July 22, 2019

Archives for September 2, 2011

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: Property Nuisance Claim Not Arbitrary and Challenge Failed to State a Claim Against Final Policymakers

The Tenth Circuit Court of Appeals issued its opinion in Kansas Penn Gaming, LLC v. Collins on Thursday, September 1, 2011.

The Tenth Circuit affirmed the district court’s dismissal of the complaint. Petitioner alleges that “after it and Cherokee County became involved in litigation concerning a casino development agreement, the County health department targeted [Petitioner] for a regulatory enforcement action”; the County sent Petitioner a notice stating that the unkempt condition of its property violated state and local nuisance laws and regulations, and warned that failure to clean up the property would lead to an enforcement action. No enforcement action was ever brought, but Petitioner sued the County and some of its officials under 42 U.S.C. § 1983, alleging that the notice of nuisance violated its right to equal protection by arbitrarily and maliciously singling it out for selective enforcement.

However, the Court agreed with the district court that Petitioner failed to state a claim for relief under the standard set forth by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Petitioner failed to allege facts suggesting that other property owners were similarly situated in all material respects; “it is insufficient to simply allege that other, unidentified properties have ‘comparable’ or ‘similar’ conditions—the claim must be supported by specific facts plausibly suggesting the conditions on the properties and the properties themselves are similar in all material respects.” Also, Petitioner failed to state a claim against the final policymaking commissioners, which is necessary to succeed in its class-of-one equal protection claim.

Tenth Circuit: Opinion Amended to Add Citation (Padilla Is New Rule of Constitutional Law; No Retroactive Application on Collateral Review)

The Tenth Circuit Court of Appeals amended its opinion in United States v. Hong on Thursday, September 1, 2011.

The Tenth Circuit amended its original opinion issued on August 30, 2011. The amendment is limited to adding a citation to Chaidez v. United States, ___ F.3d ___, 2011 WL 3705173 (7th Cir. Aug. 23, 2011).

Tenth Circuit: Unpublished Opinions, 9/1/11

On Thursday, September 1, 2011, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.


Penner, Sr. v. City of Topeka

United States v. Real Property Known As 7501 N.W. 2010th Street, Oklahoma City, Oklahoma

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

Dave Waller: The XXX Domain Start Up – Waking Up To Sunrise B

Editor’s Note: While this article focuses on hospitality companies, it discusses implications of the .XXX domain of which all businesses should be aware.

It’s almost time. No, we aren’t talking Labor Day. Sunrise B is conveniently scheduled to begin September 7, just after the holiday. And you thought you were going to relax this weekend.

For those who haven’t reviewed our previous posts, Sunrise B is the period during which hospitality companies can block their qualifying trademarks from registration by others as domain names in .XXX. As of the beginning of August, ICM had already allocated about 1500 domains under .XXX. Hospitality companies are strongly advised to take advantage of the Sunrise B process to avoid potentially embarrassing associations with the type of adult content intended for .XXX.

Over the last month, the ICM Registry has made available some educational content regarding the .XXX launch, including a visual overview of the process and a 3 minute video. We vetted them and can assure you they are safe for work.

The ICM Registry has also posted its Sunrise B policies. Thankfully, the final policy extended the Sunrise B period to October 28th – originally, Sunrise B was only scheduled to run for 30 days. The policies also answered some technical questions, such as:

  • If a trademark contains spaces between words, you can complete a Registration Request by substituting a hyphen for the space or by eliminating the space in its entirety. Each variation of a trademark must be submitted and paid for as a separate Registration Request. Registration of domain names that are comprised of typographical errors of your trademark or that include generic of descriptive words in addition to your trademark may be registered once .XXX domain names become available to the general public on December 6, 2011.
  • The publicly available WHOIS information for all reserved names will state the Registry and not any particular Sunrise B applicant.
  • In the event that there is more than one qualified applicant under Sunrise B, the domain name will be reserved in exactly the same way as if there were only a single applicant and there will be no refund or apportionment of fees among such applicants.

Trademark owners must file their Reservation Requests through one of the accredited registrars listed on the ICM Registry site. The fee for filing a Reservation Request is set by the selected registrar, but is currently expected to be approximately between $200 and $350 per domain name.

