Featured News http://cbaclelegalconnection.com/?p=36160 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/VqjkU_cbnF4/ Updates 18th Judicial District Arapahoe County court appointments judge appointments Hon. Robert C. Tobias to Retire from Arapahoe County Court On Friday, January 13, 2017, the Colorado State Judicial Branch announced the retirement of Hon. Robert C. Tobias from the Arapahoe County Court, effective May 31, 2017. Fri, 13 Jan 2017 16:32:55 Z http://cbaclelegalconnection.com/2017/01/hon-robert-c-tobias-retire-arapahoe-county-court/#respond Susan Hoyt <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2017/01/hon-robert-c-tobias-retire-arapahoe-county-court/tobias/" rel="attachment wp-att-36161"><img class="alignleft size-full wp-image-36161" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/01/Tobias..jpg" alt="" width="182" height="250" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/01/Tobias..jpg 182w, http://cbaclelegalconnection.com/wp-content/uploads/2017/01/Tobias.-109x150.jpg 109w" sizes="(max-width: 182px) 100vw, 182px" /></a>On Friday, January 13, 2017, the Colorado State Judicial Branch announced the retirement of Hon. Robert C. Tobias from the Arapahoe County Court, effective May 31, 2017.</p> <p>Judge Tobias was appointed to the Arapahoe County Court in 1995. His assignments as a judge include the felony division for arraignments and preliminary hearings and a general jurisdiction county court assignment. Prior to his appointment to the bench, Judge Tobias was in private practice, where he practiced criminal law, domestic relations, and landlord-tenant law. He is active in the community, frequently participating in &#8220;Our Courts&#8221; events and mock trials.</p> <p>Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of Arapahoe County and must have been admitted to practice law in Colorado for five years. Application forms are available on the State Judicial website or from the <em>ex officio</em> chair of the Eighteenth Judicial District Nominating Commission, Justice Richard Gabriel. Applications must be received by 4 p.m. on February 16, 2017, to be considered. Anyone wishing to nominate another must do so no later than February 9, 2017.</p> <p>For more information on the vacancy, <a href="https://www.courts.state.co.us/Careers/Judge_Opportunities/Announcements/JD18%20-%20JTobias%20vacancy%20FINAL.pdf" target="_blank">click here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/VqjkU_cbnF4" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/hon-robert-c-tobias-retire-arapahoe-county-court/feed/ 0 http://cbaclelegalconnection.com/2017/01/hon-robert-c-tobias-retire-arapahoe-county-court/ 2017-01-13 16:32 +00:00 2017-01-13 09:32 -07:00 http://cbaclelegalconnection.com/?p=36158 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/n-1Eq17Ut6g/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 1/12/2017 On Thursday, January 12, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions. Fri, 13 Jan 2017 16:18:34 Z http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1122017/#respond Susan Hoyt <div class="pf-content"><p>On Thursday, January 12, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-8078.pdf" target="_blank"><em>United States v. Pitt</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-8107.pdf" target="_blank"><em>United States v. Gomez-Olivas</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-1145.pdf" target="_blank"><em>Hermann v. Hartford Casualty Insurance Co.</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/n-1Eq17Ut6g" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1122017/feed/ 0 http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1122017/ 2017-01-13 16:18 +00:00 2017-01-13 09:18 -07:00 http://cbaclelegalconnection.com/?p=36155 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/TFyuUbAfXjU/ Case Law Colorado Court of Appeals Colorado Court of Appeals: Announcement Sheet, 1/12/2017 On Thursday, January 12, 2017, the Colorado Court of Appeals issued eight published opinions and 26 unpublished opinions. Thu, 12 Jan 2017 16:13:43 Z http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-announcement-sheet-1122017/#respond Susan Hoyt <div class="pf-content"><p>On Thursday, January 12, 2017, the Colorado Court of Appeals issued eight published opinions and 26 unpublished opinions.