August 24, 2019

Archives for December 2010

SEC Proposes Changes to Investment Advisors Act and Regulation D

Over the last two months, the Securities and Exchange Commission (SEC) voted to propose several new rules to strengthen the SEC’s oversight of investment advisers and fill key gaps in the regulatory landscape.

The SEC’s proposed rules would implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act that, among other things:

  • Facilitate registration of advisers to hedge funds and other private funds with the SEC.
  • Implement the Dodd-Frank Act’s mandate to require reporting by certain advisers that are exempt from SEC registration.
  • Increase the asset threshold for advisers to register with the SEC.
  • Define “venture capital fund” and provide clarity regarding certain exemptions to investment adviser registration.

The SEC also proposed amendments to rules that would require disclosure of greater information by investment advisers and the private funds they manage, as well as amendments that would revise the Commission’s pay-to-play rule.

Additionally, a new rule was proposed that would help those managing their own family’s financial portfolios determine whether their “family offices” can continue to be excluded from the Investment Advisers Act of 1940.

Family offices are entities established by wealthy families to manage their money and provide tax and estate planning and similar services.

Historically, family offices have not been required to register with the SEC under the Advisers Act because of an exemption provided to investment advisers with fewer than 15 clients. The Dodd-Frank Act removes that exemption to enable the SEC to regulate hedge fund and other private fund advisers, but includes a new provision requiring the SEC to define family offices in order to exempt them from regulation under the Advisers Act.

The Commission is proposing to define a family office as any firm that:

  • Provides investment advice only to family members, as defined by the rule; certain key employees; charities and trusts established by family members; and entities wholly owned and controlled by family members.
  • Is wholly owned and controlled by family members.
  • Does not hold itself out to the public as an investment adviser.

These proposed changes were the subject of a CLE on December 15, 2010, presented by Jacqueline M. Benson, Esq.

If you are interested in the Dodd-Frank Act Series: Changes to the Investment Advisers Act and Regulation D presentation, it is available for purchase in two formats: video on-demand and mp3 download.

Matheson Confirmed to Tenth Circuit Court by U.S. Senate

As reported by Law Week Colorado, the U.S. Senate confirmed Scott M. Matheson, Jr. to the Tenth Circuit Court of Appeals last week. Matheson was nominated for the position by President Obama in March and was approved by a senate committee in June.

Matheson is currently the Hugh B. Brown Presidential Endowed Chair at the University of Utah’s S.J. Quinney College of Law.

Tenth Circuit: Opinions, 12/28/10

The Tenth Circuit on Tuesday issued one published opinion and one unpublished opinion.


In Hafed v. Federal Bureau of Prisons, the Court granted Appellant’s motion for leave to proceed in forma pauperis, but denied to proceed to the merits of the interlocutory appeal at the present time. The Court determined that “a dismissal under 28 U.S.C. § 1915A counts as a strike when the action was dismissed as frivolous, malicious, or for failure to state a claim, the same grounds listed in 28 U.S.C. § 1915(g). As regards when a strike ripens and can be counted, a strike counts against a prisoner from the date of the Supreme Court’s denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not. And if the prisoner did not file a direct appeal in a circuit court, a district court’s dismissal counts as a strike from the date when his time to file a direct appeal expired.” Under this review, Appellant had three strikes and “is barred by the ‘three strikes rule,’ which requires prepayment of the entire filing fee . . . before [the Court] would consider it, unless he had made credible allegations that he was in ‘imminent danger of serious physical injury.'”


Young v. Eskestrand

Molly Foley-Healy: HOA Registry – New Information from Division of Real Estate

The Colorado Division of Real Estate (“Division”) has just provided the following updated information on the HOA Registry:

  1. All HOAs must formally register with the Division of Real Estate prior to March 1, 2011.
  2. The online registration process will be available for use on January 3, 2011.
  3. The registration fee for each HOA will be $8.93. Associations with annual revenues of $5,000 or less OR are not authorized to levy assessments and do not have any revenue – are not required to pay the $8.93 fee.
  4. All registrations must be completed online. The HOA Information and Resource Center will not accept paper applications or cash or checks for payment.

As we noted in our December 17th blog posting, all associations in Colorado have been granted a temporary and automatic registration by the Division that is valid through February 28, 2011. The Division promulgated this emergency rule to ensure that associations were not penalized for failing to register by the initial statutory deadline of January 1, 2011.

We will provide you with a link to the online registration as soon as it becomes available.

Molly Foley-Healy blogs at Winzenburg Leff Purvis & Payne’s Colorado Homeowners Association Law blog and this post originally appeared here on December 29, 2010. Click here to read all posts by this author.

Click here for more HOA Law Updates.

Tenth Circuit: Opinions, 12/27/10

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


In Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort, the Court reversed and remanded the district court’s orders denying Petitioners’ motions to dismiss. Respondent, a provider of business management training and consulting services, sold “a single-person license for one of [Respondent]’s online training programs;” Petitioners then “recorded and used portions of that program without permission to train more than one employee.” The suit brought against Petitioner Indian tribe was dismissed as the tribe was “entitled to sovereign immunity and had not clearly waived that immunity by entering into licensing agreements with [Respondent] that contained forum-selection clauses.” While the Court determined that the other Petitioners were also entitled to such immunity. they reversed and remanded to determine if they “had waived whatever immunity they possessed by entering into [Respondent]’s licensing agreements containing forum-selection clauses.”


