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Legal Trends and Best Practices in Class Arbitration

This article summarizes the U.S. Supreme Court decisions in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. and AT&T Mobility LLC v. Concepción, as well as related earlier decisions. The discussion focuses on the effect of those decisions on arbitration jurisprudence. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 47) and will publish in two CBA-CLE Legal Connection blog posts. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Editor’s Note: This segment of the article highlights the Stolt-Nielsen decision. Dirk W. de Roos, co-author of this article, presented a CLE program on this subject and addressed issues arising out of class action arbitrations and the enforceability of contractual “class action arbitration” waivers. The presentation discussed the fundamentals of class action waivers, judicial enforcement, the status of case law and Colorado law on the issue, and the future of class arbitrations. The program is available as a homestudy in two formats: video on-demand and mp3 download.

By Dirk W. de Roos, Russell O. Stewart

In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,1 the U.S. Supreme Court held that no party is obligated to submit to class arbitration under the Federal Arbitration Act (FAA) when an arbitration agreement is silent about the parties’ intent to allow for class arbitration. In the later case of AT&T Mobility LLC v. Concepción,2 the Court held that the FAA preempted California law mandating class actions as a viable arbitration remedy. This article discusses both opinions and their impact on arbitration in the United States.

Stolt-Nielsen—Facts and Background

Respondent AnimalFeeds International Corp. (AnimalFeeds) supplied ingredients to animal-feed production businesses worldwide.3 AnimalFeeds shipped its ingredients in petitioners’ seagoing vessels.4 The parties conducted business using a standardized contract known as a “charter party,” which governs trade needs between parties in the shipping industry.5 The charter party included an arbitration provision requiring any disputes to be settled in New York using the rules of the FAA.6 Under the agreement, the parties could appeal an arbitrator’s decision in federal court.7

In 2003, an investigation by the U.S. Department of Justice revealed that the petitioners were engaging in a price-fixing conspiracy.8 AnimalFeeds brought suit, alleging antitrust claims against petitioners in the Eastern District of Pennsylvania.9 Other charterers also brought suit and the Judicial Panel on Multidistrict Litigation consolidated the pending actions in the District of Connecticut. The parties then determined that they were obligated to arbitrate the dispute.

In 2005, AnimalFeeds brought arbitration in New York City and sought to represent a class of charterers affected by the price-fixing conspiracy. The parties agreed that a panel of arbitrators would decide whether the charter party allowed class arbitration. The parties also agreed that the charter party remained silent as to the parties’ intent to allow class arbitration. The arbitration panel determined that the agreement allowed for class arbitration, despite its silence on the issue, because no evidence showed intent to preclude class arbitration.

The arbitrators then stayed the arbitration proceeding to allow for judicial review of the decision. The U.S. District Court for the Southern District of New York vacated the decision. The court of appeals reversed the lower court, finding no custom or usage against class arbitration in maritime law.10 The U.S. Supreme Court found in favor of petitioners, vacated the panel’s decision, and remanded the case.11

Legal Conclusions of the Supreme Court in Stolt-Nielsen

The U.S. Supreme Court concluded that the arbitration panel exceeded its authority and that parties must consent to matters of arbitration. These conclusions are discussed below.

The Arbitration Panel Exceeded Its Authority

For a court to vacate an arbitration decision, a standard higher than a mere showing of serious error must be met.12 An arbitrator’s decision may be unenforceable only when he or she “strays from interpretation and application of the agreement,” effectively creating his or her own version of justice.13 A court may vacate the arbitrator’s decision under § 10(a)(4) of the FAA, which limits the arbitrator’s role to interpreting or enforcing a contract, rather than making public policy.14

The arbitration panel based its decision on the fact that the arbitration agreement remained silent and that, as a matter of public policy, an agreement should be construed to permit class arbitration.15 However, the Court noted that the panel failed to look to the FAA, maritime law, or New York law to determine what rule governs when a contract remains silent.16 Rather, the panel analyzed Green Tree Financial Corp. v. Bazzle, a case where the U.S. Supreme Court held that arbitrators must decide when a contract remains silent with regard to class arbitration.17 The panel then relied on cases interpreting Bazzle that broadly construed silent arbitration clauses to allow for class arbitration.

