July 20, 2018

Archives for May 27, 2011

Paul Karlsgodt: Will AT&T Mobility v. Concepcion Really Kill the Consumer Class Action?

Daniel Fisher, who writes the Full Disclosure blog at Forbes.com, posted an article last Friday titled Has Scalia Killed the Class Action? Fisher’s article one of the best I’ve seen in discussing the potential practical impact that the Supreme Court’s recent class arbitration waiver decision in AT&T Mobility v. Concepcion may have on future consumer class action litigation.  I highly recommend it.

Although much remains to be seen about Concepcion‘s long-term impact, from a practitioner’s point of view, two things are clear to me.

First, the consumer class action is far from dead.  As Fisher’s article points out, there are many cases that won’t implicate arbitration clauses in consumer contracts at all, such as those involving retail products.  Moreover, even setting aside the prospect of executive branch or Congressional action in effectively overruling Concepcion, there are a variety of legal arguments that are sure to be raised for invalidating or avoiding enforcement of class arbitration waivers in the lower courts, notwithstanding the Supreme Court’s decision.  There are countless theories, many of which have yet to be dreamed up by enterprising plaintiffs’ lawyers, for why a consumer class action in a particular case should be allowed to go forward in court notwithstanding an arbitration provision.

Second, the fact that future legislative or executive action or lower court judicial gloss may water down or limit Concepcion‘s ultimate impact should not keep companies from taking advantage of what is now, at minimum, an enhanced tool for protection against the significant cost of defending against class action litigation.  In the short term, any in-house or outside counsel charged with advising corporate clients should be considering ways to incorporate class arbitration waivers or similar provisions into the client’s form contracts and terms of use.  While it may not be failsafe protection from class actions, a well-drafted, reasonably limited class arbitration waiver, has an exponentially greater chance of being enforced than it did before the Concepcion decision was announced.

Ed. Note: And don’t miss this great comment and follow-up to the post.

Paul Karlsgodt is a partner at Baker Hostetler who focuses his practice on class action defense and other complex commercial litigation. He is editor and primary contributor to www.ClassActionBlawg.com, where this post originally appeared on May 25, 2011.

Governor Hickenlooper Signs Three More Bills into Law

On Thursday, three more bills reached Governor John Hickenlooper’s desk and were signed into law. The bills were the twenty-third group to emerge from the 2011 General Assembly.

  • SB 11-047
    • Sponsored by Sen. Heath and Reps. Gerou and Riesberg. Concerning Funding to Support Innovative Industries, and Create the Colorado Bioscience and Clean Technology Innovation Reinvestment Act.
  • HB 11-1115
    • Sponsored by Reps. Priola and Soper and Sen. Tochtrop. Payment of Retainage in Construction Contracts Involving Public Entities.
  • HB 11-1288
    • Sponsored by Reps. Liston and Pabon and Sen. Morse. Unemployment Insurance Solvency Reform, and Enacting Measures to Enhance the Solvency of Unemployment Compensation Fund.

For a complete list of Governor Hickenlooper’s 2011 legislation decisions click here.

Judicial Department Employee Policies Revised by the Colorado Supreme Court

The Colorado Supreme Court has issued a new Chief Justice Directive, which was adopted and effective as of May 11, 2011.

The revised CJD 08-06 applies to all employees of the Colorado Judicial Department, including all classified and contract employees, volunteers, interns, and in some instances shall apply to Judges as specified in individual policies herein. The Directive was adopted to assure compliance with Colorado Judicial Department rules, policies, and procedures.

The Colorado Supreme Court has approved the “Colorado Judicial Department Employee Policies,” which are the basis for the Directive and are attached therein.

CJD 08-06 – “Concerning Colorado Judicial Department Employee Policies”

Electronic Filing Standards Revised by the Colorado Supreme Court

The Colorado Supreme Court has issued a new Chief Justice Directive, which was adopted and effective as of May 17, 2011.

The purposes of the new CJD 11-01 are:

  1. to make uniform the means by which documents are electronically transmitted and accepted through the State’s E-Filing system;
  2. to eliminate potentially conflicting local rules that attempt to define those standards; and
  3. to increase access to the courts by reducing the number of reasons for rejecting an e-filing.

The CJD applies to all documents that are transmitted and accepted electronically using the E-Filing system.

In conjunction with CJD 11-01, the Chief Justice repealed another Directive. CJD 05-02 is no longer in effect; the new Directive better addresses the issues and requirements of E-Filing.

CJD 11-01 – “Concerning Statewide Electronic Filing Standards”

CJD 05-02 – “Concerning Electronic Document Format”

Bankruptcy Court: Colorado Homestead Exemption Should Be Liberally Construed

The U.S. Bankruptcy Court for the District of Colorado issued its opinion in In re Elliot on Thursday, May 12, 2011.

