August 23, 2019

Archives for May 14, 2015

Let’s Talk About Beer (Law)

BeerColorado loves its beer. Denver is the nation’s former microbrew capital and microbreweries throughout the state continue to thrive. Naturally, because beer business is big business, beer law became a practice area.

Manufacturing and selling alcohol is highly regulated, and microbreweries must comply with myriad state and federal alcohol regulations in addition to standard business regulations. Beyond the regulatory side of beer law, though, are intellectual property concerns. Recently, New Belgium Brewery has been involved in a publicized case about trademark rights to its Slow Ride Session IPA.

New Belgium filed for trademark protection for its Slow Ride IPA, which was granted without opposition by the USPTO. Later, it learned that Oasis Texas Brewing Co. was producing a beer named Slow Ride Pale Ale. According to New Belgium, the Fort Collins brewery offered to resolve the issue amicably in order to allow both breweries to continue to use the Slow Ride name in certain locations, but Oasis refused, instead issuing a cease and desist letter to New Belgium in which it demanded that all products bearing the Slow Ride name be destroyed and profits from Slow Ride given to Oasis. (Oasis claims New Belgium tried to “strong arm” it into accepting a joint use agreement and says that all negotiations with New Belgium have devolved into hostility.) New Belgium eventually filed a lawsuit in the U.S. District Court for the District of Colorado, seeking exclusive use of the Slow Ride name pursuant to its trademark. Earlier this month, a federal judge dismissed the lawsuit for lack of personal jurisdiction over the Texas-based defendants.

The Slow Ride dispute is far from the first trademark dispute to arise from craft beer. Ohio-based Great Lakes Brewing agreed to change the name of its Alchemy IPA as a result of a trademark conflict with the Craft Beer Alliance. Innovation Brewery, a small craft brewery in North Carolina, was accused by Michigan-based Bell’s Brewery of infringing on its trademarked slogan, “bottling innovation since 1985.” Boulder-based Kettle and Stone Brewing Co. agreed to change its name after contact from California’s Stone Brewing Co. Lagunitas Brewery in California dropped its lawsuit against Sierra Nevada Brewing Co. after public outrage at its comparison of the two beer companies’ IPA logos. The list goes on and on.

Later this month, CLE will host its annual Rocky Mountain Intellectual Property Institute. The plenary session, “Innovation & Disruption: How Crafty Micro-brews are Shaking Up the Beer Industry,” features attorney Michael Drumm of Drumm Law Group, LLC and Chris Hill of Odyssey Beerworks Brewery & Taproom in Arvada. The Rocky Mountain IP Institute will also feature a beer tasting this year. To register, click the link below.

CLE Program: The 13th Annual Rocky Mountain Intellectual Property Institute

This CLE presentation will take place from Thursday, May 28 through Friday, May 29, 2015. Click here to register.

Can’t make the live program? Order the homestudy here – CDMP3


Colorado Court of Appeals: Secretary of State Breached Public Trust by Using Public Funds for Private Purposes

The Colorado Court of Appeals issued its opinion in Gessler v. Grossman on Thursday, May 7, 2015.

Breach of the Public Trust—Discretionary Fund Statute.

In August 2012, Colorado Secretary of StateGessler traveled to Florida to attend and present at a two-day program sponsored by the Republican National Lawyers Association (RNLA). The RNLA seminar ended during the day on August 25, and Gessler stayed an additional night at an increased hotel rate and at the state of Colorado’s expense. The next day, he traveled to a different Florida city to attend the Republican National Convention (RNC).

Gessler used his statutorily provided discretionary fund to pay the $1,278.90 in documented travel and meal expenses incurred at the RNLA seminar. In addition, he requested reimbursement of “any remaining discretionary funds” in his discretionary account. He did not provide any documentation, but ultimately received $117.99 as the result of the request.

Colorado Ethics Watch filed a complaint with the Independent Ethics Commission (IEC). It alleged that Gessler had made false statements on travel expense reimbursement requests and misappropriated funds for personal or political uses. The IEC found that Gessler spent $1,278.90 of his discretionary account primarily for partisan—and therefore personal—purposes, in violation of the discretionary fund statute’s requirement that the fund be used in pursuit of official business. Gessler similarly violated the statute by requesting and receiving the balance in his discretionary fund without any documentation. Together, these constituted a breach of the public trust for private gain, in violation of the public trust statute, CRS § 24-18-103. Gessler sought judicial review of the IEC’s findings based on several assertions, each of which the district court rejected in a thorough written opinion.