The Court in Stolt-Nielsen found that the panel acted as a common law court, developing what it believed to be the best rule, rather than identifying the intent of the parties and applying the governing rule of law from a relevant jurisdiction.18 Finding that the panel had exceeded its powers under § 10(b) of the FAA, the Court decided the question of class arbitration instead.19

Bazzle Does Not Determine Whether Class Arbitration is Permitted

Bazzle concerned a dispute between a commercial lender and its customers over contracts with arbitration clauses that did not expressly mention class arbitration. In a plurality decision, the U.S. Supreme Court held that an arbitrator, rather than a court, has the power to determine the arbitration issue when a contract remains silent with regard to class arbitration.

The parties in Stolt-Nielsen misconstrued Bazzle by interpreting it as allowing an arbitrator to determine whether a contract permitted class arbitration.20 Instead, the decision held only that an arbitrator may decide if a contract remains silent regarding class arbitration.21 The Court noted that Bazzle did not clarify the first issue, because only a plurality decided that an arbitrator should determine when a contract allows for class arbitration.22 The Court declined to decide the question in Stolt-Nielsen.23 The Court also clarified that Bazzle did not establish a standard for determining whether an arbitration agreement allows for class arbitration.24

Parties Must Consent to Matters of Arbitration

The FAA requires that parties consent to all provisions of an arbitration agreement.25 Section 4 of the FAA allows a party to “petition a United States district court for an order directing that ‘arbitration proceed in the manner provided for in such agreement.’”26 Therefore, the FAA guarantees that arbitration agreements between private parties are implemented under the terms on which the parties intended to agree.27

The Court concluded that parties cannot consent to a contractual agreement without the intent to do so; because both parties concur that the agreement remained silent, the parties did not consent to class arbitration.28 Although an implicit agreement to class arbitration may exist in other cases, the parties here agreed that the contract remained silent.29

According to the Court, class arbitration is significantly different from bilateral arbitration.30 Rather than resolving a dispute between two parties, class arbitration has the potential to include thousands of parties. The presumption of privacy disappears, and the arbitration panel’s award binds present and absent parties.31 In light of the stark differences between class and bilateral arbitration, the Court held that consent to class arbitration is necessary, and the agreement’s silence on the matter could not be construed as consent.32

Judicial Reaction to Stolt-Nielsen

Stolt-Nielsen has influenced multiple cases since it was decided; however, no court has yet analyzed its precedential value. In May 2010, the Supreme Court granted certiorari in American Express Co. v. Italian Colors Restaurant.33 The Second Circuit had held that an arbitration agreement was unenforceable on public policy grounds because it waived class arbitration.34 The Supreme Court remanded the case, directing the Second Circuit to reconsider its decision in light of Stolt-Nielsen.35

In McArdle v. AT&T Mobility LLC, the Northern District of California found Stolt-Nielsen to be a narrow decision. The court held that the FAA does not preempt the California state law that makes arbitration agreements that waive class arbitration unenforceable.36 One court recently observed that Stolt-Nielsen fails to clarify many outstanding questions regarding arbitration, such as which standard to apply when vacating an arbitrator’s award.37

Stolt-Nielsen’s Impact on Arbitration Law

Legal scholars have noted the impact of Stolt-Nielsen on arbitration law. First, the decision raised the question of whether the FAA preempts state laws addressing class arbitration and unconscionability. Many state and federal courts have held class action waivers in arbitration agreements unenforceable as against public policy.38 Many state courts have found barring class arbitration unconscionable because in many circumstances, the parties entering into an agreement hold unequal bargaining power.39 Because the damages for most parties would be small, little incentive exists for an aggrieved party to pursue his or her rights if an agreement bars class arbitration.40

The Court in Stolt-Nielsen did not address whether the FAA preempts state courts from allowing class arbitration under state law, even when an agreement is silent.41 However, as discussed below, the Supreme Court recently decided AT&T v. Concepción, concluding that the FAA preempts states from conditioning the validity of arbitration provisions on the inclusion of specific procedures, including class arbitration.

