Colorado Business Litigation Lawyer Blog

Should a Washington resident who has a concealed weapons permit from Florida be allowed to openly carry a hand gun in Denver? That is the question currently presented to the United States Court of Appeals for the Tenth Circuit now that Plaintiff Gray Peterson was recently denied his motion for summary judgment in Denver District Court against Alvin LaCabe.

LaCabe is a former ex officio sheriff and Manager of Safety for the City and County of Denver who was in charge of issuing the licenses, denied Peterson's request and has since retired.

With a few exceptions, in Colorado it is unlawful to carry a concealed firearm without a license. Peterson challenged the residency requirement on three constitutional grounds. He alleged that Colorado's state statutes are unconstitutional regarding permits to carry concealed handguns since it requires the applicant be a resident of the state and disputed Denver's lack of carry license reciprocity. If Peterson was a resident of Florida where he currently holds a carry license, he would be able to carry a gun in Denver.

The Attorney General for the State of Colorado intervened and presented its own cross-motion for summary judgment asking the court to "uphold the constitutionality of Colorado's residency requirement for the issuance of concealed handgun permits".

After reviewing the motions before the court, Judge Miller found that the statute at issue did not violate the plaintiff's constitutional rights, dismissed his claims and ordered defendants to be reimbursed for their costs.

Peterson has appealed his case, which is now entitled Peterson v. Garcia, et al.

According to a report issued by the Federal Trade Commission (FTC), Colorado was among the most scammed states in 2009. In its latest annual report, the FTC concludes that Colorado residents ranked high in fraud and identity theft complaints.

Colorado ranked second only to Nevada in fraud and other complaints, with 412.4 complaints per 100,000 population (20,772 complaints), and ninth in identify theft complaints, with 95 complaints per 100,000 population (4,775 victims).

The report's data are based upon 1.3 million unverified complaints received by the FTC, the Consumer Sentinel Network the Internet Crime Complaint Center, Better Business Bureaus, Canada's PhoneBusters, the U.S. Postal Inspection Service, the Identity Theft Assistance Center, and the National Fraud Information Center, among others. Fraud complaints were 54%, 21% were identify theft complaints and 25% were other types of complaints.

No less than 40% of the fraud complaints by method of payment involved credit cards. And a whopping 48% involved contact with victims by internet and e-mail. Victims in the 40-59 age group amounted to one-half of all victims.

As the data amply demonstrate, if there is a way to defraud people, it has been done; if not, there are dishonest individuals and companies who are busily thinking of ways to do it. One way of providing yourself with at least some means of protection is to jealously safeguard personal information such as social security number (including your child's), passwords, middle name (often used as a password), date of birth, address, and telephone number. Always ask why any such information is being requested and refuse to part with if it the explanation doesn't satisfy you.

You have the right to obtain a free copy of your credit report at least every twelve months at annualcreditreport.com. Be sure to analyze the credit report carefully for accuracy and for unexplained inquiries or transactions. Report discrepancies promptly.

To view the full FTC report click here.

A bookkeeper at Impact on Education, a Boulder, Colorado-based charity, was arrested January 22, 2011, and charged with forgery and embezzlement of at least $160,000 of the charity’s funds. According to Boulder police, she forged more than 60 checks over several years. She remains in jail in lieu of $100,000 bail.

The charity’s website says Impact on Education (then The Foundation for Boulder Valley Schools) was founded in 1983. Its mission statement says it “leverages community resources to impact student learning, create opportunities, and build support of public education in the Boulder Valley School District.” The charity’s 2009 financial statement shows an income of about $1.5 million and net assets of almost $1 million.

A charity spokesperson, in speaking of the alleged embezzlement, says,” I could not understand it. I feel violated. It’s an unconscionable act.” The organization and independent auditors are carefully scrutinizing the records back to 2004, when the bookkeeper began working for the charity.