United States v. Vasquez

Matthews v. Jones

Finalists Selected to Fill Judgeship in Weld County

Last week, the Nineteenth Judicial District Nominating Commission nominated three candidates for a Weld County court judgeship created by the appointment of the Honorable Timothy Kerns to the District Court bench, effective January 1, 2011.

Nominees for the bench are Katharina Clarissa-Graham Booth of Erie, John Joseph Briggs of Windsor, and Keith Coleman of Greeley. All were selected by the commission on December 14, 2010.

Under the Colorado Constitution, Governor Ritter has until December 30, 2010 to appoint one of the nominees as county court judge for Weld County.

Comments regarding any of the nominees can be emailed to the Governor’s office.

Finalists Selected to Fill Judgeship in Eighteenth Judicial District

Last week, the Eighteenth Judicial District Nominating Commission nominated three candidates for a district court judgeship created by the retirement of the Honorable Nancy Hopf, effective February 1, 2011.

Nominees for the bench are Rebecca Moss of Castle Pines, Francis Stephen Collins of Parker, and Rebecca Gleason of Centennial. All were selected by the commission on December 14, 2010.

Under the Colorado Constitution, Governor Ritter has until December 30, 2010 to appoint one of the nominees as district court judge for the Eighteenth Judicial District, serving Arapahoe, Douglas, Elbert, and Lincoln counties.

Comments regarding any of the nominees can be emailed to the Governor’s office.

Tenth Circuit: Opinions, 12/24/10

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

Tenth Circuit: Opinions, 12/23/10

The Tenth Circuit on Thursday issued three published opinions and eight unpublished opinions.


In Contreras-Bocanegra v. Holder, Jr., the Court denied Petitioner’s petition to review the Board of Immigration Appeals’ (BIA) decision denying his motion to reopen removal proceedings. Petitioner’s motion was not filed until months after his deportation from the United States. “8 C.F.R. § 1003.2(d) precludes consideration of a removed alien’s motion to reopen when filed within the statutory time limit of ninety days. . . . [T]he post-departure bar prohibits the BIA and [immigration judges] from hearing motions to reopen or reconsider made by aliens who have since been removed from the country.”

In United States v. Regan, the Court affirmed the district court’s sentence. Petitioner was convicted of receiving visual depictions of minors engaged in sexually explicit conduct. Petitioner requested a lower sentence of 60 months, but the district court imposed a sentence of 97 months. Petitioner claimed that the district court abused its discretion by imposing a substantially unreasonable sentence. Petitioner argued that the Sentencing Guidelines are “entitled to less deference because they are not the result of empirical study by the Sentencing Commission.” While the Court finds the Petitioner’s argument compelling, “he did not make the argument to the district court judge in either his sentencing memorandum or at the sentencing hearing.”

In Garman v. Campbell County School Dist., the Court affirmed the district court’s decision to dismiss the case. Petitioner brought a diversity action against a governmental entity, asserting a state law claim for negligence and negligent supervision. The Court found that the district court appropriately dismissed the case; “[A] plaintiff in a federal diversity action is not entitled to preferential treatment. [Petitioner] cannot, by choosing the federal forum, circumvent Wyoming law.” State law requires “the filing of a notice of claim with the appropriate governmental entity, signed by the person asserting the claim, within a specified time period,” and specifically pleading compliance with these requirements, something the Petitioner did not do.


United States v. Davis

United States v. Gentry

Herrod v. Metal Powder Products

Valdez v. Jones

Thompson v. Parker

Trujillo v. Hartley

Doe. v. Oklahoma City University

Galindo v. Holder, Jr.

Tenth Circuit: Opinions, 12/22/10

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


United States v. Reed

Markovich v. Correct Care Solutions

Johnson v. Roberts

United States v. Gallegos-Soto

Coleman v. Daniels

Dean v. Holder, Jr.

Access to Justice Committee Opening Self Help Resource Center in Seventeenth Judicial District

The Access to Justice Committee serving Adams and Broomfield counties has partnered with the Seventeenth Judicial District to open a Self Help Resource Center in the Adams County Justice Center.  The center will launch January 5, 2011.

On Monday mornings and Wednesday afternoons, court staff and volunteer attorneys will be available to answer questions about court processes in domestic relations and family cases.  While Center staff members are prohibited from providing legal advice, they will help visitors with forms, information about local procedures, internet resources, and other resource materials.

Our ultimate goal is to develop and define the self help center to be a user-friendly resource,” said Chief Judge C. Vincent Phelps. “We want to ensure that those in need of access to justice have the necessary resources and information available to them.

For further information about the Self Help Resource Center, contact District Administrator Melinda Taylor at (303) 654-3205.

William Martinez Confirmed by Senate as Colorado District Court Judge

Ysterday, the U.S. Senate confirmed William Martinez today as a District Court judge for the District of Colorado. The confirmation comes nearly two years after being recommended for the bench by Senators Udall and Bennet. President Obama nominated him in February.

Martinez was approved by a vote of 58-37.

Judge R. Brooke Jackson has been nominated to fill the other remaining vacancy on the court. He presently serves as Chief Judge for the First Judicial District, which serves Jefferson and Gilpin counties.