The Stolt-Nielsen decision implies that the U.S. Supreme Court may prevent the arbitration of public policy issues. The Court noted that an arbitrator must interpret a contract using law from applicable jurisdictions, not create public policy.42 That said, questions of public policy present themselves in commercial arbitration settings when parties argue that the enforceability of a contract is based on public policy.43 By defining the arbitrator’s role as solely applying contract terms, but not analyzing public policy, the Court may have undermined an arbitrator’s power to arbitrate claims and defenses based on public policy grounds.44

The decision may limit the frequency of class arbitration. The Court interpreted the FAA restrictively, limiting arbitration to the explicit scope of the parties’ agreement.45 Previously, many lower courts interpreted the FAA broadly to permit class arbitration, even when an agreement did not specify parties’ intent.46 The Court has made it more difficult for parties to demonstrate intent under the FAA absent an express provision.47 Interpreting the FAA restrictively, the Court narrowed circumstances in which parties may be allowed to use class arbitration.48

Finally, the Court’s application of § 10(b)(4) of the FAA may lead to an increased use of the provision. In vacating the arbitrators’ decision, the Court used the “exceeding powers” standard of § 10(b)(4), rather than the “manifest disregard” standard often used by lower courts.49 Confusion about the manifest disregard standard has existed for some time, but the Court did not address the issue.50 Therefore, other courts likely will follow suit in using the alternative standard of review from § 10(b)(4) to determine when to vacate an award.51

Other Changes in the Arbitration Setting

In June 2010, the U.S. Supreme Court decided Rent-A-Center, West, Inc. v. Jackson,52 where it determined the arbitrability of arbitration clauses in contracts. The Court held that under the FAA, an arbitrator must determine an agreement’s enforceability if an arbitration agreement includes a clause delegating authority to the arbitrator to determine whether the agreement is fair.53 However, a district court may consider challenges to the enforceability of the individual delegating clause.54

Notes

1. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758, 1776 (2010).

2. AT&T Mobility LLC v. Concepción, __ S.Ct. __ 2011 WL 1561956 (April 27, 2011) (slip op.).

3. Stolt-Nielsen, supra note 1 at 1764.

4. Id.

5. Id. at 1764-65, n.1.

6. Id. at 1765.

7. Id.

8. Id.

9. Id.

10. Id. at 1766.

11. Id. at 1777.

12. See id. at 1767, citing E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57 (2000).

13. Id., quoting Major League Baseball Players Assn. v. Garvey, 532 U.S. 504 (2001) (per curiam).

14. Id.

15. Id.

16. Id.

17. Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003).

18. Stolt-Nielsen, supra note 1 at 1769-70.

19. Id. at 1770.

20. Id. at 1772.

21. Id.

22. Id.

23. Id.

24. Id.

25. Id. at 1773.

26. Id., quoting 9 U.S.C. § 4.

27. Id.

28. Id. at 1775.

29. Id.

30. Id. at 1776.

31. Id.

32. Id.

33. Am. Express Co. v. Italian Colors Restaurant, 130 S.Ct. 2401, 2401 (2010).

34. In re Am. Express Merchants’ Litigation, 554 F.3d 300 (2d Cir. 2009).

35. Am. Express, supra note 33 at 2401.

36. McArdle v. AT&T Mobility LLC, No. C 09-1117 CW, 2010 WL 1875812 at *1-2 (N.D.Cal., May 10, 2010).

37. See, e.g., Republic of Argentina v. BG Group PLC, No. 08-485 (RBW), 2010 WL 2264957 at *3 n.7 (D.D.C., June 7, 2010) (noting that the court declined to determine whether an award could be vacated due to “manifest disregard of the law” by an arbitrator).

38. Loree, “Stolt-Nielsen Delivers A New FAA Rule—And Then Federalizes the Law of Contracts,” 28 Alts. to High Cost Litig. 121 (2010).