We would like to know if there were any internal or outside audits done on a regular basis and, if so, why the alleged shortages were not discovered. After all, that is one of the purposes of an audit. We can only speculate on what effect the alleged shortages will have on future contributions. Donors to nonprofit organizations have a right to expect that their gifts will be used for charitable purposes and not diverted to an employee. They also should expect that the organization will make reasonable efforts to see that the charity carries out the donors’ expectations.

We hope that Impact on Education will come forward with answers. The bookkeeper remains in jail in lieu of $100,000 bond. She is presumed innocent until and unless proven guilty through the legal process.

More fraud related postings:
"Colorado Man Indicted for Obtaining Fraudulent Mortgages," Colorado Business Litigation Lawyer Blog, posted 06/22/2010

"Colorado Victim Advocate Accused of Victimizing Victims," Colorado Business Litigation Lawyer Blog, posted 10/19/2010

The Globe and Mail, Canada’s fourth largest newspaper, has selected Denver, Colorado as the best city in the world for holding a business convention.

The selection panel consisted of airline chiefs, frequent fliers, meeting experts and business travel pros.

According to Zane Kerby, senior VP of the National Business Travel Association, Denver’s central U.S. location, cheap flights into DIA, and the proximity of most hotels to the Colorado Convention Center all were factors in choosing Denver. In addition, Denver’s travel taxes – a measure of accommodation, rental car and airport taxes – are among the lowest in the U.S

New York City was picked as Best for Business over all. Other categories and selections were: Pro-business (Sao Paolo, Brazil), Best Sightseeing (Istanbul), Most Exotic (Mumbai, India), Best Buzz (London), Freshest Downtown (Los Angeles), Best Comeback (New Orleans), City to Watch (Shenzhen, China) and Best Music Scene (Nashville).

Bottom line: Denver is among some pretty good company.

Continue reading "Denver Selected as World’s Best Convention Location" »

As another year draws to an end, we would like to extend our wishes for a healthy and prosperous new year to those who visit our website, either intentionally or by sheer accident, and to past, present and future clients.

This past year has been marked by economic distress experienced by far too many individuals and families, often due to unemployment and underemployment. A large percentage of our citizens are living at or below the poverty level, mostly because of conditions totally beyond their control.

Many small businesses have closed their doors, thus losing their hard-earned incomes and often their entire investment. Numerous large corporations have been forced to reorganize in order to help recover from or prevent huge economic loss and additional massive unemployment.

The causes of the severe downturn in our economy have been debated and analyzed to death and will no doubt continue to be disputed for years to come. At this point, do the political and other causes of the recession really matter to all those unfortunate persons who have been so adversely affected by the downward-spiraling economy?

This we know: our good countrymen and countrywomen have proven time and time again over our history that we have the resiliency and the determination to confront and to overcome adversity of all sorts. Economic conditions will improve. Jobs will be created. In the meantime, government and healthy industries must use their best efforts to ensure adequate assistance to those in immediate need. And those of us who are able should give generously to charity.

Hope is on the horizon; help is on the way; our great country will endure.

Bloomberg.com reports that a former officer and general counsel for GlaxoSmithKline (GSK), a London-based drug manufacturer, was indicted on November 8, 2010, for making false statements to the FDA and with obstructing an FDA investigation.

In 2002-2003, the FDA was investigating the promotion of Wellbutrin SR, an antidepressant drug, for possible uses not approved by the FDA. The attorney, Lauren Stevens, now residing in North Carolina, is charged with making false statements in a series of correspondence with the FDA and with withholding documents that could have proved that Wellbutrin SR was being promoted for uses such as weight loss, which had not been approved by the FDA.

Among other things, Stevens had sent letters to various doctors and had learned about the improper and illegal promotion of the drug. GSK had paid at least two doctors to give about 1,000 promotional talks to other doctors promoting the off-label (non-approved) use of the drugs. The indictment alleges that Stevens knew about the off-label promotions but concealed such materials from the FDA and made false statements concerning her knowledge of the off-label promotion activity.