11 U.S.C. § 522 (b)(1) and (3), C.R.S. § 38-41-207.

Trustee objected to Debtor’s claim of “homestead proceeds” exemption for surplus funds from public trustee’s foreclosure sale of Debtor’s former residence which were held in a segregated bank account. Though Colorado’s exemption statute for homestead proceeds explicitly refers only to proceeds from sale by owner or sale following levy and execution, the Court predicted that the Colorado Supreme Court would liberally construe the statute to apply to proceeds from public trustee sale. Debtor’s exemption was upheld.

Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.

Tenth Circuit: Unpublished Opinions, 5/26/11

On Thursday, May 26, 2011, the Tenth Circuit Court of Appeals issued no published opinions and nine unpublished opinions.

Unpublished

Killingsworth v. Tapia

Thornbrugh v. United States

Alexander v. Zavaras

United States v. Thompson

St. James v. Zavaras

Pinson v. Pacheco

Richwine v. Romero

United States v. Dyck-Quiring

Allen v. Turley

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Announcement Sheet, 5/26/11

On Thursday, the Colorado Court of Appeals issued seven published opinions and thirty-eight unpublished opinions.

Published

People v. Sandoval-Candelaria

People v. Garcia

Weston v. T&T, LLC

People In the Interest of A.H., a Child, and Concerning G.H.

Timm v. Prudential Ins. Co. of America

Strunk v. Goldberg

One Creative Place, LLC v. Jet Center Partners, LLC

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Eighth Judicial District’s Adult Drug Court Celebrating National Drug Court Month: A Proven Budget Solution

The Denver Drug Court isn’t the only problem-solving court in Colorado celebrating National Drug Court Month. This month, the Eighth Judicial District Adult Drug Court is also recognizing the 162 people who have graduated from the program since it began a decade ago.

District Court Judge Daniel J. Kaup presides over the court in Larimer County, where programs identify substance abusers in the criminal justice system. Participants are held accountable through an integrated supervision program designed to address substance abuse issues through treatment and rehabilitation. Judges, prosecutors, defense attorneys, probation officers, treatment providers, and court staff work collaboratively to enforce compliance with court orders through a system of graduated rewards and sanctions. Accordingly, frequent court appearances before a sitting judge is an important factor for success in the program.

The program currently has sixty-three participants and has successfully graduated 162 people in the last decade. Locally, 93% of drug court graduates are not charged with a new felony or misdemeanor within a year after their graduation; 80% have not been charged with a new felony or misdemeanor within three years of graduating.

In addition to the Adult Drug Court, Larimer County began a DUI Court in July 2010, and is also home to a Juvenile Drug Court Program, a Family Treatment Court, and Colorado State University administers a Campus Court.

In honor of National Drug Court Month, the national focus is on the monumental societal and economic benefits of Drug Courts. At a time when local, state, and federal budgets are stretched, Drug Courts are highlighting their programs as effective tools for reducing substance abuse and crime and improving safety, and as more cost effective than straight incarceration. More information on the success of Drug Courts and National Drug Court Month can be found at the National Association of Drug Court Professionals website.

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Denver County Court Issues Standing Order Regarding Procedures for Pattern Interrogatories and Answers

This month, Presiding Judge John M. Marcucci of the Denver County Court issued a Standing Order for Interrogatories pursuant to Colorado Rules of County Court Civil Procedure Rule 369. The order changes motion and filing requirements for Judgment Creditors and Debtors. Judgement Creditors may propound Pattern Interrogatories without further motion or order from the court and Judgement Debtors need only forward their Answers to Interrogatories to the Creditor and not file them with the court.

IT IS HEREBY ORDERED that when a party has obtained a judgment against the opposing party in a civil action in the Denver County Court and thereby becomes a Judgment Creditor; that the Judgment Creditor may propound Pattern Interrogatories to the Judgment Debtor without further motion or order from the Court, pursuant to Rule 369, C.R.C.P. and this Order;

FURTHER, the Judgment Debtor’s Answers to Interrogatories shall be forwarded to the Judgment Creditor only and said Answers shall not be filed with the Court by the Judgment Debtor.  Interrogatories shall include in the instructions that:

“JUDGMENT DEBTORS ARE TO FILE THEIR ANSWERS WITH ONLY THE JUDGMENT CREDITOR AND NOT THE COURT.”

FUTHER, Court Clerks issuing specifically Court approved Non-Pattern Interrogatories pursuant to Rule 369, C.R.C.P., shall deliver a copy hereof to the Judgment Creditor for service with the Interrogatories;

FURTHER, all Motions for Contempt Citations for failure to properly answer said Interrogatories shall be in compliance with Rule 407(c) C.R.C.P.  A Motion and Order for Contempt Citation, along with the Show Cause Citation itself are to be filed with the Court for issuance.  A copy of the Answers to Interrogatories, if any, and a proper return of service for the Interrogatories shall be included with said Motion.

FINALLY, the ORDER OF THE DENVER COUNTY COURT PRESIDING JUDGE, dated March 21, 2008, is hereby repealed.

A copy of the official signed order may be viewed here.