39. See, e.g., Gentry v. Superior Court, 165 P.3d 556 (Cal. 2007) (holding arbitration clauses that preclude class certification unenforceable).

40. Wolson, “The Law of Unintended Consequences: Did the Stolt-Nielsen Decision Inadvertently Invalidate Millions of Arbitration Provisions?” 241 Legal Intelligencer (2010).

41. See Haines, “Arbitration Ruling Handed Down from the U.S. Supreme Court and California Law,” California Employee Advocate (May 17, 2010), available at www.californiaemployeeadvocate.com/tags/stolt
nielsen-v-animal-feeds-in.

42. Stolt-Nielsen, supra note 1 at 1767-70.

43. Loree, supra note 38.

44. See id.

45. See Stolt-Nielsen, supra note 1 at 1767-70.

46. See id. at 1769 (discussing a consensus among courts that class arbitration is beneficial).

47. See id.

48. See Doyle and Ruben, “Stolt-Nielsen S.A. et al. v. AnimalFeeds International Corp.,” ABA Section of Lab. & Emp. Law (2010), available at www.abanet.org/labor/lel-hottopics/10/stolt-nielsen.html.

49. See Stolt-Nielsen, supra note 1 at 1768-69.

50. See id. at 1768 n.3.

51. See Loree, supra note 38.

52. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. __ (2010).

53. Id.

54. Id.

Dirk W. de Roos is a partner with Faegre & Benson LLP in Denver. He focuses his practice on business litigation and insurance law—dderoos@faegre.com. Russell O. Stewart is a partner with Faegre & Benson LLP in Denver. He focuses his practice on litigation—rstewart@faegre.com.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

Inside the Infill: The Ralph L. Carr Colorado Judicial Center, Part 2

Editor’s Note: This is the second of three posts highlighting the new judicial center.

Just a block away from History Colorado Center is the State of Colorado’s new judicial complex, officially known as the Ralph L. Carr Colorado Judicial Center. Ryan just posted Part 1 of this “Inside the Infill” feature, so here’s a second dose of infill goodness for you to enjoy. Rumor has it there may be a Part 3!

The Ralph Carr Judicial Center is already making an impact on the Civic Center skyline, and I like it. The architecture is classic Neoclassical, with marble columns and all. The state courts wanted a building that communicated a stately, civic presence on par with (and visually oriented towards) the State Capitol, and they are getting it. But despite the Ralph Carr’s architectural gravitas, I find its contemporary touches and generous fenestration (for this style) welcome features that give the building an inspiring, approachable quality. And it’s not even finished yet. Kudos to Denver’s Fentress Architects for designing a building that is clearly worthy to take its place at Denver’s hallowed ground, Civic Center. Our thanks to Trammell Crow and Mortenson Construction for the tour.

I like the exterior materials too. A light gray granite wraps the 4-story courthouse wing as well as the lower levels of the 12-story office tower, and pre-cast panels complete the upper floors of the tower. They work well together to give the complex a unified visual appearance, while exposing pedestrians to the high-quality material like granite we expect in important government buildings. Here’s a view (an inner courtyard along Broadway) of the vertical transition from granite to pre-cast panels. The darker-gray window glazing complements both materials. This wasn’t intentional, but I now notice the nice reflection in the window of perhaps Denver’s best light gray granite-clad modern building, Republic Plaza:

The office tower incorporates into both its north and south facades the columnar form, with vertical glass “columns” in between adding a modern gesture.

Before we we went up to the project’s upper floors, we saw a quick preview of Mortenson’s digital planroom technology. More on that in a future post. Then we took a ride in the construction elevator “cage” that climbs up the outside of the building:

From the 12th floor, here’s a nice view of the two courthouse domes: the smaller one in the foreground will be centered above the Colorado Supreme Court courtroom, and the larger one will cover the grand atrium. On the right, a stack of windows are being lifted up by a crane while traffic below on Broadway goes about its business:

From the Supreme Court’s fourth-floor atrium entrance, here’s the symbolic view looking back at the statehouse. Once all the scaffolding and temporary window supports are removed, this will appear as one big window offering one fantastic view of our state’s beautiful gold-domed Capitol.

