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PG12 BEST Law Firms 2 | LAW WEEK COLORADO INSIDE SCOOP LAW WEEK COLORADO 03/LEGAL LOWDOWN 04/EQUAL PAY UPDATE BIG DEALS Q3* AN AWARD-WINNING Colorado’s Equal Pay for Equal NOVEMBER 30 04/CORPORATE COUNSEL INSIGHT INDEPENDENT NEWSPAPER Work Act will go into effect in January, and earlier this OWNER Circuit Media, LLC 05/BUSINESS OF LAW COLORADO 200* PUBLISHER Rebecca A. Askew, Esq. month, the Colorado Depart- DECEMBER 7 06/IN THE COMMUNITY ment of Labor and Employ- | EDITORIAL | ment adopted its final rules TRENDS FOR 2021 Tony Flesor, Managing Editor 08/IN THE COURTS for job posting requirements. Jessica Folker, Reporter features DECEMBER 14 contents 09/IN THE NEWS Hank Lacey, Reporter 05/LAWBANK EXPANDS Avery Martinez, Reporter MANAGING PARTNER /BEST LAW FIRMS Colorado-based LawBank up coming Jess Brovsky-Eaker, Assignment Editor 12 recently announced what it ROUNDTABLE 15/CORONAVIRUS UPDATE plans to be the first step in DECEMBER 21 | MARKETING | a national expansion. The *These features rely on information Nick Eckerman, Account Executive 16/AROUND THE NATION submitted through surveys. All current Lisa McKell, Account Executive attorney-focused coworking surveys are online at LawWeekColorado.com Jacob Hurley, Account Executive 18/COURT OPINIONS space is opening a Las Vegas space through partnerships | DESIGN STUDIO | 19/THIS WEEK IN HISTORY with law firms. from the editor Joe Horton, Art Director Shelby Lueckenotto, Senior Graphic Designer 20/ENDNOTES 10/GROSS RESERVATIONS The Best Law Firms marks Hannah Blatter, Multimedia Specialist Denver might be hitting a the end of months of attorney 21/CONTINUED... Zack Fifer, Graphic Designer speed bump in its pursuit of rankings. Over the course of the Karen Hill, Graphic Designer a Gross Reservoir expansion. summer, we cover Super Law- contact us While Denver Water says yers, Chambers USA and Best it needs the expansion to Lawyers. We recently published LAW WEEK COLORADO ERRORS our own Barrister’s Best issue, (USPS 024757, ISSN 1942–7964), founded 2002, Please call 303-292-1212 meet the growing thirst of its is published weekly. Periodicals are paid at to report a correction or clarification. growing population, Boulder which wraps up our readers’ re- Denver, Colo. Entire contents copyrighted. sponses to the question “Who NEWS RELEASES County Commissioners and SUBSCRIPTIONS Email: [email protected] environmental groups are Are Colorado’s Best?” In early $285/year. Single copies are December, we’ll provide our OFFICE weighing the impacts of the $6 plus $1 postage and handling. Colorado 200 list, which ranks Email [email protected] 560 Cherokee Street, Denver, CO 80204 project against the demand. Colorado’s law firms according POSTMASTER ADVERTISING to headcount. And by January, Ads are taken at 303–292–1212 Send address changes to: Law Week Colorado the major rankings will have or visit us at www.lawweekcolorado.com PO Box 9404, Denver, CO 80209 begun their work all over again. LETTERS & ARTICLES Law Week Colorado retains copyrights on ON THE COVER It all makes for a busy year. submitted material. Design by Joe Horton Email: [email protected]

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CRIMINAL (303) DUI-5280 | DUI5280.com DEFENSE 1315 S. Clayton St. Suite 100 Denver, CO 80246 Phone (303)-991-5896 Fax (303)-991-5897 NOVEMBER 23, 2020 | 3 LEGAL LOWDOWN Caplan & Earnest Expands With Family Law Group The firm has added five attorneys in creation of the new practice group

STAFF REPORT Ehlert have joined the firm to support commercial and bankruptcy litigation. real estate, financing, mergers and acqui- LAW WEEK COLORADO the practice group. He represents public and private enti- sitions, general business and tax law. “For more than 50 years, Caplan ties in matters including avoidance ac- He is a member of the Colorado Bar Caplan & Earnest announced & Earnest has cultivated a reputa- tions, business torts and class actions Association Tax Law Section executive Wednesday that it has added five -at tion for having innovative attorneys among others. council and a financial advisor with the torneys and three paralegals through who bring a creative, problem-solv- Prior to joining Moye White, Akers J. Reuben Clark Law Society. the creation of a family law and divorce ing approach to client matters,” said worked as an associate in the litigation Schmidt received an LL.M. in taxa- practice group. Jim Branum, managing member. group of an AmLaw tion from the University of Florida Levin All five attorneys joined Caplan & “We’re excited to have these five -ex 200 firm. Akers also served as a College of Law and a law degree from Earnest from the Boulder/Vail firm Ste- perienced attorneys join our firm and communications officer in the United the University of South Dakota Knudson vens Littman Biddison Tharp & Wein- bring that level of innovation and at- States Air Force. School of Law. Schmidt also received a berg. Andrew Littman, who has 40 tention to our new family/divorce law Akers received a legal degree from bachelor’s degree from Brigham Young years of family law and divorce experi- practice. Their knowledge, experience the Notre Dame Law School. He also University and a master’s degree from ence in Boulder and Vail, leads the new and professionalism will greatly ben- received an MBA from Auburn Univer- Colorado State University. practice group. In addition to Littman, efit our clients throughout Colorado.” sity and his undergraduate degree in Lewis Roca Rothgerber Christie the attorneys who have joined Caplan international studies from the Univer- announced Nov. 11 Tyler Owen has & Earnest are Chris Tomchuck, Rohn ASSOCIATE WATCH sity of Iowa. joined the firm’s Denver office as an as- Robbins, Craig Weinberg and Del- Moye White announced Patrick Coan Payton & Payne announced sociate in the litigation practice group. phine Farr. Akers has joined the firm as an associ- Tuesday that Christopher Schmidt has Owen’s practice focuses on general Additionally, paralegals Tia Ingle- ate in the trial section. joined the firm. Schmidt’s practice focuses field, Patricia Celich and Elizabeth Akers focuses primarily on complex on all areas of commercial and residential CONTINUED ON PAGE 21… 4 | LAW WEEK COLORADO CORPORATE COUNSEL INSIGHT Labor Department Finalizes Equal Pay Transparency Rules Final rules clarify points of confusion in draft rules, but a few questions remain

JESSICA FOLKER graphic reach of the regulations. Jackson Lewis principal Laura Mitch- tual type position,” she said. LAW WEEK COLORADO In the final rules, CDLE largely ell said that while the division “definite- EPEWA requires all employees to be backed away from a controversial pro- ly made some progress and made some notified of promotional opportunities at The Colorado Department of Labor posal that would have required multi- improvements” when finalizing the rule, the same time, but attorneys had noted and Employment on Nov. 10 adopted fi- state employers with at least one Col- “there still is the notion that if employ- the proposed rules’ failure to define “pro- nal rules relating to job posting require- orado employee to post promotional ers have an employee in Colorado and motional opportunity.” The final version ments under the Equal Pay for Equal opportunities and compensation infor- they have a job that can be performed clarifies that a promotional opportunity Work Act that go into effect in January. mation for jobs to be performed outside anywhere in the country, they have to exists when an employer has or antici- EPEWA requires Colorado employ- of Colorado. include compensation and benefits in pates a vacancy in an existing or new po- ers to notify employees of promotion- The final version states that employ- that job posting.” sition that “could be considered a promo- al opportunities and to include salary ees outside of Colorado don’t need to be “There still is the affirmative duty tion” for one or more employees in terms and benefits information in job - post notified of promotional opportunities and the burden on the employers to add of compensation, benefits, status, duties ings. A draft version of the rules pub- and that employers don’t need to list that pay information for jobs that are or access to further advancement. lished in October left many employers salary and benefits information on post- outside of Colorado if… the company is The final rules also carve out three and attorneys confused and concerned ings for jobs to be performed entirely open to someone in Colorado perform- about the proposed scope and geo- outside of Colorado. ing that job because it is a remote or vir- CONTINUED ON PAGE 21…

Despite popular belief, lawyers do have lives outside the o ce. OUTSIDE Colorado’s legal professionals can be found performing ballet on stage, building a 1,000-horsepower Mustang THE in a mechanic’s garage, or even skiing across the Antarctic. Law Week is on the lookout for more unique LAW stories happening, “Outside the Law.”

