July 17, 2019

Archives for 2012

Tenth Circuit: No Copyright Infringement Without Substantial Similarity

The Tenth Circuit published its opinion in Blehm v. Jacobs on Thursday, December 27, 2012.

Gary Blehm brought a copyright infringement action against Albert and John Jacobs and the Life is Good Company (collectively “Life is Good”). Blehm is the creator of copyrighted posters featuring cartoon characters called “Penmen.” He alleged that numerous Life is Good depictions of a cartoon character called “Jake” infringed on his copyrighted works. The district court granted Life is Good’s motion for summary judgment, holding that no infringement occurred because the accused works were not substantially similar to the legally protectable elements of the copyrighted Penmen works.

The Tenth Circuit first discussed the idea/expression distinction required by the § 102(b) of the Copyright Act. Because the Act protects expression, not ideas, the court looks at only the protected elements, the expression, to determine if there are substantial similarities to an accused work. The test is “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s . . . expression by taking material of substance and value.” After comparing the images, the court found them “so dissimilar as to protectable expression that the substantial similarity question need not go to a jury” and affirmed summary judgment for the defendants.

Tenth Circuit: 28 U.S.C. § 1447(d) Prohibits Review of Remand Order Based on Lack of Subject Matter Jurisdiction

The Tenth Circuit published its opinion in Hill v. Vanderbilt Capital Advisors, LLC on Thursday, December 27, 2012.

Plaintiffs filed an action against Vanderbilt Capital Advisors, LLC and others in New Mexico state court. The suit was removed to federal court. The district court remanded the entire case back to state court, concluding that it lacked subject matter jurisdiction because Plaintiffs did not have standing to sue. 28 U.S.C. § 1447 governs cases removed from state court and § 1447(d) prohibits appellate review of remand orders where the remand was based on lack of subject matter jurisdiction. Because a dismissal for lack of standing “can be at least colorably characterized as a dismissal for lack of subject matter jurisdiction,” the Tenth Circuit held that under 28 U.S.C. § 1447(d), it had no jurisdiction to hear an appeal of the remand order.

Remembering John Grund – Litigator, Mentor, Friend

JohnGrundCLE is saddened to hear of the sudden death of John Grund, a well-respected litigator and one of our favorite authors and presenters. John has written the “Torts” chapter in the Annual Survey of Colorado Law since 2000 and writes three chapters in Colorado Courtroom Handbook for Civil Trials. He has presented at many of CLE’s torts and litigation programs over the years and has always been a welcome sight at the CLE offices.

John founded and was managing shareholder at Grund • Dagner, P.C., in Denver. He practiced throughout the Rocky Mountain region, specializing in the defense of complex and multidistrict litigation and emphasizing product liability, recreation/amusement liability, common-carrier and general aviation law, hospital liability, professional negligence, and insurance law. John was an appointed member of the Colorado Supreme Court Committee on Civil Pattern Jury Instructions (since 1987) and chairs the subcommittee responsible for Product Liability, Professional Malpractice, and Insurance Bad Faith.

Well-respected and admired by his peers, John was the first recipient of the John W. Grund Excellence in Leadership Award in 2001; the first recipient of the President’s Professionalism Award in 2010; and the recipient of a DRI Service Award on March 12, 1999. He has been named a Colorado Super Lawyer, 2007-present. He has been selected to The Best Lawyers in America, in the specialty of Insurance Law, from 2007 to present.

John amazed everyone who knew him by his energy, keen intellect, wry sense of humor, and limitless curiosity for everything from the law, to sports, literature, and music. We at CLE will greatly miss his professionalism, expertise, feistiness, and the charming twinkle in his eye, but we are profoundly grateful that we could call him our friend.

Tenth Circuit: Petition for Review From Order of FDIC Denied

The Tenth Circuit published its opinion in Frontier State Bank v. Federal Deposit Insurance Corp. on Wednesday, December 26, 2012.