Finally, while we now have real-life views of this project to observe, I recently ran across some additional renderings of the project I hadn’t seen before. They can be viewed here.

PS. If you don’t know who Ralph Carr is and why he is worthy of having a justice center named after him, please go here.

Ken Schroeppel is the founder and administrator of the DenverInfill website and companion site, DenverUrbanism. Ken is a planner and project manager at Matrix Design Group, a Denver-based planning and engineering consulting firm, where he specializes in redevelopment and urban renewal planning. He contributes to the DenverInfill Blog, where this post originally appeared on September 27, 2011.

Ross Guberman: Legal Writing Lessons from The New Yorker

Editor’s Note: Jeffrey Toobin will be the keynote speaker at the 2011 Judicial Excellence for Colorado Dinner on November 1, 2011. The annual dinner event is hosted by the Colorado Judicial Institute, which will also be presenting the year’s Judicial Excellence Awards to several local judges and magistrates. Click here for more information.

Looking for some writing inspiration?

Start with The New Yorker, the nation’s best-edited publication. Add Jeffrey Toobin, one of the most talented legal journalists. Now mix in the unsolved murder of a Seattle federal prosecutor, a story Toobin told in a recent issue.

Here are ten great techniques at work in Toobin’s tale:

1. Start sentences with light openers.

Wales, an Assistant United States Attorney in Seattle, had planned to have dinner and spend the evening with his girlfriend, Marlis DeJongh, a court reporter who lived downtown. But that afternoon Wales called DeJongh and said that he had projects he needed to work on at home.

The notion that McKay was fired for failing to prosecute Democrats is plausible. But the passion that McKay brought to the Wales case may have played a part, too.

2. Link the first sentence of a paragraph to the last sentence of the one before.

Neither Wales’s romantic life nor the fender bender yielded promising leads in the murder investigation.

Wales’s work on gun control also failed to produce suspects.

3. Begin a paragraph with a short sentence.

Progress came slowly. Anderson remained the only suspect; in 2004, the Seattle Times reported that the F.B.I. had searched Anderson’s home in Beaux Arts and removed twenty-seven boxes of possible evidence.

4. Follow a long, complex sentence with a short, punchy one.

By 2000, the investigation of the helicopter-conversion industry was winding down, with disappointing results for Wales and the U.S. Attorney’s Office. Only one case remained.

The firm, called Intrex Helicopters, which was based at Powell’s home, was renovating a single helicopter for civilian use. Still, the stakes were substantial.

5. Use a signpost to link your sentence to the previous one.

Several local entrepreneurs decided to retrofit the surplus military models for civilian use. Such conversions were legal, as long as they were conducted in accordance with safety rules established by the Federal Aviation Administration.

6. Convey chronology through transition phrases rather than dates and times.

  • In July, three months before his death, Wales had been involved in an altercation at a parking garage near his office.
  • About fifteen minutes later, someone shot him three or four times through the window from the back yard.
  • Two weeks after the murder, the Senate confirmed a new U.S. Attorney for western Washington, John McKay.
  • A month after [Wales] was killed, the group held a benefit in his honor, which was attended by more than five hundred people, including many prominent Democratic politicians in the state, and raised five hundred thousand dollars.
  • Meanwhile, Wales’s friends began to talk about creating a memorial.
  • Not long after the meeting, John Ashcroft visited Seattle to give a speech at a Coast Guard base, but he didn’t meet with McKay’s staff or mention the Wales case.

7. Use semicolons for parallel constructions.

[United States Attorneys] establish the priorities for each of the nation’s ninety-four judicial districts and announce significant indictments and arrests; many are well known in their communities. Assistant U.S. Attorneys are more like civil servants; they perform the day-to-day work on important investigations and their public speaking is typically limited to the courtroom.