Let us know of any attorneys with any interesting non-legal hobbies at [email protected] NOVEMBER 23, 2020 | 5 BUSINESS OF LAW LawBank Las Vegas: Colorado’s Legal Coworking Space Expands West

Coworking space moves into Nevada, eyes national expansion

AVERY MARTINEZ By sharing the office space, attorneys LAW WEEK COLORADO have access to others within the space and for co-counsel opportunities. The LawBank, a Denver-based coworking company currently has three locations space, has opened a new location in Las in the Denver area, according to the Vegas, with immediately available com- LawBank website. mercial space for solo practitioners and LawBank started its business model small law firms in downtown Las Vegas. with the BigLaw firm Fennemore Craig “LawBank looks forward to con- in Denver which had unused office tributing to the Nevada legal commu- space, Deifik said. LawBank was able to nity and providing support for its inde- fill the unused space with its members, pendent law firms,” said cofounder of eventually reaching 100% occupancy. LawBank and real estate attorney Jay “They were so happy with the way Kamlet. things turned out,” Deifik said. When Kamlet said tenants in the new space Fennemore Craig was contemplating will have access to a professional office a merger with another firm in Las Ve- space. The building is located across the gas, it approached LawBank about as- street from the bankruptcy court, state sisting the firm with its unused space in Las Vegas. Deifik said that LawBank wanted to expand beyond the offices already in the “LawBank has opened its doors in Las Vegas. Working with Fennemore Craig, “LawBank looks Denver metro area, and Las Vegas was the new space caters to solos and small firms to fill office space./ COURTESY “the perfect opportunity.” He added that OF LAWBANK forward to Las Vegas would be the first test case of contributing to the expansion model, which LawBank hopes to continue to expand, and cur- the Nevada legal rent projections are set for six to eight metropolitan areas around the country, community and with two or three locations. That plan is based on finding the right partnerships, providing support Deifik said. Kamlet has moved to Las Vegas for for its independent the month of November to make con- law firms.” nections within its legal community. While Kamlet and Deifik both have roots in Denver — Kamlet in the legal world — LawBank Cofounder Jay Kamlet and Deifik in real estate development — when entering the new Las Vegas mar- ket, they’ve been searching for someone courts and blocks away from the Neva- to run the LawBank office in their new da Supreme Court building, according to location equally steeped in local roots. Kamlet. They are speaking with the Universi- Kamlet said the key to LawBank is ty of Nevada Las Vegas, the Clark County the “plug and play” nature, where a firm Bar Association, local bar associations, or attorney could come to Las Vegas and affinity bars and others in order to build immediately have an office to use. While connections to fill out the LawBank the design of the office is to allow imme- space, Kamlet said. diate use, Kamlet warned that Colorado Kamlet said he has also been in talks attorneys would not have reciprocity to with the Nevada Bar Association about practice in Nevada. LawBank’s creation of a solo and firm Jordan Deifik, cofounder of LawBank mentorship circle. In Colorado, this and CEO of Bastion a consulting and ad- came from collaborations with the Solo visory firm of real estate development, and Small Firm Bar Association and said the Las Vegas move is just part of Colorado Attorney Mentorship Pro- the eventual goal of the company gain- gram or CAMP. ing a national presence with locations Similarly, other early stages pro- around the country. grams are in the works for solos and LawBank’s model involves working small firms, and Kamlet said LawBank with a larger firm to turn their unused representatives have been asked to office space into an area for LawBank’s speak about their insight from involve- solo and small firm members to use as ment with different groups in Colorado. • Located close to court areas, LawBank’s new office in Nevada could be the first a physical location, Deifik explained. — Avery Martinez, [email protected] of many to come. / Courtesy Fennemore Craig 6 | LAW WEEK COLORADO IN THE COMMUNITY Public-Private Partnerships Provide Creative Solutions to Colorado COVID Crisis Silicon Flatiron’s panel involved with innovative COVID responses share insight on economic plans, rural areas and stark situation

AVERY MARTINEZ fied several immediate public-private funding as well. These pseudo-grants to of the concerns that Peña and the CESG LAW WEEK COLORADO partnership needs arising from COVID, small businesses gave an opportunity had identified were issues for rural Col- the first dealing with health care chal- to businesses that never had a chance orado — ranging from internet access The Silicon Flatirons Center gath- lenges at the state level and financial for getting help from the PPP program to mental health. But despite these ered a panel of business leaders, state assistance for companies and workers. at the national level, Peña said. concerns, Delaney Keating, managing officials and private sector workers for Wendy Lea, CEO of Energize Col- But in order to take creative ideas, director of Startup Colorado, explained its annual Entrepreneurship Initiative orado, explained that her group has such as a gap fund, from idea to action, that a surprising aspect of community Conference. The panel discussed how provided services to small business- collaboration between different groups existed across the state — even with public-private partnerships can be used es and other companies in a vari- must take place. economic and behavioral differences in to solve problems that may be beyond ety of ways ranging from advising to For a public-private partnership to response to the pandemic. the scope of government alone. This funding and providing mental health achieve its goals its leaders must under- “It’s not always that rural is un- year, the panel had plenty to discuss as resources, all in response to the pan- stand each group’s abilities, what they derserved or under-resourced — public-private partnerships have been demic. Some kind of model for assis- do well and how to bring them togeth- sometimes it’s just disconnected,” used to respond to an array of issues re- tance with public-private partner- er, explained David Padrino, chief re- Keating said. lated to the pandemic. ships was needed in order to deploy covery officer at the Colorado Attorney Keating’s group predates the pan- Colorado Attorney General Phil any help, she said. The original plan General’s Office, who leads the strategy demic, and Startup Colorado has been Weiser began the event by noting that was to launch a statewide volunteer and implementation for initiatives for working in public-private partnership the government has continued to do fashion and is designed to support ru- things the way they have always been ral area partnerships. If there was a way done. “Getting government to change is of making a coherent playing field on not easy,” Weiser said, adding that cre- behalf of the resources already there, ative problem solving through entre- Startup Colorado could better serve. preneurship are needed — desperately “Public-private Startup Colorado is structured to and now — for all sorts of challenges. foster “unique” partnerships and is “These are challenges that we share as looking at networks already available the people of Colorado, and the govern- on the ground — the point is to build ment can’t do it alone.” partnerships can trust and collaboration. For rural areas, At best, citizens, entrepreneurs, the industry-specific impacts of COVID government, community groups and parallel some at a state level. others work together in partnership solve real problems Progress can only happen at the around improving situations, Weiser speed of the relationships that guide said. He added that we currently live in us, Keating said. Throughout the state, a time where an incredible amount of collaboration in rural places between cynicism exists about the role of key in- that exist today.” Startup Colorado and the Office of Eco- stitutions and government, a sentiment nomic Development are designed to that could be shared across many dif- bookend strategies on the ground. ferent sectors. Some communities that Startup The current pandemic and its strains — Federico Peña, Chair of the Governor’s Council on Economic Colorado worried might have “crisis on the state government have triggered Stabilization and Growth fatigue” from a mixture of natural in- some innovation through public-pri- cidents like avalanches, droughts, wild- vate partnerships, such as volunteer fires, COVID and other impacts — the networks or mental health support. program, and now Energize Colorado COVID-19 recovery. attitude has been, “We’re fine, we’ve got “Public-private partnerships can has grown to hundreds of volunteers. “Having been inside the govern- this,” Keating said. solve real problems that exist today,” When running a public-private part- ment, I know we can bring scale, and of- There is a lot of concern for tourist said Federico Peña, chair of the Gov- nership, Lea said she struggled with the ten an existing infrastructure set up to areas in an ongoing capacity, she added, ernor’s Council on Economic Stabili- idea that everyone must succeed and serve people — a lot of times, we don’t there’s an interesting winter ahead. zation and Growth, a group of industry everything must be interdependent. have the speed to innovate, the creativ- However, factors for 2020 in the leaders created in March to bring ex- Both private sector and public sector ity with funding and the ability to be economy mark several downward perts from the private sector, workers actions must support each other and be laser-focused on outcomes,” Padrino trends. organizations and public sector lead- interconnected to help produce results said. Meanwhile, the private sector can Peña quoted figures provided to him ers together, developing strategies in- across various needs, she explained add capital and a sort of no fear attitude from leading economists in the state. In creasing work and moving Colorado’s Those three keys have resulted in a of getting things done, he added. Colorado, and the country, the econo- economy forward. Starting with seven “very special opportunity” in this time The gap fund was just one of several my peaked in February. Roughly 128 people, it has grown to more than 200 to deliver high-impact actions to the instances that highlighted successes in months of expansion in the economy citizens on multiple committees, each state through addressing gaps in fund- public-private partnerships, and Peña had preceded February, and the unem- reflecting a different sector of the econ- ing for COVID response, she explained. noted work on a separate fund current- ployment rate was roughly 3% and now omy from energy to healthcare, to make The idea of a gap fund was created to ly underway that is being sponsored is over 7%. recommendations for local delegations, address shortcomings between the fed- by the state, banks, private groups and Approximately $5 trillion in relief state legislative action and governor’s eral and the state government provid- others to help with economic recovery. funds from the federal government executive orders. ing roughly $25 million from the state, One area that had been of concern Peña said the group quickly identi- and monies from the private sector was rural places around the state. Many CONTINUED ON PAGE 21… NOVEMBER 23, 2020 | 7 IN THE COMMUNITY Supreme Court Justice Carlos Samour Shares Tips for Trial Attorneys Event features advice on professionalism in the courtroom