On appeal, Gessler argued that Colo. Const. art. XXIX, § 5 applies only to gifts, influence peddling, and standards of conduct and reporting requirements that expressly delegate enforcement to the IEC. The Court of Appeals disagreed, noting that § 5 gives the IEC authority “under any other standards of conduct and reporting requirements as provided by law.”

Gessler also argued that the public trust statute does not fall within the ambit of § 5 because it is “hortatory” only and does not provide a specific standard of conduct. The Court disagreed. It found that the statute sets forth specific standards of conduct. It also noted that Colo. Const. art. XXIX, § 6 provides an express remedy for violations of the public trust for private gain.

Gessler contended that the discretionary fund statute does not fall within the ambit of § 5. The Court rejected Gessler’s premise that Article XXIX excludes standards of conduct related to compensation. It also noted that even if compensation were excluded from the IEC’s jurisdiction, the discretionary fund statute does not constitute compensation. Discretionary funds are not received in return for services rendered but may only be used “in pursuance of official business.” It also rejected Gessler’s argument that he had unfettered discretion over the use of discretionary funds as leading to an absurd result, as well as rejecting Gessler’s claim that there is no specific standard of conduct for expenditure of the funds. The Court pointed to the requirement that those funds be used “in pursuance of official business.”

Gessler also argued that the IEC had construed its jurisdiction so broadly as to render § 5 vague and overbroad. The Court rejected this contention by noting it had construed § 5 so as to recognize the applicable limits to the IEC’s jurisdiction.

Gessler contended that if the IEC had jurisdiction, then its decision was arbitrary or capricious. The Court disagreed, finding substantial evidence in the record to support the IEC’s determination that Gessler improperly used his discretionary fund to attend the RNLA seminar and the RNC.

Finally, the Court rejected Gessler’s argument that he was denied procedural due process because he was not given advance and adequate notice of the standards of conduct he was accused of having violated. The Court found that Gessler had received ample notice of the claims asserted against him and, in any event, there was no support for any claim of prejudice to Gessler as a result of the notice he received. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Abuse of Discretion to Admit Video Deposition of Adverse Witness

The Colorado Court of Appeals issued its opinion in Winkler v. Shaffer on Thursday, May 7, 2015.

Motion to Strike Video Deposition—Negligence Per Se Jury Instruction.

Plaintiffs were injured in a multi-vehicle accident during a snowstorm on an icy highway. Defendant lost control of a semitrailer after he was struck by two vehicles and came to a stop blocking the highway. Plaintiffs’ vehicle hit defendant’s truck in the ensuing pileup. Plaintiffs sued defendant and a number of other co-defendants not parties to this appeal.

At trial, defendants submitted a video deposition of Sergeant Gates, who, as the first law enforcement officer to respond to the accident, had witnessed part of it. Gates concluded that defendant drove reasonably, given the weather and road conditions.

Following trial, the jury concluded that some defendants were negligent and had caused 100% of plaintiffs’ injuries. It also concluded that defendant and several other co-defendants were not negligent and had not caused plaintiffs’ injuries.

On appeal, plaintiffs asserted that the trial court erred in denying their motion to strike Sergeant Gates’s deposition. Plaintiffs argued that Gates’s deposition exceeded the expert disclosure’s scope and that they did not have adequate time before trial to respond to the opinions expressed. The Court of Appeals disagreed. Plaintiffs failed to establish any prejudice or harm associated with this alleged error. They made no offer of proof of what they would have done or shown had they had additional time to respond to the deposition. They never requested a continuance after the deposition, which was taken ten days before trial. Moreover, their expert’s testimony provided rebuttal to the opinions expressed in the deposition, so any error was harmless.

Plaintiffs argued that the trial court erred in refusing to give a negligence per se instruction. The Court disagreed. The instructions given described the standard for common law negligence. Because the statutory standard under CRS §§ 42-4-1008 and -1101 codify common law negligence, any additional negligence per se standard would have been redundant. To find a statutory violation needed to establish negligence per se, a jury first has to find negligence, so giving the added instruction is not necessary. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Complaint Filed Two Years and One Day After Accrual Date Untimely

The Colorado Court of Appeals issued its opinion in Williams v. Crop Production Services, Inc. on Thursday, May 7, 2015.