</p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/13CA2117-PD.pdf" target="_blank"><em>People v. Garcia</em></a></p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA0965-PD.pdf" target="_blank"><em>Denver Classroom Teachers Association v. School District No. 1</em></a></p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA1494-PD.pdf" target="_blank"><em>Begley v. Ireson</em></a></p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA1661%20&amp;%2016CA0148-PD.pdf" target="_blank"><em>In re Estate of Fritzler</em></a></p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA1663-PD.pdf" target="_blank"><em>People in Interest of L.B.</em></a></p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA2037-PD.pdf" target="_blank"><em>Smith v. State Farm Mutual Automobile Ins. Co.</em></a></p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA0167-PD.pdf" target="_blank"><em>Kovac v. Farmers Insurance Exchange</em></a></p> <p><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA0289-PD.pdf" target="_blank"><em>People in Interest of N.S.</em></a></p> <p>Summaries of these cases are forthcoming.</p> <p>Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is <a href="https://www.courts.state.co.us/Courts/Court_Of_Appeals/Case_Announcements/Files/2017/7EE00A01-12-17.pdf" target="_blank">available here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/TFyuUbAfXjU" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-announcement-sheet-1122017/feed/ 0 http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-announcement-sheet-1122017/ 2017-01-12 16:13 +00:00 2017-01-12 09:13 -07:00 http://cbaclelegalconnection.com/?p=36153 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/XkvXsHrne0o/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 1/11/2017 On Wednesday, January 11, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions. Thu, 12 Jan 2017 16:01:22 Z http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1112017/#respond Susan Hoyt <div class="pf-content"><p>On Wednesday, January 11, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-7015.pdf" target="_blank"><em>United States v. Bates</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-2092.pdf" target="_blank"><em>Browder v. Casaus</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-5133.pdf" target="_blank"><em>Slinkard v. McCollum</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-1146.pdf" target="_blank"><em>Coit v. Zavaras</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-2248.pdf" target="_blank"><em>United States v. Garcia-Melchor</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/XkvXsHrne0o" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1112017/feed/ 0 http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1112017/ 2017-01-12 16:01 +00:00 2017-01-12 09:01 -07:00 http://cbaclelegalconnection.com/?p=36149 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/vm9oTZY_7h8/ Updates 21st Judicial District court appointments judge appointments Mesa County Michael J. Grattan, III, Appointed to Mesa County Court On Monday, January 9, 2017, the Colorado State Judicial Branch announced the governor's appointment of Michael J. Grattan, III, to the Mesa County Court. Grattan will fill a vacancy created by the appointment of Hon. Gretchen Larsen to the district court bench in the Twenty-first Judicial District, effective January 1, 2017. Wed, 11 Jan 2017 16:26:22 Z http://cbaclelegalconnection.com/2017/01/michael-j-grattan-iii-appointed-mesa-county-court/#respond Susan Hoyt <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2017/01/michael-j-grattan-iii-appointed-mesa-county-court/grattan/" rel="attachment wp-att-36150"><img class="alignleft size-full wp-image-36150" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/01/Grattan.jpg" alt="" width="135" height="169" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/01/Grattan.jpg 135w, http://cbaclelegalconnection.com/wp-content/uploads/2017/01/Grattan-120x150.jpg 120w" sizes="(max-width: 135px) 100vw, 135px" /></a>On Monday, January 9, 2017, the Colorado State Judicial Branch announced the governor&#8217;s appointment of Michael J. Grattan, III, to the Mesa County Court. Grattan will fill a vacancy created by the appointment of Hon. Gretchen Larsen to the district court bench in the Twenty-first Judicial District, effective January 1, 2017.</p> <p>Grattan is currently a solo practitioner in Grand Junction at Michael J. Grattan, III, P.C., where he offers services in both transactional law and litigation, including in the areas of business law, employment law, intellectual property law, real estate law, and arbitration and mediation. He was previously an attorney with Younge &amp; Hockensmith, P.C., a sole practitioner and Deputy City Attorney in the City of Elkhart, Indiana, and an associate at Warrick &amp; Boyn in Elkhart. He received his law degree from the College of William and Mary Law School and his undergraduate degree from the University of Virginia at Charlottesville.