8. Hyphenate phrasal adjectives for clarity and elegance.

  • cell-phone towers
  • gun-control initiative
  • death-penalty case
  • law-enforcement official
  • information-sharing system
  • high-school students
  • highest-ranking official
  • organized-crime unit
  • forty-year-old pilot

9. Set off explanatory phrases with dashes.

The proposal brought out the full might of the gun-control lobby, which spent four million dollars—primarily on television advertisements and direct-mail appeals—and voters rejected the measure, seventy-one to twenty-nine percent.

The F.B.I gave the investigation the code name SEPROM—short for “Seattle prosecution murder”—but the bureau set the reward for tips leading to a prosecution in the case at twenty-five thousand dollars, which was widely regarded in Seattle as an insultingly small amount, and did not offer local investigators assistance from Washington, D.C.

10. Use a colon to set off an explanation that could stand as a complete sentence.

The phrase was partly a joke, a bit of feigned grandiosity to justify a tendency toward excessive meticulousness: Wales did things slowly.

Original Article: Jeffrey Toobin, “An Unsolved Killing” (August 6, 2007)

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Metro Volunteer Lawyers at 45: The Thursday Night Bar – A Journey Through the Past

Editor’s Note: Pro Bono Week is October 24-28, 2011. In anticipation, CBA-CLE Legal Connection will run weekly articles this month to highlight local pro bono efforts and opportunities. At the end of the month, the Denver Bar Association has put together several days of events and parties for Pro Bono week, to recognize and celebrate the commitment to pro bono client services. Click here for more information.

By Howard Rosenberg, Jon Nicholls, and Jerry Conover

1966—it was the year that the Office of Economic Opportunity and its Office of Legal Services were in bloom. Enter the Denver Bar Association with its Thursday Night Bar. What was it, and why was it so called? No, it was not a “bar” open on Thursday nights—it was an experiment designed or if one prefers, “dreamed up” by prominent members of Denver’s legal community who believed that lawyers were willing and able to provide pro bono volunteer legal services to the low-income community. The idea also was that volunteer lawyers could at least make a small dent in serving the legal needs of the poor in Denver, while the OEO Office of Legal Services was pondering whether to fund a legal services program for Denver.

The program that was designed by its founders assigned volunteer lawyers to a neighborhood office of the Denver Housing Authority, set up through the assistance of Dick Peterson (at that time a Denver minister), where on Thursday nights at 5 p.m. clients with legal problems would come in on a first-come, first-served basis. The volunteer lawyers would interview each client, give advice when feasible (if the lawyer was knowledgeable enough to give the advice), and make notes regarding the client’s problems. Files would then be  transferred to the DBA office for the Friday morning review.

Jerry Conover, left, and Howard Rosenberg, center, were founding volunteers of the Thursday Night Bar. Jon Nicholls was also a TNB volunteer. Rosenberg and Nicholls each served as executive director of the Legal Aid Society of Metropolitan Denver. Photo by Jamie Cotten.

On Friday mornings, the Thursday night volunteers would meet with a panel of volunteer lawyers, a staff attorney from the Legal Aid Society of Metropolitan Denver, and a bar association coordinating lawyer.  In the first year of operation, a lawyer from the neighborhood law center, a representative of DU Law-Denver Legal Aid combined model effort funded by OEO for one year, also was present. The Thursday night cases would be presented by the lawyers who interviewed clients the night before, and the Friday morning panel would discuss how to resolve the cases. Referrals would be made to the Legal Aid Society, to the DU Neighborhood Law Office and law school clinic, and to volunteer lawyers. When the Friday morning panel completed its review of the cases, the DBA coordinator would begin calling lawyers to assign cases. The assignment to the volunteer lawyer would be noted. The client would receive either a phone call or a letter advising the client that the case was assigned to a particular volunteer attorney. He or she would then be directed to contact the attorney.

The Thursday Night Bar program prospered and grew under the auspices of the DBA, continuing to mature into the current iteration—Metro Volunteer Lawyers. For many years the name and nostalgia for the Thursday Night Bar remained, even as the Thursday night client interviews were abandoned and clients were seen by appointment during the day at what eventually became the MVL offices and later became modern distant communication—telephones, cell phones, and computers.