Tort Statute of Limitations—CRCP 6(a)(1) Not Applicable to Statutory Time Periods—CRS § 13-80-102(1)(a).

The parties agreed that this wrongful discharge action sounded in tort, was subject to the two-year statute of limitations in CRS § 13-80-102(1)(a), and accrued on the date of termination by defendant. The parties disagreed on the manner of calculating the deadline for filing the complaint. Plaintiff claimed he had until October 8, 2013, or two years and one day after the accrual date. Defendant countered that the complaint had to be filed no later than the second anniversary of the accrual date, October 7, 2013. The Court of Appeals agreed with defendant.

Plaintiff relied on CRCP 6(a)(1) to calculate the accrual date, arguing that “the day of the act, event or default from which the designated period of time begins to run shall not be included.” Therefore, the date of defendant’s termination was not to be included and he had until two years after October 8, 2011 to file his complaint.

The Court rejected the application of the CRCP 6(a)(1) counting method for determining the deadline for filing an action under CRS § 13-80-102(a), instead looking to the Colorado statutes. CRS § 13-80-102(1) provides that tort actions “must be commenced within two years after the cause of action accrues, and not thereafter.” Pursuant to CRS § 2-4-107, the word “year” means a calendar year, so days need not be counted. Here, the cause of action accrued on the date of termination and therefore had to be filed no later than the second anniversary of that date—that is, by October 7, 2013. The district court was therefore correct in dismissing the action as untimely filed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Homeowners’ Association’s Removal of Arbitration Provision Invalid Against Builders

The Colorado Court of Appeals issued its opinion in Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc. on Thursday, May 7, 2015.

Motion to Compel Arbitration—Construction Defect Action.

Plaintiff association (Vallagio) brought this action against defendants, alleging construction defects in the Vallagio residential development project (Project). The Project was organized as a common interest community under the Colorado Common Interest Ownership Act (CCIOA). Defendant Metro Inverness, LLC (Metro) was the Project’s developer and declarant. Defendant Metropolitan Homes, Inc. was Metro’s manager and the Project’s general contractor. Defendants Krause and Kudla were declarant-appointed members of Vallagio’s board before control of the Vallagio was transferred to unit owners.

The declaration contained a general provision allowing unit owners to amend the declaration by a 67% vote and a consenting vote of the declarant. The right of declarant consent expired after the last unit was sold to an owner other than declarant. There was a mandatory arbitration provision specifically for construction defect claims, which provided that it could never be amended without the written consent of declarant, without regard to whether declarant owned any portion of the Project at the time of the amendment.

In September 2013, after the declarant had turned over control of Vallagio and no longer owned any units, at least 67% of the unit owners voted to amend the declaration to remove the arbitration provision in its entirety. Metro’s consent was not obtained.

Vallagio then filed suit against defendants. Defendants moved to compel arbitration, relying on the original declaration provision, arguing that the amendment removing it was invalid because declarant had not consented. The district court denied the motion to compel arbitration, finding that the declaration had been effectively amended to remove the arbitration provision. This interlocutory appeal followed.

Defendants first argued that it was error to conclude that the declaration’s amendment provisions were ambiguous and to construe that ambiguity against declarant. The Court of Appeals agreed. Based on the plain language of the declaration, the Court held that amendments to the arbitration provision required Metro’s consent. Because that consent was not obtained, the motion to compel arbitration as to Metro should have been granted. The Court also agreed that it was error to conclude that the declarant consent requirement for amendments of the arbitration agreement violated CCIOA and was void and unenforceable.

The district court had found that CCIOA § 38-33.3-302(2) prohibited the consent requirement. This section prohibits restrictions on an association’s power that are “unique to the declarant.” Under this declaration, the unit owners have the power to amend the declaration, and under this section of CCIOA the declarant consent requirement does not impose any limitation on the “power of the association.”