</p> <p>For more information about the appointment, click here.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/vm9oTZY_7h8" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/michael-j-grattan-iii-appointed-mesa-county-court/feed/ 0 http://cbaclelegalconnection.com/2017/01/michael-j-grattan-iii-appointed-mesa-county-court/ 2017-01-11 16:26 +00:00 2017-01-11 09:26 -07:00 http://cbaclelegalconnection.com/?p=36125 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/fCtdYWIEXkA/ Case Law Colorado Supreme Court Colorado Supreme Court: Announcement Sheet, 1/9/2017 On Monday, January 9, 2017, the Colorado Supreme Court issued one published opinion. Wed, 11 Jan 2017 16:18:46 Z http://cbaclelegalconnection.com/2017/01/colorado-supreme-court-announcement-sheet-192017/#respond Susan Hoyt <div class="pf-content"><p>On Monday, January 9, 2017, the Colorado Supreme Court issued one published opinion.</p> <p><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2016/16SA199.pdf" target="_blank"><em>In re Marriage of Gromicko</em></a></p> <p>The summary of this case is forthcoming.</p> <p>Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is <a href="https://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2017/CEF809JAN.9.17.pdf" target="_blank">available here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/fCtdYWIEXkA" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/colorado-supreme-court-announcement-sheet-192017/feed/ 0 http://cbaclelegalconnection.com/2017/01/colorado-supreme-court-announcement-sheet-192017/ 2017-01-11 16:18 +00:00 2017-01-11 09:18 -07:00 http://cbaclelegalconnection.com/?p=36134 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/ibYDuPE5zCs/ Case Law business law Colorado Supreme Court discovery dissolution of marriage domestic relations law family law litigation Colorado Supreme Court: District Court Must Take Active Role in Managing Discovery Request of Non-Party in Dissolution Proceeding The Colorado Supreme Court issued its opinion in <em>In re Marriage of Gromicko</em> on Monday, January 9, 2017. Wed, 11 Jan 2017 16:18:10 Z http://cbaclelegalconnection.com/2017/01/colorado-supreme-court-district-court-must-take-active-role-managing-discovery-request-non-party-dissolution-proceeding/#respond Susan Hoyt <div class="pf-content"><p>The Colorado Supreme Court issued its opinion in <em><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2016/16SA199.pdf" target="_blank">In re Marriage of Gromicko</a></em> on Monday, January 9, 2017.</p> <p>In 2015, Lisa Dawn Gromicko (Wife) filed a petition for dissolution of marriage, naming Nickifor Nicholas Gromicko (Husband) as respondent. The petition requested equitable division of marital assets and debts. In order to evaluate Husband&#8217;s income, Wife requested records from Husband&#8217;s employer, InterNACHI, a nonprofit organized as a § 501(c)(6) trade association. Although Husband initially stated he would not object to the production of certain records, he did not provide them, and Wife requested a status conference. Husband&#8217;s counsel, who was also InterNACHI&#8217;s general counsel, filed a motion in response to Wife&#8217;s discovery request, arguing (1) the only InterNACHI relevant to the divorce proceeding were those reflecting Husband&#8217;s compensation and expense reimbursements; (2) the court could not consider InterNACHI a marital asset because Wife did not allege grounds in her dissolution petition to pierce the corporate veil; and (3) the court could authorize Wife to serve a subpoena <em>duces tecum</em> on InterNACHI to produce the relevant documents. The court held the status conference but did not rule on the discovery issues.</p> <p>Wife then served a subpoena <em>duces tecum</em> on InterNACHI requesting (1) Husband’s employment and compensation; (2) the employment by InterNACHI of any person related to Husband; (3) InterNACHI’s bookkeeping, accounting, and tax return or Form 990 preparation; and (4) InterNACHI’s conflict-of-interest policy. InterNACHI moved to quash the subpoena, arguing that many of the requested documents were privileged, confidential, and irrelevant to the dissolution proceeding. InterNACHI also renewed its motion that Wife did not allege any grounds sufficient to claim that InterNACHI was Husband&#8217;s alter ego and pierce the corporate veil. The court denied InterNACHI&#8217;s motion to quash, and it filed a C.A.R. 21 interlocutory appeal.