Colorado Business Litigation Lawyer Blog

In the 1990s, the "patent troll" carried a negative connotation, a person or company that aggressively enforced its patents through assertive lawsuits. However the troll of the 2000s translates into an entirely different hobgoblin.

Frenzy in the research, software and technology fields has ensued as forward thinking businesspersons are buying up struggling companies no longer solely for the product or idea itself, but for multiple strategic reasons.

In a defensive chess move to protect itself from its competitors, companies are being purchased for their collection of patents, in an effort to shelter themselves from competing companies' lawsuits. Most recently, Google wrangled a deal with Motorola Mobility for its 17,000 patents in an attempt to protect itself from competitors' potential lawsuits against companies who have purchased Google's Android software.

Conversely, Eastman Kodak is looking to sell its patents during a two-stage auction. Its lucrative patent settlements dried up recently prompting Kodak's sale. It is rumored that an undisclosed buyer may be interested in purchasing these patents for defensive protection. The speculation over this potential transaction resulted in a positive spike in Kodak's share price this week, closing at $2.69, a 26% increase.

There is also significant money to be made in the patent business. If it is diligent, a company that has acquired a patent portfolio can go about filing infringement lawsuits to defend its patents. Many times defendants will settle patent lawsuits due to the high cost of litigation or fear of jury verdicts. Consequently, due to the high prices of licensing fees and defending lawsuits, smaller independent companies or individuals have decided to simply throw in the towel rather than play the high stakes game.

So is the troll term misapplied? Are companies using lawsuits as a profit center? It appears there is still a great argument to be made between the terms "exploitation" and "opportunity" as it relates to the patent world.

Artist Christo Vladimirov Javacheff, "Christo", famous for suspending huge curtains of orange fabric over bridges, buildings and other public spaces throughout the world, has embarked on yet another art project. Christo and his wife Jeanne-Claude have targeted Colorado for a second time (the first time being in 1972) with plans to hang silvery, translucent fabric over the Arkansas River for two weeks in August 2014 for their "Over the River" project. Their original plan entailed a 42-mile stretch of river, however the Bureau of Land Management (BLM) agreed to an approximately 6 mile area.

Unfortunately for Christo, his vision has been met with opposition as the citizens group "Rags Over the Arkansas River" (ROAR) and two fly-fishing businesses, The Arkansas River Fly Shop and ArkAnglers, filed a lawsuit July 22, 2011 in Denver District Court. They are opposing the artist's project pointing out the possible adverse impact on park values and requirement of a state permit.

The feared environmental harms would potentially impact wildlife including the bighorn sheep population, birds and elk, not to mention an unfavorable impact to fishing, rafting and other popular activities along this scenic river.

ROAR claims that in order to support the cables and fabric, Over the River would have to use heavy industrial equipment to drive thousands of industrial rock bolts into the canyon walls all the while damaging public lands and resources, not to mention creating noise, dust and causing hundreds of highway closures.

In June, an agreement with park officials was approved pending the Bureau of Land Management granting a federal permit. In exchange, Christo's team would pay $550,000 in fees and expenses. The Colorado Wildlife Commission initially opposed the project before legislation married the two agencies.

While the BLM was analyzing the project over the last several years, it received thousands of public comments prompting an $11million dollar study paid for by Christo out of his approximately $50 million dollar budget. The BLM's final Environmental Impact Statement addresses the various wildlife and traffic concerns over the narrow 2-lane canyon highway during the five year project's construction and demolition.

Opponents state that they will continue to fight the project because of the devastation they foresee occurring to this area.

To read the BLM's Environmental Impact Statement go to: http://www.blm.gov/co/st/en/fo/rgfo/planning/otr/otr_final_eis/otr_final_eis_documents.html

A $100 million dollar class action settlement has just recently been reached against popular OppenheimerFunds, whose trademark touts "The Right Way to Invest".

Investors who thought their money was being safety held in conservative, low-risk mutual funds were unpleasantly surprised when in 2008 two of Oppenheimer's conservative investments, The Champion Income Fund and the Core Bond Fund lost 78.5% and 35.8% of their values, respectively.

Shareholders outraged by the gross loss sued the funds in 2009. Plaintiffs' lawyers alleged that Oppenheimer misrepresented the funds by marketing and selling them as a "diversified portfolio" that "[did] not involve undue risk". In actuality, the funds took gambles on mortgage backed securities involving a much higher risk than what was represented, and which "caused the Fund to crash".

In order "to eliminate the burden, expense, uncertainty and risk of further litigation," Oppenheimer officials settled the cases while continuing to deny any wrongdoing.

A hearing to approve the settlement is currently scheduled for September 30 before U.S. District Judge John L. Kane in Denver.

In order to participate in the class action, affected shareholders are required to file a Proof of Claim form.

The period in question for the Champion Income Fund is for funds purchased between January 1, 2006 and December 31, 2008. For information on filing and downloading a claim form, see https://www.oppenheimerchampionsettlement.com//.