If convicted on each of the six counts of the indictment, Stevens could be sentenced to a total jail term of up to sixty years. Stevens’ attorneys say that she is innocent of all charges and that she relied on the advice of a nationally prominent law firm that had expertise in working with the FDA.

We wait with bated breath to see whether or not any other officers of GSK will be charged or indicted. And of course, under our law, Stevens is presumed to be innocent of all charges.

Continue reading "GlaxoSmithKline in Spotlight Again" »

Magistrate Judge Boyd N. Boland of the U.S. District Court in Colorado ruled October 18, 2010 that certain documents in a lawsuit filed by Renee Huddleson, a Pueblo police officer, against the City of Pueblo cannot be sealed and protected from the public and the press.

The lawsuit was filed by officer Huddleson, alleging gender based discrimination and retaliation in connection with the city’s promotion to sergeant of three male officers instead of the plaintiff.

Huddleson filed a motion for summary judgment, requesting that the court rule in her favor on one or more of the issues in the case without a trial. The city claimed the motion itself and some of the exhibits filed in connection with the motion should be sealed by the court because they contain “confidential” and “private” information regarding Pueblo police officers who took the exam for promotion to sergeant, but who were not parties to the lawsuit.

Some of the information sought to be kept secret from the public includes test scores of the various officers who took the promotion test and the results of interviews with the candidates, along with their rankings.

The city noted that the parties to the case had agreed to the entry of a protective order to protect confidential information. The magistrate pointed out that such an agreement is not binding on the court and that there is a presumption of public access to civil court proceedings, with certain limitations. Among these exceptions are the protection of a party’s right to a fair trial and protection of materials containing purely personal information, and matters considered “scandalous, libelous, or highly personal or sensitive in nature.”

The magistrate judge ruled that the proper functioning of a municipal police department is a matter of substantial public, not private, concern. His ruling will become final unless the city files an objection with the district judge on or before November 1, in which event the documents will remain sealed pending an order by the district judge.

Continue reading "U.S. Magistrate Denies Pueblo’s Request for Secrecy in Pending Lawsuit" »

As reported in the Denver Post, the Tenth Circuit Court of Appeals in a September 10, 2010 opinion reversed a $926 million award made to an estimated 15,000 owners of property south of the former Rocky Flats nuclear weapons plant, a short distance northwest of Denver.

The award was made in a lawsuit filed in 1990 and tried in a four- month long trial in 2006. The plaintiffs showed that their property had been polluted by plutonium from the weapons plant. The appeals court remanded the case to the U.S. District Court in Colorado because of erroneous jury instructions. In effect, the court held that the plaintiffs were required to prove actual damage to their property caused by the plutonium contamination, rather than merely proving that their property values decreased.

Dow Chemical Co. and the former Rockwell International Corp. successively operated the plant for the Department of Energy from the 1950s until 1989, when the plant was closed for safety and environmental reasons.

The appellate court said, "on remand, Plaintiffs will be tasked with producing additional evidence that could support that a nuclear incident occurred, in the form of 'loss of or damage to property or loss of use of property.' "

This 46-page opinion [click here for link] starkly demonstrates that the strict letter of the law and plain old common sense sometimes do not go hand-in-hand. And we say this with the utmost of respect for the law, the courts and the judges.

Hypothetically, if you are a landowner whose property has been polluted by plutonium and you want to sell the land, would a prospective buyer who is aware of the pollution really care if the property has in fact been damaged, irrespective of the niceties of the law? Who should bear the cost of the diminished value of the property, even if it is caused by the buyer’s honest, yet perhaps speculative fear that the property has been damaged? Why should the innocent landowners have to wait 20 years and another unknown number of years for this litigation to end?

When this blog was first started, it was clearly understood that the subject was to be about legal issues of general interest. After all, why have a website promoting a Colorado-based law firm if the purpose is to entertain with tales of whimsy?

This law firm, which primarily represents victims of defective and unreasonably dangerous consumer products pretty much all over the U.S., depends mostly on word of mouth referrals from hopefully satisfied clients and their families and friends, and referrals from other lawyers. We don’t advertise in brochures, newspapers or magazines, or on radio, television and the like, or on billboards or buses or bus stop benches. Still, we don’t criticize lawyers who do.