</p> <p>On appeal, InterNACHI argued that the district court abused its discretion in refusing to quash or modify Wife’s subpoena because (1) Wife was required to, but did not, plead in her dissolution petition a claim for piercing InterNACHI’s corporate veil and (2) certain of Wife’s discovery requests were irrelevant to her veil-piercing claim and thus were outside the scope of discovery permitted by C.R.C.P. 26. The court first analyzed the discovery requirements in domestic relations cases, which are governed by C.R.C.P. 16.2, and found that Wife was not required to plead in her dissolution petition a claim seeking to pierce InterNACHI&#8217;s corporate veil. However, the supreme court concluded the district court did not use the correct standard in evaluating InterNACHI&#8217;s objection to the requested discovery.</p> <p>The court compared C.R.C.P. 16.2 to the discovery requirements in civil cases, governed by C.R.C.P. 26. The court found the two rules analogous. The court found that its holding in <em>DCP Midstream, LP v. Anadarko Petroleum Corp.</em>, 2013 CO 36, applied in this case and required the district court to take an active role in managing discovery. The supreme court found that the district court should initially have granted Wife only such discovery as would reasonably have been necessary to allow her to attempt to establish the existence of the alter ego relationship that she claimed. The supreme court noted that if, after receiving limited discovery, Wife could prove that InterNACHI was Husband&#8217;s alter ego, she may then be entitled to receive the information in her initial request, but the court must actively monitor discovery pursuant to <em>DCP Midstream</em>.</p> <p>The supreme court made its rule to show cause absolute and returned the case to the district court for further proceedings.</p> <div class="page" title="Page 9"></div> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/ibYDuPE5zCs" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/colorado-supreme-court-district-court-must-take-active-role-managing-discovery-request-non-party-dissolution-proceeding/feed/ 0 http://cbaclelegalconnection.com/2017/01/colorado-supreme-court-district-court-must-take-active-role-managing-discovery-request-non-party-dissolution-proceeding/ 2017-01-11 16:18 +00:00 2017-01-11 09:18 -07:00 http://cbaclelegalconnection.com/?p=36145 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/Ve89HdzvgD0/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 1/10/2017 On Tuesday, January 10, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions. Wed, 11 Jan 2017 16:16:53 Z http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1102017/#respond Susan Hoyt <div class="pf-content"><p>On Tuesday, January 10, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-5147.pdf" target="_blank"><em>United States v. Marshall</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-3032.pdf" target="_blank"><em>United States v. Ford</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-4120.pdf" target="_blank"><em>Fadel v. Farmington City</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/Ve89HdzvgD0" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1102017/feed/ 0 http://cbaclelegalconnection.com/2017/01/tenth-circuit-unpublished-opinions-1102017/ 2017-01-11 16:16 +00:00 2017-01-11 09:16 -07:00 http://cbaclelegalconnection.com/?p=36142 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/OT1HengI53Q/ Case Law appellate laws bond Colorado Court of Appeals dissolution of marriage domestic relations law family law stay Colorado Court of Appeals: Posting Bond is Necessary but Insufficient Condition to Stay Dissolution Proceedings The Colorado Court of Appeals issued its opinion in <em>In re Marriage of Finn</em> on Thursday, December 30, 2016. Tue, 10 Jan 2017 16:22:13 Z http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-posting-bond-necessary-insufficient-condition-stay-dissolution-proceedings/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2016/16CA0959-PD.pdf" target="_blank">In re Marriage of Finn</a></em> on Thursday, December 30, 2016.</p> <blockquote><p><em>Post-Dissolution Marriage Proceeding—Request for Stay—</em>Romero v. City of Fountain.</p> <p>Husband and wife had entered into a marital agreement. Wife later filed for dissolution of the marriage, and the trial court subsequently issued a detailed order directing husband to make certain payments to wife within 20 days. Husband filed a motion for post-trial relief pursuant to C.R.C.P. 59 and 60, which was denied. Husband appealed and also filed a motion for stay with the trial court and requested approval of his supersedeas bond; both requests were denied.