JESSICA FOLKER your behavior in the courtroom should Samour said, there’s no reason to stay adding that while attorneys should do LAW WEEK COLORADO be such that a neutral observer who there and continue the cross examina- their best for their clients, “you have to knows nothing about the case and is tion. “Once the purpose of your visit to avoid any temptation that you may have Colorado Supreme Court Justice Car- simply observing the ruling … should the witness stand … has been fulfilled, it’s to engage in gamesmanship or to try los Samour on Nov. 19 shared his advice not be able to tell who prevailed and time to go back to the podium,” he said. to be clever and pull the wool over the on professionalism in the courtroom who failed,” Samour said. The next piece of advice was to be judge’s eyes.” during a CLE presented by the Colorado Samour added that showing defer- assertive when making objections. Some Speaking style matters, too. “Do not Hispanic Bar Association and the Denver ence and respect for the court applies to attorneys, he said, will stand halfway up attempt to prevent the judge from ask- Bar Association Young Lawyers Division. written submissions as well, and there or interject with words like “Wait!” or ing you questions during an argument The presentation drew from Samour’s is no need to take “unwarranted shots” “Stop!” Samour said he has observed this by speaking fast without ever taking a experience and observations as a litiga- at the court in written filings. Attorneys type of “reluctant” objection when a law- breath,” Samour said, “no matter how tor, prosecutor and district court judge can and should remain deferential and yer feels that information from a witness strong your lungs may be.” He added that in Arapahoe County as well as his time professional while being persuasive and or a question from opposing counsel is attorneys should want to hear what ques- on the state’s highest court. He began forceful in arguments. “It’s an adversarial damaging, “but they couldn’t put their tions and concerns judges have so they his presentation with advice on showing system,” he said. “It’s not an uncivil sys- finger on what the basis would be for ob- can address them. Read the judge’s body deference and respect toward judges and tem. And there’s a big difference between jection.” Attorneys should stand up with- language, he said, and take breaks to let the court, starting with being on time. If those two.” out hesitation, he said, say “objection, them ask questions. an attorney is late because something Samour’s next few “pearls of wisdom” Your Honor,” and give the legal basis for Attorneys should also avoid verbosity unforeseeable comes up, he said, it’s best had to do with treating opposing counsel the objection. “If you don’t have a basis and repetition and speak clearly and “rea- to acknowledge the tardiness and offer a with respect. Attorneys should avoid in- for the objection,” he said, “you shouldn’t sonably slowly,” Samour added, so court genuine apology. He also recommended terrupting or displaying body language be making an objection.” reporters can create a good record. overestimating how long hearings and such as improper facial expressions, head When addressing a jury, Samour said, Finally, Samour said a few words on trials will last. shaking or other gestures when they dis- attorneys should avoid using phrases like how to maintain professionalism in the His next piece of advice: “All rise re- agree with the other side, he said, and “I think” or “I believe,” which suggest age of COVID, when many court proceed- ally means all rise.” Attorneys should they should also avoid describing oppos- that what is being said is a personal opin- ings are happening via videoconferenc- stand, stop talking and face the bench ing counsel’s position using words like ion. “Whether it’s opening statement or ing. He advised attorneys to do their best when a judge enters or leaves the court- “asinine.” Similarly, attorneys shouldn’t closing argument, it should be about the to minimize on-screen interruptions by room. It may seem obvious but, Samour address opposing counsel directly during evidence,” he said. pets or kids and to make sure lights, mi- said, “you’d be surprised how many peo- aa disagreement on the record. “It should be about what’s being pre- crophones, computers and internet con- ple wouldn’t stand up.” He added that Samour went on to address specific sented, and not what you think or what nections are working ahead of time. the gesture isn’t about a judge’s ego but courtroom habits, procedures and con- you believe.” “Treat it, to the best of your ability, as showing respect for the court. Samour duct. He advised attorneys to ask before It’s also important to be prepared. a court proceeding with the same solem- also emphasized the importance of being approaching the bench or the witness Preparation can help make up for a lack nity that you would treat a typical court courteous not only to judges but to court stand unless the judge has directed them of experience, Samour said. “After some proceeding when you are there in per- staff who, he said, “wield a lot of power in to do otherwise. He noted some judges years on the bench, I could tell who was son,” he said. the courtroom.” don’t want attorneys to ask every time, winging it, and I could tell who was pre- Samour noted that some attorneys Attorneys should avoid interrupting and they’ll usually make their preference pared,” he said. “And I think you convey have set up podiums to stand at during judges when talking, Samour said, and known, but added it’s best to err on the the wrong message to the judge when video oral arguments. “Not only did it do their best to hide their reactions to a side of caution. you’re not prepared. I think you convey look better [than sitting],” Samour said, judge’s ruling, whether favorable or unfa- Likewise, attorneys shouldn’t linger the wrong message to the jury when “but it just seemed to make the person vorable. That means no eyerolls, sighing, at the witness stand for longer than nec- you’re not prepared.” feel more like they are making an argu- head shaking, thumbs up or high fives. essary. While it might be necessary to ap- Never attempt to misrepresent the ment in front of the Supreme Court.” • “I used to explain to people that proach the witness to show a document, facts or mislead a judge, Samour said, —Jessica Folker, [email protected] 8 | LAW WEEK COLORADO IN THE COURTS 10th Circuit Hears Arguments in LGBT Discrimination Case Website designer says making same-sex wedding sites would violate her religious beliefs