A Glance at Metro Volunteer Lawyers
The mission of Metro Volunteer Lawyers is “to bridge the gap in access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver metro area to people who could not otherwise afford legal services for their civil legal issues.”Volunteer attorneys founded the Thursday Night Bar in 1966; in that first year there were 20 volunteers. Today, TNB is MVL, and is a staffed department of the Denver Bar Association. MVL serves indigent clients in Adams, Arapahoe, Broomfield, Denver, Douglas, Elbert, Gilpin, and Jefferson counties through its Family Law Court Program, post-decree clinics, and direct representation by volunteer attorneys. As of Sept. 1, MVL has accepted 1,061 cases, 303 attorneys have taken cases, and 105 attorneys have been added to its panel.

In the past year, MVL’s successes include $94,000 raised at the sold-out Barristers Benefit Ball, which benefits MVL; a redesigned website; and participation in Colorado Gives Day, which benefits nonprofits. However, as more families face poverty and funding for legal aid continues to be cut, MVL needs support more than ever. For more information or to volunteer, visit metrovolunteerlawyers.org.

Indeed, at some point, members of the Denver Bar Legal Services Committee, which oversaw the TNB, believed the program should have a new, more relevant and creative name. The DBA Legal Aid Committee struggled with various new names for the TNB without success. A creative member of the committee then suggested that it conduct a contest to pick the best new name for the Thursday Night Bar program.  Entries were solicited from far flung places and sources, including the Colorado State Prison (and indeed several entries were received from that institution; residents of the prison were offered a certain number of hours of free legal advice if they won the contest).

Ballots poured in with all kinds of names suggested by folks from all over the country.  The winning name unanimously chosen by the judges was, yes, “The Thursday Night Bar,” submitted by none other than Jerry Conover!  The second, or runner-up, prize was submitted by a resident of the Colorado prison network and because Conover did not want (or hopefully need) free legal advice, the prison resident was provided free legal advice.

Later, however, the creative juices of the Legal Services Committee members regenerated and the committee came through with the new name, Metro Volunteer Lawyers.

A few of us had a hard time remembering the new name and kept reverting to TNB! For a while, Legal Services Committee meetings were held on Thursday in honor of the TNB.  The new name made sense, as MVL now encompasses the bar associations of metropolitan Denver.

The evolution of the TNB into MVL was not only a new designation, but a greatly expanded volunteer program  that would largely be financed through the annual Barristers Benefit Ball.  The proceeds from the ball enabled the DBA to partner with other contributing local bar associations, including those in Arapahoe, Jefferson, and Adams counties, and to fund a full-time lawyer volunteer program, staffed with a director, legal services coordinators, and a legal assistant.

Unfortunately, many of the original founders of the Thursday Night Bar are deceased, but most of these founders did live to see how their idea has become perhaps the longest continuous running lawyer volunteer program that continues to be a valuable and essential supplement to providing legal services to low-income and underserved persons. Yes, the TNB name has changed, but the idea hatched by those forward-thinking Denver lawyers in 1966 has persisted and continues to be a landmark for the bar associations in metropolitan Denver. It continues to be a necessary benefit for the many low-income clients served by the old TNB and its successor, MVL.

Howard Rosenberg is a professor at the University of Denver Sturm College of Law and a past president of the Denver Bar Association. Jon Nicholls is a partner at Nicholls & Associates. Jerry Conover is of counsel at Moye White and a past president of the Colorado and Denver Bar Associations.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

Tenth Circuit: Pointing Firearm at Suspect Not Excessive Force; Officer Had Probable Cause to Believe Suspect Stole Vehicle

The Tenth Circuit Court of Appeals issued its opinion in Henry v. City of Albuquerque on Friday, September 30, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner’s complaint arose from a night-time police stop. Petitioner, who is African-American, was pulled over in a rental vehicle, ordered out, handcuffed, and placed in the back of a marked police vehicle. After an investigation, officers realized that the rental vehicle driven by Petitioner had been erroneously reported as stolen and he was released. Petitioner alleges that he was singled out because of his race, in violation of the Fourteenth Amendment, and that the officers used excessive force in violation of the Fourth Amendment, including handcuffs that were too tight, rude language, and weapons aimed at him. The district court granted Respondents’ motion for judgement as a matter of law (JMOL) and found that that Respondent officers had not engaged in racial profiling and that they had not used excessive force. On appeal, Petitioner challenges the district court’s grant of JMOL.