But isn’t advertising on the web the same as any other form of self promotion? Not exactly. It seems to us to be just a little less irritating. And it’s a whole lot cheaper. But more importantly, it cuts out the middleman. Why should a person who is looking for a competent and experienced lawyer on a matter of importance have to rely on content that may be filtered through an advertising agency? We should be able to tell prospective clients about our experience, what our practice emphasizes, and what our track record is. We expect you to ask us questions and to ask around about us. We believe our national reputation will withstand your scrutiny.

That being said, stay tuned. Every so often, we’ll continue to inform about legal issues of interest to many of you. When we stray from that objective, we hope we can still say something interesting, or at least entertaining.

After all, don’t most of us already have enough serious matters to think about?

Continue reading "What is the Purpose of This Blog?" »

Yet another digression from my assigned duty of composing a Colorado Business blog dedicated to legal analysis.

A group of friends in New Mexico, Colorado’s good neighbor to the south, decided they would spice up an otherwise mundane drinking contest. They agreed --no doubt drunkenly-- that the person who drank the least would be set on fire.

The unfortunate loser drank only six beers, after which the non-losers (for obvious reasons, I hesitate to call them winners) promptly set the loser’s prosthetic leg on fire. Quite predictably, the fire soon spread to the man’s body. The winners, in a semi-lucid interval, decided to take the still burning man to the hospital. Instead, they left him at the side of the highway.

Dona Ana County deputy sheriffs found the man, naked and still burning. He told deputies that he removed his clothes because of the pain. The man was taken to a burn center for treatment. His condition is unknown.

The thing about wagers like this is that nobody thinks they will lose. And yet, a loser there surely will be.

Moral: if you’re drunk and with friends who are also drunk, don’t make wagers that will result in the contestants only getting drunker, especially if you are drunk enough to allow yourself to be set on fire. And to the person who drove the man to the location where he was found, DON’T DRINK AND DRIVE, even with a burning man in your car. The non-losers will no doubt face serious criminal charges.

A December study by the legal consultancy firm of Altman Weil showed that the recession notwithstanding, some large law firms are raising their fees to corporations by an average of four per cent in 2010. It is unknown whether or not Colorado law firms were included in the study.

The hourly rate charged by senior partners in these large firms has gone as high as $700-$900 per hour. A local survey by Boston-based BTI Consulting in October disclosed that 15% of Boston’s law firms are raising their rates for 2010, while the remainder is keeping their fees the same as last year.

As I have written before, a corporation that is cost- conscious and result- oriented should look at the advantages of hiring a plaintiff’s firm that charges on a contingent fee basis, whereby legal fees are based upon a percentage of the amount recovered in a lawsuit. If the lawsuit is lost, the lawyer receives no fee. Of course, this type of fee arrangement is normally confined to instances where the corporation is suing another person or legal entity for monetary damages. If the corporation is the defendant in the case (the one being sued), contingent fees are usually not appropriate, although some plaintiff’s firms will fashion a fee agreement whereby the lawyer is paid based upon results in the case.

A corporation or other entity that is considering filing a suit for money damages should feel free to contact this firm for additional information on the various types of legal fee agreements available.

Related postings:

Why You Need a Contingent Fee Lawyer for Your Colorado Business Litigation

Why You Need a Contingent Fee Lawyer for your Colorado Business Litigation, Part II

Denver station KUSA-TV reported January 11, 2010 that Krahl Construction has
halted work on a $1.5 million project at the main branch of the Denver Public Library as
the apparent result of a January 5 FBI search of Krahl's Chicago headquarters. Krahl also
has an office in Centennial, Colorado.

Krahl notified employees on January 8 that the company would be shutting down
the project. Neither the FBI nor Krahl disclosed why the raid took place, but an FBI
official said the search was part of an ongoing investigation and that the FBI was
"looking for evidence of a crime." No arrests were reported.