The district court had also found that the declarant consent requirement violated CCIOA § 38-33.3-217 because it effectively required more than a 67% vote of unit owners to amend the declaration. The Court disagreed, finding nothing in that statutory provision prohibiting declarant consent for an amendment, but merely requirements for unit owners’ voting percentages. The Court also found that the consent requirement did not allow control of unit owners’ votes, because 67% of the unit owners had to vote favorably to amend the declaration and that requirement was not altered by the declarant consent provision. The Court also rejected Vallagio’s argument that the consent requirement violated CCIOA § 38-33.3-303(5) by allowing Metro Inverness to control Vallagio after the declarant control period expired. CCIOA provisions regarding declarant consent to an association’s actions were not relevant to the issue here presented.

Vallagio argued that even if Metro could enforce the arbitration provision, the other defendants lacked standing to do so because they were not parties to the declaration. The district court did not address this argument, so the Court remanded for resolution of these issues, in particular, whether the other defendants were third-party beneficiaries to the declaration’s arbitration provision.

Defendants argued that they could rely on the arbitration provisions in individual unit owners’ purchase agreements. Because this issue might arise on remand if the district court finds that the other defendants lack standing to enforce the declaration’s arbitration provision, the Court addressed it. The Court agreed with the ruling that Vallagio was not bound by those individual purchase agreements.

The Court rejected Vallagio’s claims that its Colorado Consumer Protection Act (CCPA) claims are non-arbitrable. The right to a civil action under CCPA § 6-1-113 was not made non-waivable under the statute.

The order was reversed in part and affirmed in part. The case was remanded for an order compelling arbitration of Vallagio’s claims against Metro, and for further proceedings to determine whether the claims against the other defendants must be arbitrated.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Pro Se Plaintiff Practiced Law by Attempting to Litigate Minor Child’s Claims

The Colorado Court of Appeals issued its opinion in Cikraji v. Snowberger on Thursday, May 7, 2015.

Summary Judgment—Colorado Governmental Immunity Act—Unauthorized Practice of Law.

Plaintiff’s son C.C. was a member of the Durango High School cross-country team, and he agreed to be bound by the Colorado High School Activities Association (CHSAA) bylaws. Plaintiff requested permission to remove C.C. from school to go on a trip to Ohio. While in Ohio, C.C. competed in the U.S. Air Force 10k and won. After the trip, defendant Perrin (DHS’s athletic director) informed plaintiff that C.C. would be disciplined for violating the CHSAA Outside Competition Rule because C.C. had not received permission to compete in the 10k. C.C. was suspended from a single cross-country meet.

Plaintiff e-mailed various defendants about the suspension. He also attended a Durango Board of Education meeting, where he argued that the behavior of defendant McMillian (C.C.’s cross-country coach) was bullying.

Plaintiff thereafter filed a pro se complaint alleging that defendants violated his and C.C.’s “rights.” Defendants filed motions to dismiss and plaintiff filed a motion for summary judgment. The district court denied plaintiff’s requested summary judgment and entered judgment in favor of defendants. In pertinent part, the court concluded that plaintiff failed to establish that he followed the notice provisions of the Colorado Governmental Immunity Act (CGIA), and therefore, the court was without jurisdiction to consider his claims.

The Court of Appeals noted many deficiencies in plaintiff’s pro se brief, but nonetheless considered his arguments. Plaintiff was the only named plaintiff, but his claims were almost exclusively belonging to his son and, by representing and acting on his son’s behalf, he was engaging in the practice of law. Because plaintiff is not a licensed attorney in Colorado, he cannot represent his son in court proceedings. The Court dismissed those portions of plaintiff’s appeal representing his son with prejudice. To the extent plaintiff’s claims addressed injuries to himself, the Court affirmed the summary judgment in favor of defendants, because plaintiff failed to comply with the jurisdictional notice requirements of the CGIA. Those portions of the appeal plaintiff filed on behalf of C.C were dismissed with prejudice, and the judgment was otherwise affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/14/2015

On Thursday, May 14, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

8865 North Cove v. American Family Mutual Insurance Co.

Helfferich v. Marcantel

Lankford v. Colvin

United States v. Gutierrez-Carranza

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

The Future of Law (Part 18): How Long Before the Future Gets Here? Cont’d.

“A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”

Max Planck, founder of quantum theory,
in his Scientific Autobiography and Other Papers

rhodesMax Planck’s comment is right in line with what we learned last time from physicist Thomas Kuhn’s seminal work The Structure of Scientific Revolutions about how paradigm shifts come to be adopted. Kuhn also speculated that it takes a full generation for a paradigm to shift.