JESSICA FOLKER ny website explaining that she cannot In Hurley, the court ruled that private citing a different U.S. Supreme Court LAW WEEK COLORADO create websites that are inconsistent parade organizers had the right to de- case, Rumsfeld v. Forum for Academic with her religious views. termine the message they convey and and Institutional Rights. The 10th Circuit Court of Appeals Representing 303 Creative, Kristen could not be forced to allow an LGBT Chief Judge Timothy Tymkovich on Nov. 16 heard a First Amendment Waggoner of Christian conservative group to participate. asked Olson whether Smith’s decision challenge to the Colorado Anti-Discrim- group Alliance Defending Freedom ar- In 2017, Waggoner argued a similar to refuse customers is due to their ination Act that takes up many of the gued Smith’s refusal to create same-sex case, Masterpiece Cakeshop v. Colorado sexual orientation or because of their questions left unanswered by the U.S. wedding websites is based on the con- Civil Rights Commission, before the U.S. message. Olson responded it’s due to Supreme Court’s narrow ruling in the tent of such sites rather than the cus- Supreme Court. However, the high court their sexual orientation and used the Masterpiece Cakeshop case. tomer’s protected status. When asked avoided ruling on the constitutionality example of a couple, Alex and Taylor, Plaintiff Lorie Smith, owner of web whether Smith would refuse a request of CADA, finding instead that the cake who want a text-only website that says, design company 303 Creative, argues by a straight wedding planner to create shop owner’s First Amendment rights “celebrate our joy.” Smith had said she CADA violates her rights to free speech five mockup wedding sites to show to were violated because the CCRC showed would create the website if Alex and and religious exercise by forcing her to potential clients — four featuring dif- hostility toward his religious beliefs. Taylor were an opposite-sex couple, express messages that conflict with her ferent-sex couples and one showing a Colorado Solicitor General Eric Ol- Olson said, but would not if they were a religious views on same-sex marriage. same-sex couple — Waggoner answered son argued that CADA regulates con- same-sex couple. Smith claims CADA’s Accommodation that she would. duct, not speech, by prohibiting busi- Olson also argued that Smith lacks Clause would force her to make wedding Waggoner said her position is sup- nesses from discriminating against standing because she has yet to of- websites for same-sex couples, while its ported by the 1995 U.S. Supreme Court those who belong to a protected class. fer wedding websites to any custom- Communication Clause prevents her case Hurley v. Irish-American Gay, Les- Therefore, the law doesn’t violate the from adding a disclaimer to her compa- bian and Bisexual Group of Boston. First Amendment, according to Olson, CONTINUED ON PAGE 21… NOVEMBER 23, 2020 | 9 IN THE NEWS Colorado Court of Appeals Rejects TABOR Attack on Hospital Fee Ruling prevents loss of healthcare access, fiscal hole for state

HANK LACEY of the state’s costs. The federal share erished patients. “We’re not generating out by that agency: whether the charge LAW WEEK COLORADO depends the state’s per capita income. any sort of profit and we’re losing sig- is “pecuniary” in nature, imposed by the According to data provided by the Kai- nificant resources in treating those pa- legislature, and used to raise money for Colorado avoided a devastating blow ser Family Foundation, the costs of pro- tients,” Mulready said. a “public purpose.” The justices have to its programs that provide access to viding Medicaid under its 1965 iteration In addition to paying for the state’s never ruled on the question whether a healthcare for more than 1.5 million are equally shared by the Colorado and Health First Colorado program (Colora- particular assessment authorized by the state residents when the Court of Ap- U.S. governments. Ninety percent of the do’s title for Medicaid), HPAF finances General Assembly is a tax or a fee under peals dismissed a lawsuit alleging that expansion of Medicaid eligibility, an op- the Colorado Indigent Care Program, TABOR. Most recently, in Sept. 2019 the its financing mechanism violates the tion available to states under the federal which provides discounted healthcare court declined to address the question. Taxpayer Bill of Rights. The Nov. 5 rul- Affordable Care Act of 2010, is covered to indigent residents, funds the Child “TABOR does not . . . define these key ing declared that two taxpayer rights or- by the federal government . The expan- Health Plan Plus program, and provides terms, nor have we,” Justice William ganizations and two individuals lacked sion funding raises the portion of costs for “quality incentive payments” to hos- Hood said in the majority opinion deliv- standing to challenge both the current of care reimbursable to hospitals from pitals. According to an annual report ered in a case called Griswold v. National tool used to obtain matching funds from 54 cents on the dollar under the legacy submitted to the governor and the legis- Federation of Independent Business. the federal government and reimburse Medicaid program to 80 cents on the lature’s Joint Budget Committee in Jan- It is not a question of whether the hospitals for otherwise uncompensated dollar. Without it, the nearly 1.4 million uary, the state’s enterprise operation to use of the money raised by an assess- care and its 2009 predecessor. of the state’s residents now on Medic- administer the fee, known as Colorado ment is important, Pfiffner said. “We The panel’s holding preserves a aid — “just under a quarter of the state’s Healthcare Affordability and Sustain- don’t really take a position on the tax state fund most recently reaffirmed by population,” according to Kathryn Mul- ability Enterprise, collected more than itself,” he said, using his organiza- the legislature in 2017. Had Colorado ready, senior vice president and chief $917 million through HSAF during fiscal tion’s preferred description of HASF lost the case, the Department of Health strategy officer at the Colorado Hospital year 2018-2019 and reimbursed hospi- and HPF. “What we take a position Care Policy and Financing would have Association — would be at risk of losing tals more than $410 million. on is the state legislature saying, ‘we been forced to refund as much as $6 bil- access to healthcare.” The TABOR Foundation, one of the know we took an oath to protect the lion, plus interest, to the hospitals that HASF, which is similar to a 2009 plaintiffs in the case, claimed that HPF state constitution, which includes the have paid into it. The result would have precursor called the Hospital Provider and HASF, however they relate to Colo- Taxpayer Bill of Rights, but we don’t been a gaping $2 billion hole in the Fee, is collected into a central fund and rado’s healthcare sector, were subject to have to play by the rules.’ When we see state’s budget and a huge debt. “At least then allocated to a variety of healthcare TABOR, the 1992 constitutional amend- that, the TABOR Foundation reacts.” a million Coloradoans would lose their purposes. “Some of it goes to pay hos- ment, and should have been sent to the Gallagher decried that stance as in- Medicaid coverage and the state would pitals,” Mulready explained. “Some of it voters for approval. consistent with the state’s limits on be stuck with a $6 billion payment ob- goes to pay for the Medicaid expansion “It amazed me that the government the circumstances when taxpayers can ligation without any ability to collect population authorized in 2013 and also wouldn’t say there’s this program that challenge a program under TABOR and that money and repay it,” said Sean the Medicaid expansion population au- gives us our money back, but please said that the court of appeals reasonably Gallagher, an attorney at Polsinelli who thorized in 2009. It pays for a portion of give us permission to collect it in the found that none of the plaintiffs had represented the Colorado Hospital As- [Department of Health Care Policy and first place,” Penn Pfiffner, a former state standing. “The state district court found sociation in the case. Financing] administrative costs, it pays legislator and chairman of the organiza- that there was no evidence that individ- The financing mechanism, called for a couple of special programs, and the tion’s board of directors, said. ual bills from a hospital were any higher the Healthcare Affordability and Sus- bulk of the remaining dollar does go to Pfiffner maintains that HASF and as a result of the fee,” he said. “That’s tainability Fee under a 2017 law that hospitals through ... supplemental pay- HPF should both be characterized as a because, when the fee is collected and modified it, is used in part to provide ments.” None of the money returned “bed tax.” He pointed out that, accord- matched with federal funds and then we Colorado’s required contribution to to hospitals from the state’s hospital ing to a 1993 opinion of the General As- provide additional funding for people Medicaid. Under that program, first fee pool after those funds are matched sembly’s Office of Legislative Legal Ser- created in 1965, the U.S. pays a portion subsidizes profit from the care of impov- vices, they meet the three criteria laid CONTINUED ON PAGE 21… 10 | LAW WEEK COLORADO IN THE NEWS Gross Reservoir Dispute Weighs Water Demand, Environmental Concerns Boulder County Commissioners to consider expansion permit in coming months

