaking to the officers. After consulting with the district attorney, the officers told defendant he was not entitled to an attorney and continued questioning him by eliciting short answers. Under these circumstances, the Supreme Court determined defendant was in custody at the time he was interrogated and that his statements were involuntary under the due process clauses of the U.S. and Colorado Constitutions and therefore should be suppressed. Accordingly, the Court reversed the ruling by the court of appeals that he was in custody for Miranda purposes.

The Court declined to suppress defendant’s statements on the ground that the district attorney, who told the officers that defendant was not entitled to an attorney, committed prosecutorial misconduct. Because the district attorney merely explained his opinion on an undecided question of law, no outrageous government conduct occurred. The court of appeals’ judgment was affirmed in part and reversed in part.

Summary and full case available here.

Colorado Supreme Court: Award of Costs to Non-Governmental Entity Under C.R.C.P. 54(d) Not Unconstitutional

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of the City and County of Broomfield: City and County of Broomfield v. Farmers Reservoir and Irrigation Co. on September 27, 2010.

Exemption From Litigation Costs Under C.R.C.P. 54(d).

The Supreme Court affirmed the water court’s award of costs against Farmers Reservoir and Irrigation Company, holding that mutual ditch companies are not subdivisions of the state and therefore are not exempt from the award of costs under C.R.C.P. 54(d). The Court also held that (1) Rule 54(d) does not violate the due process or equal protection guarantees contained in the U.S. and Colorado Constitutions; (2) the award of costs against a non-governmental entity neither infringes on a fundamental constitutional right nor implicates a suspect class; and (3) Rule 54(d)’s provision exempting the government from costs in litigation is rationally related to the goal of protecting the public treasury and thus constitutional.

Summary and full case available here.

Colorado Supreme Court Adopts Proposed Changes to C.R.C.P. 16, 47

The Colorado Supreme Court this month adopted two proposed changes to the Colorado Rules of Civil Procedure (C.R.C.P.) that were submitted to the court for consideration earlier this year.

The amendment to C.R.C.P. 16, “Case Management and Trial Management,” adds language to the Rules that in jury trials, “the parties shall confer regarding the amount of time requested for juror examination and provide their positions along with their reasons therefore.”

The amendment to C.R.C.P. 47, “Jurors,” adds language explaining the circumstances under which a party may request additional time for juror examination.

The court approved the amendments, en banc, on September 16, and became effective immediately.

Tenth Circuit: Opinions, 9/27/10

The Tenth Circuit on Monday issued one published opinion and two unpublished opinions.

Published

In Flores v. Monumental Life Ins. Co., the Court affirmed the district court’s grant of summary judgment for Petitioner’s bad-faith and negligence per se claims, but reversed and remanded the district court’s grant of summary judgment for Petitioner’s breach of contract claims. Petitioner had accidental death insurance that provided compensation should death occur as the result of an injury caused by an accident; benefits were denied under the policy as death was found to be caused by sickness, rather than directly by an earlier fall. However, because Petitioner may be entitled to benefits due under the insurance policy, summary judgment was inappropriate.

Unpublished

Mauchlin v. Bier

United States v. Williams

Quality Assurance and Oversight of CFIs and PCs in Domestic Relations Cases – Feedback Requested

In January 2010, Chief Justice Mary Mullarkey charged the Supreme Court Standing Committee on Family Issues (“Family Issues Committee”) to study the quality assurance and oversight of Child and Family Investigators (CFIs) and Parenting Coordinators (PCs) in domestic relations cases. The Family Issues Committee has preliminarily identified that changes to the current Chief Justice Directives and statutes will likely be required to achieve system improvement.

It welcomes your feedback and also asks that you send this to your colleagues as appropriate. You will want to review the Interim Report and White Paper regarding Appointments of Parenting Coordinators before submitting the Online Comment Form by 9/30/2010. To maximize our ability to consider all comments, comments are limited to 200 words per recommendation.

The documents and comment form are also available on the web page for the Supreme Court Standing Committee on Family Issues.

Bankruptcy Forms Now Available as Editable PDF Templates

The United States Bankruptcy Court for the District of Colorado has made all of its forms available as editable PDF templates. Local Forms may be downloaded and saved, or filled out online and printed, from the Forms page on the court’s website.

Tenth Circuit: Opinions, 9/24/10

The Tenth Circuit on Friday issued no published opinions and one unpublished opinion.

Unpublished

United States v. Chism

Legal Trends in Class Arbitration: Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.

A class arbitration waiver is a provision in a pre-dispute agreement that requires parties to arbitrate all of their disputes and waives the plaintiff’s right to participate in any class action lawsuit or class arbitration. Some interesting case law, described below, has developed around these waivers in recent years, and will be covered in a program in our classroom (and via webcast) on September 27 at noon.

Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003): In a plurality decision, the Supreme Court held that an arbitrator, rather than a court, has the power to determine if a contract remains silent with regard to class arbitration.

Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010): The Court held that no party is obligated to submit to class arbitration under the Federal Arbitration Act (FAA) when an arbitration agreement remains silent about the parties’ intent to allow for class arbitration, and clarified that Bazzle did not establish a standard for determining whether an arbitration agreement allows for class arbitration. The impact of the Court’s decision in Stolt-Nielsen on arbitration jurisprudence remains unclear because the Court refrained from deciding how parties could demonstrate intent to include class arbitration absent express language in a contract, and whether the FAA preempts state courts from permitting class arbitration under state law in such situations.

What’s Next?

The Supreme Court has now granted certiorari to AT&T v. Concepcion, a case that will allow the Court to decide whether the FAA preempts states from conditioning the validity of arbitration provisions on the inclusion of specific procedures, including class arbitration. If the Court finds that the FAA preempts state law regarding class arbitration waivers, then parties with unequal bargaining power may be limited in their ability to seek judicial review at either the state or federal level.

The impact of Stolt-Nielsen depends significantly on the outcome of the Supreme Court’s decision in AT&T v. Concepcion, which will clarify whether Stolt-Nielsen preempts state law on class arbitration issues.

Excerpts from “Legal Trends and Best Practices in Class Arbitration: Enforcing or Invalidating Class Actions Arbitration Waivers”, Dirk W. de Roos, Esq., Faegre & Benson LLP.

To learn more about the legal theories and cases impacting class actions arbitration, register today for a one hour program on September 27th at noon, presented by Dirk de Roos. The program is also available via live webcast.