How long is a generation? This blog post from biological anthropologist Greg Laden provides a pithy answer:

Short Answer: 25 years, but a generation ago it was 20 years.
Long answer: It depends on what you mean by generation.

(The post continues with an entertaining and informative commentary. It’s short, and worth a read.)

If these three scientists are correct, then the trends we’ve been looking at in this series will take another 20-25 years to become the law’s “new normal.” That can make us feel either impatient or complacent, but before we get too settled in our position, we might keep in mind the lessons of this year end 2010 New York Times article that points out that we often envision the new normal by extrapolating from the recent past, which makes for a lousy planning strategy. Why? Because we don’t take into account a simple, game-changing factor:

The element of surprise.

Many of the predictions made in this series are surprising, to be sure, but even more surprising is that these things are already happening but many of us just aren’t seeing them. Why not? Because our brains literally can’t take them in.

In this post at the end of 2014, we looked at research from the emerging field of cultural neurology that suggests our brains’ observation and cognitive faculties are so linked to our cultural context that we simply can’t see paradigm shifts when they happen. Our cultural bias blinds us. We’re caught in The Emperor’s New Clothes syndrome.

Who can see the shift? The new generation. By the time the new paradigm’s “opponents eventually die, and a new generation grows up that is familiar with it,” the paradigm we can’t see now will be the only one the new generation has ever known.

And just to make things a bit more complex, as we’ve also seen before, some trends don’t sustain their momentum, and some paradigms never shift for lack of a following. Which is why passivity doesn’t serve us in times of great change.

What’s the alternative? We can position ourselves to be surprise makers instead of surprise takers. We can grab the new paradigm and run with it, and in so doing help to shape it the way we’d like.

We’ll talk next time about how we can do that.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

Finalists Selected for Vacancy on Colorado Court of Appeals

On Wednesday, May 13, 2015, the Colorado State Judicial Branch announced the Colorado Supreme Court Nominating Commission’s selection of three candidates for the forthcoming vacancy on the Colorado Court of Appeals. The vacancy will occur with the retirement of Hon. James S. Casebolt, effective July 1, 2015.

The three candidates for the vacancy are Robert T. Fishman, Elizabeth L. Harris and Ted C. Tow, III. Robert T. Fishman is Of Counsel with Ridley McGreevey & Winocur P.C. in Denver, where his practice focuses on appellate representation and litigation. Elizabeth L. Harris is a solo practitioner focusing on business litigation and appellate law. Ted C. Tow, III, is currently a district court judge in the Seventeenth Judicial District, where he presides over a predominantly domestic relations docket.

Under the Colorado Constitution, Governor Hickenlooper has 15 days from May 13 in which to select one of the nominees for appointment. Comments regarding any of the nominees may be sent to the governor at For more information, click here.

Colorado Court of Appeals: Parties to Dissolution Have Affirmative Duty to Disclose Information Under Rule 16.2

The Colorado Court of Appeals issued its opinion in In re Marriage of Hunt on Thursday, May 7, 2015.

Legal Separation—Business Valuation—CRCP 16.2(e)—Mandatory Disclosures—Reallocation.

In July 2012, wife petitioned for legal separation of the parties’ marriage. One month later, husband filed a certificate of mandatory disclosures under CRCP 16.2. In September 2012, based on an agreement reached in mediation, the parties entered into a memorandum of understanding (MOU) dividing the marital value of a business, Big R Construction Company (Big R), owned and operated by husband. In March 2013, wife filed a motion for relief from the MOU provisions relating to Big R, which was denied.

On appeal, wife contended that husband violated CRCP 16.2(e) by not disclosing mandatory financial information regarding Big R, and therefore, the district court erred by not granting her motion to reopen the property division under CRCP 16.2(e)(10). Husband had an affirmative duty to disclose financial information regarding Big R, and he violated CRCP 16.2(e) by failing to disclose all personal and business financial statements prepared in the last three years; loan applications and agreements from 2011 and 2012; a 2010 appraisal of Big R’s real property; and a 2012 appraisal of its equipment. Without husband having violated the disclosure requirements of CRCP 16.2, wife would have been bound by her decision to enter into the MOU, acknowledging the uncertain value of Big R. Because husband violated CRCP 16.2(e), however, the plain language of CRCP 16.2(e)(10) applies, which allows a five-year period within which to reallocate “material assets or liabilities, the omission or non-disclosure of which materially affects the division of assets and liabilities. Accordingly, the district court should have applied CRCP 16.2(e)(10) and granted wife’s motion to reopen the property division, despite the MOU language. The district court’s order was reversed and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Action Not Final Where Amount of Taxes Owed Remains Undetermined

The Colorado Court of Appeals issued its opinion in Atherton v. Brohl, Executive Director of the Colorado Department of Revenue on Thursday, May 7, 2015.