</p> <p>Pursuant to C.A.R. 8, husband sought a stay of the trial court’s orders requiring him to pay wife certain sums of money and to return her artwork and other personal property. Husband presented a redacted copy of a cashier’s check in the amount necessary for a supersedeas bond and represented that his counsel would deposit the check if his motion were granted.</p> <p>Stays pending appeal are controlled by C.A.R. 8(a). <em>Romero v. City of Fountain</em> adopted a four-part test for determining whether a stay should be issued under CAR 8: (1) whether the moving party has made a strong showing that it is likely to prevail on the merits, (2) whether the moving party will suffer irreparable harm if a stay is not granted, (3) whether other interested parties would be harmed by granting the stay, and (4) whether the public interest will be harmed by granting the stay. <em>Romero</em> involved a motion to stay an order denying an injunction. Husband argued that <em>Romero</em> does not apply here.</p> <p>A stay is an exercise of judicial discretion and not a matter of right. The Colorado Court of Appeals first concluded that posting a supersedeas bond alone is insufficient to mandate a stay in a family law case. As to both the monetary and nonmonetary orders, the court then determined that a court considering a stay of that part of a judgment involving marital and separate property must consider the first three <em>Romero</em> factors; the fourth factor, harm to the public interest, is ordinarily not relevant in the context of a dissolution of marriage. The court found that (1) husband had not made even a cursory showing as to why his appeal was likely to succeed on the merits; (2) husband’s contention that he faces “clear” irreparable harm if a stay is not granted was unpersuasive; and (3) wife would be harmed by the issuance of a stay, because she would be denied benefits she negotiated in the marital agreement.</p> <p>The motion for stay was denied.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-The-Colorado-Lawyer-em" target="_blank">The Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/OT1HengI53Q" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-posting-bond-necessary-insufficient-condition-stay-dissolution-proceedings/feed/ 0 http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-posting-bond-necessary-insufficient-condition-stay-dissolution-proceedings/ 2017-01-10 16:22 +00:00 2017-01-10 09:22 -07:00 http://cbaclelegalconnection.com/?p=36140 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/Y9gJcX96EEc/ Case Law business law Colorado Court of Appeals First Amendment licensure Securities Commissioner securities law Colorado Court of Appeals: “Newsletter Exclusion” Did Not Apply to Unlicensed Securities Advisor The Colorado Court of Appeals issued its opinion in <em>Mandel v. Rome</em> on Thursday, December 30, 2016. Tue, 10 Jan 2017 16:15:59 Z http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-newsletter-exclusion-not-apply-unlicensed-securities-advisor/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2016/15CA2033-PD.pdf" target="_blank">Mandel v. Rome</a></em> on Thursday, December 30, 2016.</p> <blockquote><p><em>Colorado Securities Act—Licensure—Summary Judgment—Investment Adviser—First Amendment—Restitution—Permanent Injunction.</em></p> <p>Defendants Mandel and Wall Street Radio, Inc. hosted a radio show devoted to security investments, Wall Street Radio (WSR). They also offered through a website a variety of investment related services under two plans. The Master Membership Plan, with a $500 annual fee, provided newsletters, seminars, and the opportunity to email or call defendant Mandel twice a week with questions about specific stocks (crystal ball readings). The Lead Trader Membership Plan, under which subscribers paid between $1000 and $2000 annually, provided the same services as Master Membership and also offered the opportunity to mimic Mandel’s own security trades through an investment vehicle known as auto-trading. In auto-trading, trades are automatically made that mimic the lead trader’s trades without the need for approval. Followers are often not aware of the trades until after they have occurred.</p> <p>The auto-trading was done through a company called Ditto Trade, in which Mandel owned an interest. Ditto Trade requires its lead traders to attest that they are either registered investment advisers or exempt from registration. Neither Mandel nor WSR were licensed in Colorado as investment advisers or investment adviser representatives. In 2008, Mandel had applied for a license, but his application was denied in an administrative action. A stipulated consent order denying the application precluded him from reapplying for 10 years and barred him from acting as a solicitor or otherwise associating with any Colorado licensed investment adviser or “federally covered” adviser. Mandel attested to operating within an exemption.