Krahl has been paid $430,000 for work already completed, but has been paid
nothing for unfinished work. New bids can be solicited after 10 days according to city
rules.

The company has an "A+" rating from the Chicago Better Business Bureau, and
reportedly does around $100 million a year in commercial construction work. It was
recently working as general contractor on an $81 million project at Riverside Medical
Center in Kankakee, IL, but hospital officials immediately hired another company to
finish the project.

Irrespective of your opinion about whether we should be at war in two countries or whether these wars are just, the brave men and women who have voluntarily put themselves in harm’s way nevertheless deserve our heartfelt thanks for their sacrifices and bravery.

These men and women unselfishly uprooted themselves from their homes, families and friends to volunteer in the military, not knowing whether they would be sent to Iraq or Afghanistan as front-line troops. And we should not forget those who serve as support personnel-- who ensure that those in the battle zones are properly supplied with intelligence information, weapons, food, clothing, medical care and treatment and other vital support.

This resilient country of ours has survived major world wars and many other military actions that became known as “conflicts” or “police actions” or similar euphemisms. Those who died or were wounded and possibly disfigured, who lost their eyesight or hearing, or who returned home with severe mental trauma from the horrors of battle, were no less brave simply because they were not involved in what we call “war.”

During this holiday season, therefore, let us all take time to remember these courageous troops and the sacrifices they and their families have made and are making. For as the author José Narosky said, “In war, there are no unwounded soldiers.”

At this time of year, we are all deluged with mail and telephone solicitations from all types of charities. We receive dozens of calendars, note pads, greeting cards, address stickers and other various and sundry “free gifts,” with the expectation that we will not accept the “free gift” without feeling in our hearts that we are at least morally bound to donate something to cover the cost of the gift and a little extra. The problem is that by receiving so many solicitations we may tend to become desensitized to the plight of those individuals and families who are so desperately in need of assistance, not just during the holidays, but 365 days a year.

Before I make a contribution to any charity, I first check the IRS website to determine whether or not the charitable organization is approved by the I.R.S. as a tax-exempt charity. After all, especially in this economy, tax deductibility may be one of the motivating factors for making a contribution. I also want to know what percentage of my donation goes to the paid fundraiser and what remaining percentage goes to charitable purpose. . The website www.charitynavigator.org will give you this information for a number of states, including Colorado. In addition, the American Institute of Philanthropy has a grading system of top-rated charities that spend 75% or more of their budgets on programs and $25 or less to raise $100 in public support. The organization has certain other relevant and important guidelines. This information is available at www.charitywatch.org.

The principals of some businesses, including ours, regularly make charitable contributions to the charity of choice of each of the other principals, in lieu of exchanging gifts at Christmas. In addition, each principal makes contributions to his or her own charity of choice. This tradition seems to work well and helps our firm fulfill what we consider as our civic and social obligation to give where it helps the most.

The Department of Homeland Security (DHS) and the Social Security Administration (SSA) have established an electronic system called E-Verify (formerly the Basic Pilot/Employment Eligibility Verification Program) to assist employers further in verifying the employment eligibility of all newly-hired employees. As most businesses with federal contracts know, effective September 8, 2009, compliance with the E-Verify system became mandatory. Executive Order 12989 mandates the electronic verification of all employees working on any federal contract. The amended Executive Order reinforces the policy that the federal government supports a legal workforce. In short, E-verify is mandatory if the prime contract for services or construction is more than $100,000 with a period of performance longer than 120 days. For subcontractors, the value of services or construction must exceed $3,000.

The E-verify system requires that employers run new hires, and existing employees hired after November 6, 1986, through the E-Verify system to determine the person’s eligibility to work in the U.S. E-Verify compares the information on the employees name, Social Security Number, date of birth, citizenship status, and any other non-citizen information provided.

As of October 12, 2009 there has already been close to 400,000 quires run through the system. E-Verify is an essential tool for employers committed to maintaining a legal workforce, and the number of registered employers is growing by over 1,200 per week.