HANK LACEY To ease the water demand, the city Bart Miller, an attorney at Western system,” Jen Pelz, an attorney and Wild LAW WEEK COLORADO moved from the idea of constructing a Resource Advocates in Boulder and the Rivers Program Director at WildEarth new reservoir — and flooding a canyon group’s Healthy Rivers Program direc- Guardians, said. “If we keep putting “In the West, when you touch wa- beloved to recreationists and environ- tor, emphasized that the agreement Band-Aids on the systems, we’re miss- ter, you touch everything.” Legend mentalists — to expanding an existing obligates Denver Water to reduce di- ing the forest through the trees.” has it that Wayne Aspinall, the con- one. Gross Dam and Reservoir, com- versions during drought years. “The Martin vigorously disputes this gressman who represented Colorado’s pleted in 1954 on South Boulder Creek, project itself was shaped and designed claim, pointing out that Denver’s wa- Western Slope during the mid-20th is capable of holding about 40,000 acre to avoid damaging or affecting flows in ter conservation efforts have reduced century’s years of dam building, pro- feet of water carried from the Fraser the driest of years,” he said. “The proj- water use in the city by 20% even claimed this sentiment as one of his River through the Moffat Tunnel. ect will only take water in the average as its population has grown by 15% guiding principles He could not have “Not only did the opponents to or above-average years.” since those programs were launched. anticipated that debates over water in Two Forks highlight that expansion of Gretel Follingstad, a former water Miller backed him up: “They’ve kept the Mother of Rivers would lead to a existing facilities would be less dam- planner for the New Mexico Office of their water use flat for the last four contentious argument over whether to aging, they provided the complete the State Engineer, said that other Col- decades,” he said. “They’ve managed accommodate the expansion of one of roadmap to Denver Water,” Jeff Mar- orado River basin restoration benefits, to keep their average annual use the Denver’s water supply pillars. tin, project manager for the Gross Res- including planting trees on river banks same as it was 35 years ago.” With a population expected to rise ervoir expansion, said. “We listened, and narrowing conduits to benefit trout To Tom Cech, co-director of the nearly 20% between 2020 and 2050, we learned from our history.” Martin populations, should not be taken for One World One Water Center for Ur- Denver faces the possibility that Boul- explained that Denver Water first con- granted because they likely could not ban Water Education and Stewardship der County might reject plans to ex- templated the undertaking formally have been assured in a courtroom fight at Metropolitan State University, it pand Gross Reservoir. The governing called the Moffat Collection System over Fraser diversions. “I think the ben- is not realistic to expect Denver Wa- board of commissioners in the nearby Project in 2003. By 2009, the city had efit to the river itself is better when you ter to meet the needs of a city popu- county is preparing to decide wheth- asked the U.S. Army Corps of Engi- have a cooperative agreement than lation expected to increase by 88% er to use a powerful state land use law neers and the Federal Energy Regula- when you just have litigation,” she ex- since the demise of Two Forks Dam by to deny Denver permission to dou- tory Commission for permits needed plained. “With litigation you run the conservation alone. “Some would say ble the size of the reservoir. Boulder to increase storage in Gross Reservoir risk of still dewatering the Fraser but there’s more that could be done, but County has not yet announced when it by 77,000 acre feet and raise the dam not having any restoration to begin it’s a pretty robust water conservation will take up Denver’s application for a by 40 meters. with. Instead of a win-win on both sides program,” he said. “To meet the water 1041 permit needed to move forward you end up with a win-lose.” needs of people moving here you’ve with the $464 million expansion, but Follingstad, a Ph.D student at got to find other sources of water.” Denver Water has mounted an insis- BUILDING ALLIANCES CU-Boulder whose research focus- Data provided by Denver Water tent campaign that it is necessary to ON THE WESTERN SLOPE es on adapting water systems to deal suggests that average annual demand provide adequate drinking water for To buttress support for the project, with climate change impacts, believes is likely to increase by 94,000 acre feet its customers. Denver Water took an unprecedented the CRCA and the projects that it has per year between 2002 and 2032 and step in 2013 by entering into an agree- spawned are also demonstrating to that the agency may face an annual ment to preserve the very river on the Colorado that Denver Water is inter- shortage, without additional storage, AFTERMATH Western Slope that supplies Gross ested in being a good corporate citi- of more than 34,000 acre feet. Those OF TWO FORKS Reservoir. The Colorado River Coop- zen. “They are basically showing an figures are based on a 2002 projection Wrangling over the Gross Reser- erative Agreement commits the utility example of what we haven’t really seen on which Denver Water continues to voir expansion is not the first occa- to a slew of promises, including limit- a whole lot of, pre-2010, when collab- rely as justification for the project. sion of intense conflict over Denver’s ing its service area to its current scope, orative agreements started becoming Pointing the finger at landscap- water demand. During the 1980s the paying $11 million of expected costs to a much more used tool in water man- ing is easy to do, Follingstad said, city pushed for construction of the restore sections of the Colorado, Fras- agement,” she said. “It is a move in the but the reality is that Denver might Two Forks Dam, which would have er and Williams Fork Rivers and mit- right direction.” be running up against a limit of what flooded Cheesman Canyon and creat- igate damage done by its diversions, changes in household use habits can ed both a structure taller than Hoover and releasing 2,000 acre feet of water accomplish. “When you use water Dam and the largest lake in Colorado. to the Colorado and the Fraser during DOES DENVER REALLY conservation to meet supply needs, Denver Water said at the time that low-flow, high-temperature events. NEED THE WATER? you get to a point where you can’t re- more storage was essential to provide These duties are conditioned upon Opponents of the Gross Reservoir duce use any further,” she said. “That water for the city. Nevertheless, the the completion of both the Gross Res- expansion are adamant that, regard- means conservation is not the silver U.S. Environmental Protection Agen- ervoir expansion and the Windy Gap less of Denver’s efforts to lessen its im- bullet.” Follingstad believes that, con- cy vetoed it in 1990, declaring that the Firming Project, now being construct- pacts on Colorado River basin waters, trary to the critics’ take that Denver dam would cause “unacceptable envi- ed by the Northern Colorado Water Denver must address its water needs has not done enough to assure conser- ronmental damage.” Conservancy District. “The agreement by using less instead of continuing a vation, the city’s efforts so far should Slightly more than a decade later, ushered in a new era of cooperation habit of extracting and moving water enhance its credibility when it claims in 2002, a severe drought led to the that for the first time in Colorado his- from the Western Slope and building more water is needed. “Denver Water first water use restrictions in Den- tory brought together the West Slope another reservoir. They argue the city is a lynchpin of water conservation,” ver, while the massive Hayman Fire and the Front Range on a shared vi- has not done enough to conserve and she said. “That should speak to their in the Pike National Forest led to an sion for a secure and sustainable water that, in an era of human-caused cli- benefit in this situation. They’re not intrusion of sediment in the utility’s future,” Denver Water chief executive mate change, there is not going to be arbitrarily going after a reservoir ex- reservoirs. officer/manager Jim Lochhead said. water to divert. “It’s an unsustainable pansion project without really calcu- NOVEMBER 23, 2020 | 11 IN THE NEWS lating the need, without calculating for the Mile High City is the ongoing PERMIT, FERC LICENSE, questions, as they are required to do in the amazing conservation practices impact of climate change. “At some AND FEDERAL COURT under federal law, they just accepted they’ve achieved.” point, if you have a two- or three-year Denver Water’s view,” Eubanks said. Denver Water does agree that ad- drought, the water levels in reservoirs LITIGATION “The Corps of Engineers certain- ditional conservation is possible. Ac- that Denver currently has are going to Before expanding Gross Reservoir, ly put out a lot of paper, but nowhere cording to the 2002 estimate of the go down and down to the point where Denver needs a permit from the U.S. in that paper did they ever scrutinize expected 34,000 acre feet shortfall that reservoir is dry,” Cech explained. Army Corps of Engineers that allows what Denver Water was saying about within its service area by 2030, it can “The concern is a multi-year drought. Denver Water to inundate 281.1 acres demand, whether this project is truly make up 16,000 acre feet via addition- We can get through a one-year of land, including 280 acres of the needed to meet demand, and whether al conservation measures. drought, a two-year drought, but what Arapaho-Roosevelt National Forest, there are any alternatives,” Eubanks The city has also seen, contrary to about a four-year drought or a 10-year surrounding the existing lake. Before continued. Indeed, in a legal document the 2002 supply prediction that is the drought?” According to a 2015 report flooding that land, Denver Water would filed in the case brought by Eubanks’ basis of its claimed need for the Gross by CU-Boulder and Colorado State remove as many as 650,000 trees from clients, Denver Water admitted that Reservoir expansion, no shortfall by University, the statewide average an- a total of 456 acres, including at least the extra storage room provided by a 2016 and an actual decline in water nual temperature has increased by two one acre of old-growth ponderosa pine larger Gross Reservoir “will be filled use since 2002. A Denver Water fact degrees since 1985 and will increase forest. Opponents decry this and other only in average and above-average sheet relating to the project and post- by an additional 2.5 to 5.5 degrees environmental consequences from the runoff years and will be reserved for ed online in 2018 says its conservation above a 1971-2000 baseline by 2050. project, such as destruction of more use during droughts or system emer- efforts have already reduced actual By then, snowpack is expected to de- than five acres of wetlands and more gencies.” water use from pre-2002 drought lev- cline, spring runoff will likely shift to a than four acres of riparian habitat, Denver Water and the federal els by 22%. period that is one to three weeks earli- sinking of Forsythe Falls, and damage agencies sued by Eubanks’ clients have The city also has additional stor- er than it occurs at present, and longer to the fish population in South Boul- asked a U.S. district judge in Denver to age under construction in the South and more intense droughts will occur. der Creek. The project will also in- dismiss the lawsuit on grounds that Platte River basin. According to a Denver Water maintains that, consid- crease diversions from the Fraser and project opponents did not raise their March 2018 report in its TAP newslet- ering only the projected temperature the Upper Williams Fork River on the arguments before the Federal Ener- ter, Denver Water is in the process of change, water held in storage could Western Slope. gy Regulatory Commission, which converting sand and gravel mine sites decline by 7-20% as a result of evap- Bill Eubanks, the owner and man- granted the utility a required license into nine small reservoirs as part of its oration while household use increases aging partner of national public inter- under the Federal Power Act in July. Downstream Reservoir Water Storage by 6-7%. “If you wanted to find, over est environmental law firm Eubanks & Eubanks said he considers this move Program that will store about 32,000 the last 10-15 years, public officials Associates in Washington, D.C., rep- to be an indication that Denver Wa- acre feet or about 10.5 billion gallons. who are least likely to deny climate resents opponents of the Gross Reser- ter cannot defend the project on the The water, like that Denver stores at change, the best place to find those voir Expansion who have asked a fed- merits. “Rather than confronting our Gross Reservoir, comes from Western public officials would be in water util- eral court to block the project. To his claims candidly, they’re trying to find Slope rivers and streams in the Colo- ities,” Patricia Limerick, a professor or clients, the central problem is that the a way out,” he said. “They’re looking rado River watershed and, since it is history at the University of Colorado U.S. Army Corps of Engineers failed to for a mulligan to get out of this suit.” diverted out of its home watershed, at Boulder and director of the school’s determine whether Denver’s claims Whether the Army Corps of Engineers can be reused. Center of the American West, said. about its water needs are accurate. A more unpredictable challenge “Rather than pushing back and asking CONTINUED ON PAGE 22… CLEAN WATER ACT