</p> <p>This action was commenced by the Securities Commissioner of Colorado, Rome, against Mandel and WSR, alleging they had acted as unlicensed investment advisers or investment adviser representatives under the Colorado Securities Act (CSA). Defendants claimed that pursuant to the CRS § 11-51-201(9.5)(b)(III) “newsletter exclusion” they were exempt from licensure. The trial court granted summary judgment against defendants. It entered a permanent injunction and directed them to pay $80,000 in restitution ($1000 for each auto-trading subscriber).</p> <p>On appeal, defendants argued that the trial court erroneously entered summary judgment because a genuine issue of material fact existed as to whether they acted as investment advisers or investment adviser representatives. The Colorado Court of Appeals found that the Commissioner presented undisputed facts sufficient to resolve the case. It therefore turned to whether judgment was appropriate as a matter of law.</p> <p>There was no dispute to the evidence presented by the Commissioner that defendants met the basic definition of investment adviser or investment adviser representative. To avoid the licensing requirement, defendants had to meet the “newsletter exclusion” from the definition of investment adviser, which required their services to qualify as bona fide publications or newsletters with a regular circulation. The court found that the lead trader services were not “publications” generally disseminated to subscribers. It rejected defendants’ argument that because they disseminated a newsletter, all of their other activities fell within the exclusion. Also, the lead trader service was not bona fide because it did not consist of disinterested commentary or analysis; instead, each follower’s investment decision was directly linked to Mandel’s investment account. Thus Mandel could personally benefit from the trades. Finally, the service was not “regular.” It did not follow a routine schedule but occurred when Mandel decided to make trades. Similarly, the crystal ball readings were not regular and addressed specific investment situations. Because defendants provided both services for compensation without a license they violated the CSA.</p> <p>Defendants further argued that the summary judgment was inappropriate because the Commissioner failed to controvert their affirmative defense that the First Amendment of the federal constitution and Colorado Constitution art. II, § 10 barred the enforcement action. Because the services provided were sufficiently personal to treat defendants as investment advisors or investment representatives, requiring them to obtain a license as a condition of providing these services is constitutional.</p> <p>Defendants also argued that the trial court erred in imposing restitution, contending that only damages could be awarded under the CSA. The court did not need to address this argument because it held that the record and the law support the award under a common law restitution theory.</p> <p>Lastly, defendants challenged both parts of the permanent injunction. Defendants argued that the first part of the injunction improperly enjoins them from engaging in lawful activity. Defendants contended that the court abused its discretion and exceeded its statutory authority by enjoining them from “associating in any capacity” with securities professionals engaged in business in Colorado. The court found that the trial court had statutory authority to enjoin defendants from associating with securities professionals to ensure compliance with the CSA. However, the court found that the first part of the injunction was overly broad and subject to different interpretations.</p> <p>Defendants argued that the second part of the injunction is simply an edict to obey the law and is thus overly broad and vague. The court agreed.</p> <p>The summary judgment and restitution orders were affirmed. The injunction was vacated in part and reversed in part, and the case was remanded to the trial court for further proceedings.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-The-Colorado-Lawyer-em" target="_blank">The Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/Y9gJcX96EEc" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-newsletter-exclusion-not-apply-unlicensed-securities-advisor/feed/ 0 http://cbaclelegalconnection.com/2017/01/colorado-court-appeals-newsletter-exclusion-not-apply-unlicensed-securities-advisor/ 2017-01-10 16:15 +00:00 2017-01-10 09:15 -07:00