In 2002, Frontier State Bank (Frontier) began using a “leverage strategy” under which it funded long-term investments with short-term borrowing to generate profits from the difference (“spread”) between long-term and short-term interest rates. This strategy caused significant concern for bank examiners at the Federal Deposit Insurance Corporation (FDIC). After raising the issue with Frontier several times and being dissatisfied with Frontier’s response, the FDIC sought a cease-and-desist order to keep it from executing its leverage strategy in an unsafe or unsound manner. After a hearing, an ALJ concluded Frontier had engaged in unsafe or unsound practices and recommended a cease-and-desist order that addressed specific issues. The FDIC Board adopted the ALJ’s proposed order and Frontier filed a petition for review with the Tenth Circuit, contending the Board’s order was arbitrary and capricious.

In its order, the Board imposed a 10% tier 1 leverage capital ratio. The Tenth Circuit held that it could not review this part of the order because decision-making on a capital requirement was committed to the FDIC’s sole discretion by the International Lending Supervision Act of 1983. The court had no meaningful standard to use to review the Board’s decision. The court held that the other challenged items in the order were all supported by the ALJ’s findings and his conclusions were reasonable so the Board’s order was not arbitrary or capricious. The court denied Frontier’s petition for review.

Tenth Circuit: Summary Judgment for Employer Reversed in Workers’ Compensation Retaliation Claim

The Tenth Circuit published its opinion in Barlow v. C.R. England, Inc. on Wednesday, December 26, 2012.

Plaintiff Willie Barlow worked for C.R. England (England) as a security guard. He formed a company to provide janitorial service to England and did that in addition to his security job. He filed a workers’ compensation claim in June 2007 after being struck in the head by a heavy gate. He continued working at England in both capacities while receiving workers’ compensation benefits, but had a lifting restriction of 25 pounds. In November 2007, England terminated Barlow’s janitorial contract and fired him in April 2008 from his security guard job. The district court granted summary judgment for England on Barlow’s Title VII and § 1981 race discrimination claims, FLSA overtime claim, and wrongful discharge in violation of public policy claim based on workers’ compensation retaliation.

The Tenth Circuit affirmed summary judgment on the race discrimination claims, holding Barlow failed to establish a prima facie case. The court also affirmed summary judgment for England on the FLSA claim. Barlow alleged he had the status of employee under the FLSA while performing janitorial work and was thus due overtime pay. The court applied the economic realities test and decided Barlow was not an employee for purposes of FLSA coverage while performing his janitorial work.

The court held Barlow had established a prima facie case of retaliatory discharge from his security guard job. England’s site facility manager, Smith, fired Barlow six days after an email exchange with England’s workers’ compensation manager, who expressed frustration with Barlow’s collection of benefits. The court disagreed with England’s argument that timing did not support Barlow’s case because he had filed for benefits 10 months before termination. “Colorado law protects an employee’s ongoing receipt of workers’ compensation benefits, not just the employee’s initial filing.” The Tenth Circuit reversed summary judgment on the retaliatory discharge claim regarding the security job and remanded on the janitor retaliatory discharge claim as it was not clear if the district court applied state or federal law in determining Barlow was an independent contractor rather than an employee.


Tenth Circuit: Unpublished Opinions, 12/27/12

On Thursday, December 27, 2012, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Byers v. Astrue

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

Tenth Circuit: Unpublished Opinions, 12/26/12

On Wednesday, December 26, 2012, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Endriss v. Astrue

United States v. Davis

Tejeda-Acosta v. Holder

United States v. Iqbal

United States v. Jasso-Herrera

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

Colorado Court of Appeals: Announcement Sheet, 12/27/12

The Colorado Court of Appeals issued seven published opinions and 29 unpublished opinions on Thursday, December 27, 2012.


Banning v. Prester

People v. Brosh

Damian v. Mountain Parks Electric, Inc.

Harner v. Chapman, M.D.

Raptor Education Foundation, Inc. v. State of Colorado, Department of Revenue, Division of Motor Vehicles

Extreme Construction Company v. RCG Glenwood, LLC

People v. Cito

The summaries for these 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.