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JESSICA FOLKER make sure that our clients under- law attorneys have stayed busy advis- Roger Trim, managing sharehold- LAW WEEK COLORADO stand what the risks of going to trial ing clients of changes in the law that er at the firm’s Denver office, said are, what the benefits are of going to will affect their Colorado operations. one of the biggest accomplishments While some practice areas have trial, what you can achieve in a court- These include the state’s new sick for the Denver labor and employ- slowed down due to the pandemic and room, and what you can’t necessarily leave law, set to take effect in Janu- ment group this year has been being recession, employment law attorneys achieve in a courtroom,” Greer said. ary, and ever-changing government “on the cutting edge of developments have remained as busy as ever. Em- “We really pride ourselves on be- orders and guidance on business op- in Colorado wage and hour law” and ployment lawyers at Denver firms ing effective at communicating those erations during the pandemic. educating clients on the “myriad recognized on the “Best Law Firms” sorts of challenges so that our clients “It seems that we have a more ac- changes” in Colorado employment list discuss what sets their firms apart aren’t taken by surprise by litiga- tive state in terms of recognizing the law. In addition to the sick leave law and their approach to advising cli- tion.” risks of COVID to different types of that passed this spring and an equal ents on the slew of new laws, regula- The firm made the “Best Law operations,” Greer said, adding that pay law that takes effect in January, tions and emergency orders that have Firms” Tier 1 list for Colorado in la- although some people are opposed to Colorado recently passed a public been issued in response to COVID. bor and employment litigation along masks and other restrictions, “I think health emergency whistleblower law with several other categories. The that overall, Colorado seems to be in response to COVID. COURTS AND COACHING firm’s employment litigation attor- more of one mind than some of the “We joke that Colorado is becom- Denver-based Wells Anderson & neys include three members, one other states. So that’s been a positive.” ing more like California in its labor Race prides itself on being a major- special counsel and several associ- and employment environment, and ity women-owned firm known for its ates who work across different prac- ONLINE EDUCATION that’s true,” Trim said. “It seems like trial lawyers and ability to handle tice groups. In addition to its private Ogletree Deakins was named every year there are laws that impose complex commercial litigation. But employer clients, the firm represents “Law Firm of the Year” in the labor more and more obligations on em- member Cathy Havener Greer says many public employers, according to and employment litigation category ployers.” success isn’t always about winning in Greer, including the state of Colorado and also earned a Tier 1 ranking for In a normal year, Trim said, the court. and a number of cities and counties. Colorado in that category as well as firm would bring clients up to speed “Because we are trial lawyers, While the pandemic has put many management-side employment law I think we really work very hard to trials on hold, the firm’s employment and immigration law. CONTINUED ON PAGE 22…

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AVERY MARTINEZ Colorado and across the country. all industries, but because construction was because a lot of the development effort that LAW WEEK COLORADO Matthew Ninneman, who practices in deemed an essential business — and the le- went into that all happened pre-COVID,” construction at Hall & Evans, which re- gal services needed in that industry — the Ninneman said. Despite the pandemic and its effects on ceived a Tier ____ recognition on U.S. News work continues at a healthy pace. While the pandemic has brought its real estate and construction, work in those and World Report’s Best Law Firms list, said “I believe it cuts across all of those own economic impacts, 2020 has looked practice areas has remained strong. And the construction industry has stayed as sectors, whether you’re talking residential very different from the economic recession Colorado attorneys agree on their optimis- busy as he’s ever seen it in his career. The construction, commercial construction, tic outlook for the future of their practice in economic impacts of COVID are affecting public municipality works — and I think it’s CONTINUED ON PAGE 23…