The period in question for the Core Bond Fund is for funds purchased between April 30, 2007 and December 31, 2008. For information on filing and downloading a claim form, see https://www.oppenheimercoresettlement.com//.

The deadline to submit claims for either fund is October 30, 2011.

Fighting for their First Amendment right of free speech, Denver-based Royal Crest Dairy filed suit in federal court this year claiming that the Fort Collins ban against door-to-door commercial solicitation violated its constitutional rights. The ban which spanned over 70 years had been in place since 1938 through its "Green River Ordinance", which was adopted to protect the safety and privacy of residents.

Effective May 27, 2011 as a result of this lawsuit, City Council passed an ordinance creating a permit-based system for commercial solicitation. Solicitation in Fort Collins will now be permitted only between 9:00 am and sunset. The new rules include required background checks for solicitors and mandatory city-issued identification badges.

Residents however may still be able to opt out of solicitation by signing up on the city's no solicitation list (which bans commercial solicitation only), or with posting a "No Trespassing" or "No Soliciting" sign on their property (which bans all commercial and non-commercial solicitation) and can be downloaded through the city's website.

As a result, Royal Crest is no longer pursuing its federal case since the city's new rules were put into place. It instead plans on going through the permit process and to educate its employees about the new rules.

Of course there are exceptions to any rule, and nonprofit, religious organizations and political campaigns are among those exceptions. Therefore Fort Collins will continue to enjoy along with the rest of us, the barrage of political calls, news ads, and door-to-door solicitation afforded to us each election period. But on the bright side, you'll still be able to obtain your Thin Mints from your local Girl Scout troop each year!

For more information about the new rules and to download and print the "no soliciting" sign that cites the solicitation ordinance number, go to: www.fcgov.com/solicitation.

Denver based Chipotle Mexican Grill lost portions of its appeal recently, affirming in part and denying in part the verdict in a lawsuit by a disabled man.

The Plaintiff, Mauizio Antoninetti, is a paraplegic who uses a wheelchair. Anoninetti visited two different California Chipotle restaurants on several occasions as both a customer and for purposes of his lawsuit. Anoninetti sued Chipotle for having counters too high preventing him from seeing the food preparers as they assembled the food, which is prepared assembly line style based on a customer's choices.

Prior to this litigation Chipotle had an unwritten policy which accommodated wheelchaired customers by showing them and allowing them to sample the available foods. However, in 2007 as a result of this litigation a formal written policy was established by Chipotle.

Initially, a federal judge ruled against Antoninetti due to his numerous lawsuits against dozens of other businesses for access violations, resulting in cash settlements. However the United States Court of Appeals overturned a portion of the judgment finding that prior to its written policy, Chipotle violated the Americans with Disabilities Act for failure to accommodate a customer's disability. The court further ruled that Antoninetti's prior litigation history cannot be used against him.

Although significantly less than Antoninettti sought, he had been awarded attorney's fees in the amount of $136,537.83 and damages of $5,000. These amounts were vacated by the Court of Appeals and remanded back to the district court for reconsideration.

The conclusion? The court affirmed in part, reversed in part, vacated in part and remanded -- sort of like when you order a little of this and a little of that when assembling your own Chipotle burrito.

Don't be downwind of the University of Colorado in Boulder. Since the spring semester of 2009, janitorial workers have been dealing with a sticky, ahem, stinky situation.

The university filed a lawsuit last week against Waxie Enterprises Inc. and Royal Paper Converting Inc. for defective toilet paper, which has caused the university more than $40,000 in major plumbing and sewer repairs. A total of 27 buildings on the Boulder campus were affected by the faulty toilet paper causing toilets to clog and overflow. As a result, the university was left with no other option but to saw-cut concrete and excavate sewer pipes that were so blocked up with offending toilet paper.

The complaint filed in Boulder District Court alleges breach of contract and negligence, and asks for an award of more than $40,000 plus costs.

One could presume that as with the story of Goldilocks and the Three Bears, the university might now be on the search for toilet paper that isn't too thin, isn't too tough, but is just right.

In view of recent news stories that Colorado police have cracked down on allegedly distracted drivers, it appears that some drivers are unaware of the restrictions and prohibitions against certain uses of mobile phones. Effective December 1, 2009, it became unlawful in Colorado for persons under 18 to talk on or listen to a mobile phone or to use such a phone for texting "or other similar forms of manual data entry or transmission" while operating a motor vehicle.

Certain emergency and public safety exceptions apply to a driver of any age. In addition, a person who holds a valid amateur radio operator license issued by the FCC may properly operate an amateur radio station. Persons 18 or older may talk on or listen to a mobile phone while driving, but may not use the phone for texting or similar uses.

A $50 fine is imposed for a first violation and a $100 fine is imposed for a second or subsequent violation. To constitute a violation, the police officer must actually see the person driving while making a prohibited call or using the phone in a restricted manner. The law does not speak to the issue of who has the burden in court of proving that the phone was used for an emergency or for a public safety use.

In any event, for your safety and the safety of others, you should exercise care and keep your primary focus on driving, even when making lawful use of the phone.

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