The Court agreed with the district court’s determinations. When one officer makes the decision to check license plates, another officer cannot be found to have participated and allegedly done so based on the driver’s race; no reasonable jury could conclude that the second officer had racially profiled Petitioner by deciding to run his license plates based on his race. Additionally, Petitioner presented no precedent that pointing a firearm at a suspect, without more, constitutes excessive force; the officer “had probable cause to believe [Petitioner] had stolen a vehicle, a felony. [The officer] could reasonably conclude that the driver posed an immediate threat to the safety of the officers and the public—a driver caught with a stolen vehicle has strong incentive to evade arrest, given the seriousness of the crime.”

Tenth Circuit: Unpublished Opinions, 10/3/11

On Monday, October 3, 2011, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Unpublished

Lundahl v. Pennsylvania Manufacturers Ass’n Ins. Co.

State of New Mexico v. Gutierrez

Boyd v. Werholtz

United States v. Cobos-Chachas

United States v. Meeks

Martinez v. Milyard

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

Tenth Circuit: No Precedent for Requiring Immigration Judge to Grant Indefinite Continuance for Petitioner to Remain in Country while Awaiting Eligibility for Adjustment of Status

The Tenth Circuit Court of Appeals issued its opinion in Luevano vs. Holder, Jr. on Friday, September 30, 2011.

The Tenth Circuit affirmed the Board of Immigration Appeals’ decision. Petitioner applied for adjustment of status during his removal proceedings based on his eligibility for an immigrant visa. He also requested an indefinite continuance in anticipation of the receipt of a visa. The immigration judge determined that Petitioner was not then eligible for adjustment of status and denied the request for a continuance because the anticipated visa would not be available for several years. The Board of Immigration Appeals affirmed. Petitioner argues the immigration judge abused his discretion in denying the requested continuance.

The Court disagreed with Petitioner’s contentions. “According to the BIA, discretion to grant a continuance should generally be exercised favorably for aliens awaiting the adjudication of a pending I-130 petition. . . . An IJ should first determine an alien’s place in the adjustment process and then consider whether to grant a continuance.” “Although the agency cases permit, and may even require, an IJ to continue proceedings in order to await mere processing of a properly filed visa petition with a current priority date, there is no agency or court precedent for requiring an IJ to grant an indefinite continuance so that a petitioner may remain in this country while awaiting eligibility for adjustment of status. Escalera was not eligible for adjustment relief at the time of his removal proceedings. . . . Moreover, [Petitioner] was unlikely to be eligible within a reasonably proximate time.”

Additionally, Petitioner “claims his interrogation at the sobriety checkpoint was the result of racial profiling because his ethnicity was the only reason to suspect he was in the country illegally. He therefore claims the detention and questioning violated his constitutional rights. He requests dismissal of the proceedings against him as fruit of the poisonous tree.” The lone affidavit Petitioner submitted stated only that he believed he was not free to leave after the van was stopped. “It sets forth no information regarding the stop and presents no facts to show he was detained before he admitted to illegal entry, let alone that any detention was extended because of his race.” Therefore, the BIA did not err in concluding Petitioner had not shown a due process violation.

Tenth Circuit: Unpublished Opinions, 9/30/11

On Friday, September 30, 2011, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Unpublished

Navarro-Perez v. Holder, Jr.

United States v. Saldivar-Munoz

Roman v. Vaughn

Moore v. Miller

United States v. Prado-Diaz

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