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CRAIG BLACKMAN, PETER to safeguarding valuable company in- heightened level of vigilance. trated their efforts on securing the BOGDASARIAN AND RACHEL ORTIZ formation and meeting practical and The best cybersecurity practices for “perimeter” of the network, with the STRADLEY RONON STEVENS statutory privacy obligations to cus- remote or hybrid work start with edu- idea that the worst threats would & YOUNG tomers. Trial and error forced some cating and training the workforce. Em- originate from outside the network. companies that initially relied on ployees must know what to look for and As threat actors became more skilled COVID-19 is driving tremendous Zoom to quickly ban its use for corpo- how to prevent phishing or malware at- at infiltration and internal threats be- uncertainty in the professional work- rate content because the platform did tempts. Issuing employer-owned devic- came more prominent, the industry space, particularly where workers will not meet basic security requirements es for all workers with defined security began to question the reliability of physically perform their job. When at the time. is ideal. Employers must keep software this model. The rapid mass migration the pandemic struck, CEOs were im- Security officials are better able to and systems updated, ensure that their to a remote work argument has put pressed with workers’ ability to adapt manage and secure information tech- workforce is using strong passwords, an end to the notion that the best way to remote working environments. nology networks in an office or oth- and regularly monitor accounts for sus- to defend the network is to simply se- Some companies quickly embraced er captive workspace environment. picious activity. cure it against exterior access while the efficiencies and cost-cutting op- Employees’ home wifi networks likely The future of cybersecurity likely extending unlimited trust to users portunities that resulted from pan- have weaker protocols that hackers involves leveraging powerful technol- inside the network. The challenge demic-driven telework and commit- can access more easily. The Cyber- ogies such as artificial intelligence and now facing companies is to configure ted to long-term remote work. security and Infrastructure Security automation. AI can be used for fraud remote work solutions in a fashion Now, though, cracks are begin- Agency found that even where orga- detection, malware detection, intrusion that avoids creating new infiltration ning to emerge as workers continue nizations use virtual private network detection, scoring risk in a network, and routes into the core network and that to telework long after most expected solutions to connect employees to user/machine behavioral analysis. provides a measure of comfort that IT a return to their physical workplac- their networks, new vulnerabilities In the present, there are several and security are aware of what is go- es. Some businesses are noticing that are being found and targeted by ma- steps organizations can and should be projects are taking longer, training is licious cyberactors. taking to mitigate their cyber risks: CONTINUED ON PAGE 22… more difficult, hiring and integrating The COVID-19 pandemic also • Continue to develop aware- ing on inside the walls. new employees is more complicated, seems to have ushered in a resurgence ness among the organization’s per- For many users, VPNs have been and younger professionals are not of state-backed hacking. The hacking sonnel. With many employees placed at the forefront of their remote work having the same opportunities for de- was targeted at data related to the into an unfamiliar remote work envi- experience. The concept behind the velopment as they would have in the virus. Those hackers are now trained ronment, it is more important than VPN approach is that traffic is en- typical office environment. and likely won’t be going anywhere ever to develop their ability to detect crypted and sent through the VPN’s Some of the initial efficiencies rec- anytime soon. In April 2020, security (and report) cyberattacks and to train Internet connection. However, the ognized are now being attributed to experts at Google sent 1,755 warnings them to recognize that threat actors question of what traffic is redirected the fear that employees felt when the to users whose accounts were tar- may deploy new forms of attacks to through the VPN connection is one of pandemic began - namely, that of los- gets of government-backed attackers. take advantage of the disruptions of configuration and a VPN network may ing their job if they failed to perform These hackers targeted business lead- COVID-19. For example, deploying not be configured to direct all of a us- at the same level as in-person opera- ers in financial services, consulting, phishing simulation tests themed er’s traffic through the VPN network tions. Such fear-driven productivity is and healthcare around the world, in- with pandemic-related content may (called “split tunneling”). That means proving to be unsustainable. cluding in the United States. lead to substantially a higher click- this configuration, while beneficial The Bureau of Labor Statistics re- In general, hacking and phishing through rate among users. Now is a from the standpoint of lessening the ports that only 29% of Americans were attempts have increased during the good time to reflect on the organiza- load on the network, may provide new able to work from home pre-pandem- pandemic. Malicious actors are suc- tion’s security awareness plan as it re- for a threat actor to attack. Therefore, ic. Surveys show that post-COVID-19, cessfully preying on workers’ anxi- lates to training users and on testing it is important to reassess how em- most workers want the option to work eties and fears surrounding the pan- the effectiveness of that training. ployees connect to the organization’s from home at least part-time. Thus, demic, and exploiting the uncertain • Regain control over the net- network and whether additional edu- many companies are now envisioning circumstances to increase their rate work is crucial. For many years, cy- a hybrid future where employees can and scope of cyberattacks. bersecurity professionals concen- CONTINUED ON PAGE 22… work remotely part of the time and Finally, the U.S. workforce is large- work from the office during the re- ly unsophisticated when it comes to mainder of the week. teleworking, which could be exacer- Whatever the new normal looks bated if and when organizations move like, it is now widely accepted that towards a hybrid work schedule. When teleworking is inherently less secure workers constantly switch from office than working from the office. , A hy- to remote work, an organization risks brid approach could, in fact, prove complacency, which in turn risks ex- even riskier as far as cybersecurity posure. Entities with private person- and cyber-risk are concerned. al, health, or financial data, including As we approach this new normal, law firms, brokers and financial advis- there will be a learning curve. Unfore- ers, and medical offices, must protect seen security challenges will pop up, their clients’ sensitive personal infor- just as they did when workers first mation. While working from home, shifted to remote work at the begin- telephone and other communications ning of the coronavirus shutdown. must remain confidential. These busi- For example, the shutdown drove nesses must find ways to guard against huge growth in the use of platforms the predictable tendency for employ- like Zoom and Microsoft’s Teams. For ees to be less careful while telework- corporate users, encryption and pri- ing. Going back and forth from the vacy on these platforms are critical office to remote working will require a NOVEMBER 23, 2020 | 17 AROUND THE NATION GOP Lawsuits Restrain Governors’ COVID-19 Actions