David Waller is the senior hospitality lawyer in Baker Hostetler’s Denver office. Working closely with nationally-known hospitality companies and independent developers, Dave has spent considerable time focusing on the business and legal issues related to shared ownership products, condominium hotels, and resort, hotel and condominium development and management. He contributes to the firm’s Hospitality Lawg, where this post originally appeared on September 2, 2011.

Ben Aisenberg: Reasonableness of a Contingent Fee – A Prospective or Retrospective Approach

In assessing the reasonableness of a contingent fee on completion of the contingency, must the reasonableness of the fee be judged as of the time the contingency fee agreement was entered into, pursuant to ABA Formal Opinion 94-389, or does the attorney have the obligation to take a retrospective approach to determine whether the fee is reasonable?  See ABA Formal Opinion 94-389 and Contingent Fee Agreements, Bennett S. Aisenberg, Colorado Lawyer, July, 1996 at pg. 65.

In what would appear to be the most definitive appellate declaration to date as to whether the reasonableness of a contingent fee should be determined prospectively or retrospectively, the Colorado Court of Appeals in Berra v. Springer & Steinberg, 251 P.3d 567 (Colo. App. 2010) held that it is incumbent for a reviewing Court to scrutinize a contingent fee agreement to determine its enforceability.  The Appellate Court found that the reasonableness of a contingent fee agreement is subject to a retrospective approach, i.e. it must be assessed not only in light of the circumstances which existed at the time the agreement was entered into, but also retrospectively as to whether the services were reasonably worth the percentage amount set forth in the agreement, in effect, a quantum meruit approach using the factors set out in Colo. RPC 1.5(a).  The approach followed by the Court in affirming the trial court was to multiply the number of hours plaintiff’s counsel reasonably spent, times his hourly rate, and then multiply that figure by, in this case, 2.5, pursuant to Colo. RPC 1.5(a)(8), the fact that it was a contingency and the potential risk this involved.  The multiplier approach is consistent with Brody v. Hellman, 167 P.3d 192 (Colo. App. 2007) (multiplier of 2.3 times lodestar amount permitted in a common fund case).

It is noteworthy that the trial court and the Appellate Court only considered counsel’s contemporaneously documented hours and rejected some 50 to 100 additional hours to which plaintiff’s counsel testified, but which were not documented.  The final result was the contingent fee was cut by more than half.  The Supreme Court denied certiorari.  If there is a message to be learned from Berra v. Springer & Steinberg, it is to keep contemporaneous timesheets.

Berra was essentially a collection case which went on for six years.  In 2006, when the judgment debtor discovered he had terminal cancer, he decided to sell all his assets and pay his debts.  The Court of Appeals further held that it was this fortuitous circumstance that brought about the payment of the judgment to the exclusion of Springer & Steinberg’s efforts to collect it.  Query, will the holding in Berra open a floodgate of litigation whereby a contingent fee pursuant to a settlement is contested, based on the fact that other circumstances played into the defendant’s decision to settle the case?  Does this put the contingent fee attorney in a situation similar to a real estate broker, where the broker must be the “procuring cause” of the transaction?

Bennett S. Aisenberg practices law in Denver. He has served as a member of the Colorado Bar Association Ethics Committee since 1986. In 2003, he received the Denver Bar Association Award of Merit. Ben is a past president of the Colorado Bar Association, the Denver Bar Association, and the Colorado Trial Lawyers Association. He blogs at coloradoethics, where this post originally appeared on August 22, 2011.

Bilingual? Want to Be a Mediator? Scholarships Are Available

The Office of Dispute Resolution is offering a limited number of scholarships to Judy Mares-Dixon’s Mediation Training in Westminster, which is being held October 3 – 7, 2011.

These scholarships are for bilingual individuals living anywhere in the state of Colorado. Preference will be given to individuals who have some knowledge and familiarity with family law, the court system, and an interest in working as court mediators. To apply for a scholarship, please send a current resume or CV, along with a one-paragraph statement indicating your interest in mediation services, to  holly.panetta@judicial.state.co.us.  For more information please email or call Holly at (303) 837-3609.

Please see the attached brochure for an overview of the training.

Scholarship Brochure 2011

Colorado Court of Appeals: Announcement Sheet, 9/1/11

On Thursday, the Colorado Court of Appeals issued four published opinions and twenty-one unpublished opinions.


Arnold v. Anton Cooperative Ass’n

People v. Boles

Draper v. DeFrenchi-Gordineer

Norman v. Industrial Claim Appeals Office of the State of Colorado

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.