Evidence and Ethics – What to Do When Handed a Smoking Gun

Gerald Pratt photo NEWThe Colorado Rules of Professional Conduct are clear that when an attorney is in possession of client property, such as a retainer, the attorney must exercise the utmost care in safekeeping that property. However, what are the ethical guidelines to follow if the property the attorney is asked to keep safe has been used in a crime? Is it ethical for an attorney to keep safe a gun that was used in the commission of a crime?

The Rules of Professional Conduct mandate that all client dealings must be kept confidential. However, they also require that attorneys refrain from conduct involving deceit, fraud, dishonesty, or misrepresentation. How can an attorney retain confidentiality while not assisting the client in hiding a murder weapon? What is the attorney to do about the evidentiary issues that arise in this scenario?

These topics and more will be discussed on Friday, December 28, 2012 at noon. Gerald Pratt, of Pratt & Landry, will present on ethical issues involved in procuring evidence. He will give guidance on how an attorney should react when presented with a smoking gun or a compromised computer, the nuances of preserving evidence versus limiting access to evidence, and more. Please join us for this final ethics presentation of the year.

CLE Program: The Smoking Gun, the Compromised Computer, and Other Ethics Issues Involved in Procuring Evidence

This CLE presentation will take place on Friday, December 28, 2012, at 12:00 p.m. (noon). Click here to register for the live program, or click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

Tenth Circuit: Unpublished Opinions, 12/21/12

On Friday, December 21, 2012, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Samuel v. City of Broken Arrow

Diaz Mateo v. Holder

Blake v. Webster

Andrews v. Geithner

Block v. Astrue

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

Colorado Supreme Court: Trial Court Abused its Discretion by Striking Rebuttal Testimony of Expert Witness

The Colorado Supreme Court issued its opinion in In re Warden v. Exempla, Inc. on Thursday, December 20, 2012.

Scope of Discovery—CRCP 37—Rebuttal Disclosures—Late Disclosures—CRCP 26.

The Supreme Court vacated the trial court’s order striking the testimony of plaintiff’s rebuttal expert witness and the testimony of two previously disclosed expert witnesses. The Court held that the trial court abused its discretion when it excluded the expert witness’s rebuttal testimony because her testimony properly refuted a central theory of the defendants’ case. It also held that the trial court abused its discretion when it excluded the new testimony of two previously disclosed experts, because the late disclosure did not harm defendants, as required for sanctions under CRCP 37. The Court therefore made the rule absolute and remanded the case for further proceedings.

Summary and full case available here.

Colorado Supreme Court: Crim. P. 35(c) Post-Conviction Relief Inapplicable but Defendant May Seek to Withdraw Plea Under Crim. P. 32(d) for a “Fair and Just Reason”

The Colorado Supreme Court issued its opinion in Kazadi v. People on Thursday, November 20, 2012.

Criminal Law—Post-Conviction Review—Crim.P. 35(c) and 32(d)—Deferred Judgment—CRS § 18-1.3-102—Withdrawal of Guilty Plea—Ineffective Assistance of Counsel.

In this appeal, petitioner Yanick Kazadi, a legal permanent resident born in the Congo, sought Crim.P. 35(c) post-conviction review of his felony plea leading to a deferred judgment. Kazadi claimed ineffective assistance of counsel for counsel’s failure to notify him of possible deportation consequences for pleading guilty to obtain a deferred judgment and sentence.

The Supreme Court affirmed the ruling of the court of appeals, holding that Kazadi may not seek review of his deferred judgment and sentence under Crim.P. 35(c) while in the deferred judgment period because, in a deferred judgment situation, there has not been a judgment of conviction that makes Crim.P. 35(c) review available. Kazadi may, alternatively, seek to withdraw his guilty plea under Crim.P. 32(d). This rule allows a defendant to move to withdraw a guilty plea before sentence is imposed. In the unique situation of a deferred judgment, the defendant’s case is continued and there is no imposition of sentence and entry of judgment while the deferred judgment is in effect. Therefore, Kazadi may seek to withdraw his guilty plea pursuant to Crim.P. 32(d) for a “fair and just reason.”

Summary and full case available here.