Conservation Easement—Tax Credit—Damages—Jurisdiction.

In 2002 and 2005, the Athertons recorded conservation easement deeds regarding two parcels they own in Jefferson County. Thereafter, they filed income tax returns claiming conservation easement tax credits pursuant to CRS § 39-22-522, which were later disallowed by the Department of Revenue (Department). The district court found in favor of the Department and held that the tax credits were invalid, but refused to fix the dollar amount that the Athertons owed the Department, stating that any such dollar amount would have to be determined at a later phase in the proceedings.

On appeal, the Athertons argued that the district court erred in finding the tax credits invalid. The Department, on the other hand, argued that the district court’s judgment may not be final because it establishes the Athertons’ liability but failed to fix the dollar amount they owe. Because the district court’s order did not end the action in which it was entered, leaving the issue of damages to be determined, it is not a final judgment. Therefore, the Court of Appeals lacked jurisdiction to determine the merits of the appeal, and the case was dismissed for lack of jurisdiction.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Signatory to Arbitration Agreement May Not Equitably Avoid Arbitration After Acknowledging Agreement

The Colorado Court of Appeals issued its opinion in Meister v. Stout on Thursday, May 7, 2015.

First Impression—Compelling Arbitration on a Non-signatory—Appellate Attorney Fees—Confirmation of Arbitration Award.

DeLollis and Stout founded an information technology company, Venti Solutions, LLC. Meister invested in Venti and became a member of the company. The purchase agreement signed by Venti, Stout, DeLollis, and Meister granted Meister a 20% interest in Venti in exchange for a capital contribution of $500,000.

The agreement incorporated by reference the Venti operating agreement, which was executed by Stout and DeLollis. The operating agreement had a dispute resolution article providing that arbitration was the exclusive mechanism for resolving all disputes.

In 2012, Meister sued DeLollis, Stout, and Venti. DeLollis and Venti moved to compel arbitration, and the court so ordered. The arbitrator dismissed Meister’s claims with prejudice and awarded $375,738.70 against him on Venti’s breach of contract counterclaim. The district court confirmed the award.

Meister appealed on the ground that arbitration should not have been compulsory as to his claims against Venti, a non-signatory to the operating agreement. Under Colorado law, both signatory and non-signatory parties may be bound by an arbitration agreement if so dictated by ordinary principles of contract law. Equitable estoppel may also be used to bind parties to an arbitration agreement.

The Court of Appeals held that Meister’s claims against Venti were subject to arbitration under an estoppel theory. All of his claims referenced or presumed and relied on the existence of the operating agreement. He was therefore equitably estopped from avoiding arbitration of his claims against Venti. As additional support for this conclusion, the Court noted that Meister’s claims alleged interconnected and concerted misconduct among Venti, Stout, and DeLollis, and it was admitted that Stout and DeLollis were subject to the operating agreement and the arbitration provision.

Meister also challenged the district court’s confirmation of the arbitration award. The Venti operating agreement required arbitration to take place not more than sixty days after selection of an arbitrator. Originally scheduled for July 9 and 10, 2013, arbitration was postponed to September 3 and 4, after Meister failed to pay the arbitration deposit. Meister was also under travel restrictions stemming from an unrelated federal indictment in Florida. He did not disclose these criminal proceedings to the arbitrator or to defendants. He filed a motion to appear electronically on the basis of poor health. Defendants discovered his involvement in criminal proceedings and Meister refused the arbitrator’s requests to verify his health status. His request to appear electronically was denied. The Court affirmed the district court’s ruling and remanded the case for determination of the appellees’ attorney fees and costs.

Summary and full case available here, courtesy of The Colorado Lawyer.