SOPHIE QUINTON liberal justice, moving the court to a 4-3 Ballotpedia, an online encyclopedia of Whitmer is trying to work with the STATELINE Democratic majority. politics and elections. legislature to codify orders that the health Some experts doubt that elected Some of the lawsuits have been department can’t issue. She worked with Governors of both parties are facing leaders in Wisconsin and Michigan can supported by the Trump administra- the legislature on a law that codified part a deluge of lawsuits from right-wing law- agree on a plan to control the virus any- tion, which has urged courts to make of her order expanding unemployment makers, conservative legal groups and time soon. sure public health orders don’t abuse insurance benefits, for instance. Republican activists who say chief exec- “Our political system is so polarized civil liberties. She also has asked lawmakers to utives need legislative approval to shut that you can’t even get them to sit down Republican legislators have sued codify a mask mandate. “I think it’s im- down businesses, require mask-wearing and rationally talk through what makes Democratic governors over their portant, now that the Supreme Court has or force residents to stay home to slow sense to stop the pandemic,” said Peter COVID-19 orders in at least seven states, kind of muddied the waters and created the spread of the novel coronavirus. Jacobson, co-director of the Mid-States from Democratic bastions such as Colo- a lot of confusion about what is the cur- Judges have tossed out the lawsuits or Region Office at the Network for Public rado and Oregon to battleground states rent law here in Michigan,” she explained sided with governors in most states where Health Law, a nonpartisan Edina, Min- such as Pennsylvania. In North Carolina, during a press briefing last week cases have been filed. But in Wisconsin nesota-based group that advises public the Republican lieutenant governor sued It’s not clear whether the Republi- and Michigan, conservative-leaning state health officials. the Democratic governor. In Kentucky, can-controlled legislature wants to im- Supreme Courts have struck down gover- Vos has called for more testing but the Republican attorney general sued the pose new public health restrictions. nors’ emergency public health orders. opposed mask-wearing requirements and Democratic governor. Both Shirkey and House Speaker Lee Now Wisconsin Gov. Tony Evers and business closures, according to news re- The litigation doesn’t stop there. Re- Chatfield have opposed mask mandates Michigan Gov. Gretchen Whitmer, both ports. His office did not respond to calls or publican lawmakers also have sued the in the past. Shirkey spokesperson Am- Democrats, are struggling to combat emails from Stateline seeking comment. Republican governors of Arkansas and ber McCann said in an email that Shirkey surging COVID-19 cases without running Republican lawmakers and conserva- Maryland. In Ohio, they’ve drafted arti- and his team are talking with the gov- afoul of the courts. tive legal groups say the lawsuits merely cles of impeachment against DeWine. ernor and her team about a response to Evers last week announced an execu- seek to maintain a balance of power be- Louisiana Democratic Gov. John Bel COVID-19, but did not comment further tive order that recommends, but doesn’t tween governors and legislatures. Edwards sued Republican legislators to on those discussions. require, Wisconsinites to stay home and “It’s not about what policy measures block a petition to end his public health businesses to limit visitors and staff as we should take to respond to COVID-19, emergency proclamation. Kansas Dem- well as require masks. He noted that a but who gets to make those decisions ocratic Gov. Laura Kelly sued to stop Re- A BREAKDOWN March stay-at-home order and business and according to what processes,” said publican lawmakers from overturning IN WISCONSIN closure requirement issued by the state Anthony LoCoco, deputy counsel at the her order limiting religious gatherings. Nowhere has the debate over execu- health department didn’t survive court Wisconsin Institute for Law and Liberty, In general, judges have sided with tive power been more rancorous than in challenges. a conservative legal group that has sid- governors. But in Michigan and Wiscon- Wisconsin, where the governor and leg- “That order was struck down by the ed with Republican legislative leaders in sin, court rulings have limited the execu- islative leaders are barely on speaking Wisconsin Supreme Court — a decision their cases. tive branch’s power to act alone. terms even as the virus has killed more that hamstrung our ability to respond to Some Democrats and outside le- In Michigan, the state Supreme Court than 2,600 people and hospital beds are this virus by using the tools supported gal experts, however, say the lawsuits ruled last month that the governor can’t filling with COVID-19 patients. by science and public health experts,” he are often partisan efforts to reduce the extend an emergency declaration with- Every major executive action Evers said in a speech imploring state residents power of Democratic governors and re- out the legislature’s consent and struck and the state health department have to take the virus seriously. flect conservative skepticism of policies down one of two laws giving Whitmer taken to slow the spread of the corona- There were only 457 confirmed coro- such as economic restrictions and mask emergency authority. The ruling inval- virus has been challenged in court by Re- navirus cases in Wisconsin when the mandates. idated many of the orders Whitmer had publican lawmakers, conservative legal health department issued the March or- While Democrats tend to support issued since April 30. groups and business groups, starting with der. Last week, more than 6,400 people major government interventions to re- Most of the orders—such as face-mask the legislature’s spring lawsuit challeng- were diagnosed every day, according to duce the virus’ spread, President Don- requirements for certain settings, and ca- ing the stay-at-home order. state data posted on Sunday. ald Trump and many conservatives pacity limits for indoor gatherings—were The Wisconsin Supreme Court ruled Nationwide, many of the GOP law- have argued that COVID-19 isn’t that quickly replicated by the Michigan De- in May that the health department’s suits were filed earlier this year when dangerous and that public health or- partment of Health and Human Services, stay-at-home order was unenforceable COVID-19 cases were flat or declining. As ders must not hamper the economy or which under state law can issue emer- because it didn’t go through the nor- cases soar to unprecedented levels, the infringe on civil liberties such as the gency orders during an epidemic. mal rulemaking process. That process politics of public health orders may shift. right to gather for worship. But the agency also has been sued, involves approval by a Republican-con- Rising cases in states such as Indiana, In a few instances, left-leaning including by a private school and a chi- trolled legislative committee. Iowa, North Dakota and Utah are leading groups have sued governors for not doing ropractor’s office contesting its gathering Chief Justice Patience Drake Roggen- Republican governors to embrace poli- enough to slow the spread of the virus. and masking rules. “There are potential sack’s majority opinion didn’t address cies such as mask mandates and limits on In Florida, for instance, teachers in July legal vulnerabilities if the courts think Evers’ emergency powers, only those of gatherings, just as the Republican gov- sued Republican Gov. Ron DeSantis and that our public health director has gone the health department. But she included ernors of Arizona and Texas announced state education officials in a bid to block too far,” said Nicholas Bagley, a professor a word of warning: “In the case of a pan- new restrictions in response to skyrock- an emergency order requiring schools to at the University of Michigan Law School. demic, which lasts month after month, eting cases this summer. In Ohio, Repub- open their buildings for instruction in The Whitmer administration appears the Governor cannot rely on emergency lican Gov. Mike DeWine has said in recent August. The latest court ruling sided with to be leaning on the health department powers indefinitely.” days that he could order restaurants, bars the governor. to issue public health orders, for now. Since then, Evers has been sued by and gyms to close. “What you have, in essence, is The state health department on Sunday taxpayers and conservative legal groups Conservative legislators also could different philosophies on the role ordered new limitations on gatherings, over his emergency declarations and the change their tune. Republican Wisconsin of government and how danger- including prohibiting most in-person in- orders made under them, such as an order Assembly Speaker Robin Vos, who hasn’t ous this pandemic is,” Jacobson said. struction and extracurricular activities at that Wisconsinites wear masks in indoor talked to Evers in six months, told report- colleges and high schools. public places. Republican lawmakers filed ers last week that he was willing to “hit SO MANY LAWSUITS In a statement posted online, Re- a friend-of-the-court brief supporting the the reset button” and start working with This year, legislators, town officials, publican Senate Majority Leader Mike suits, one of which was heard by the Wis- the governor, according to the Milwaukee business owners, pastors, parents and Shirkey criticized the Whitmer admin- consin Supreme Court on Monday. Journal Sentinel. individuals have filed almost a thousand istration for issuing new public health Evers is now preparing pandemic And the November election results lawsuits nationwide against state coro- orders without buy-in from lawmakers. relief legislation and hoping to get the may lead to more favorable rulings for navirus policies, most challenging gov- “We are disappointed that Gov. Whitmer Whitmer: Michigan voters elected a new ernors’ executive actions, according to chose to go it alone, again,” he said. CONTINUED ON PAGE 23… 18 | LAW WEEK COLORADO COURT OPINIONS

COMPILED BY The Colorado Court of Appeals Walker’s favor and affirmed. of breach of implied warranty, negli- JESS BROVSKY-EAKER reversed this decision because “negli- Brooktree Village Homeowners Asso- gence and negligence per se. LAW WEEK COLORADO gence” should be literally interpreted ciation, Inc. v. Brooktree Village, LLC At the conclusion of an eight-day and does not mean intentional con- The Brooktree Village Townhomes’ trial, a jury found the developer and Editor’s Note: Law Week Colorado duct. The court found that the General original owner, Combest Construction, builder liable for breach of implied edits court opinion summaries for style Assembly never meant for this statute sought protection under the Bank- warranty and negligence and award- and, when necessary, length. to apply to intentional conduct, and ruptcy Code after it had completed and ed the association $1.8 million in because it is bound by the General As- sold several townhomes to residential damages. COLORADO COURT OF sembly’s legislative intent in enacting purchasers but before it could com- The jury also found that the asso- the pertinent provision, it reversed. plete construction at the development. ciation was responsible for 10% of the APPEALS After Combest’s lender took posses- damages under a comparative negli- Walker v. Ford Motor Co. sion of the development, the lender gence theory, but the jury verdict form NOV. 19, 2020 In a case stemming from a 2009 ve- conveyed the common areas to Brook- did not break down the association’s Cisneros v. Elder hicle accident in which it was discov- tree Village Homeowners Association, damages between its breach of implied In this action, Saul Cisneros sought ered that a defective driver’s seat may Inc., the development’s homeowner’s warranty and negligence claims. The money damages for having been have caused additional injury in a col- association that Combest had formed. trial court awarded the entire $1.8 mil- wrongfully held in the El Paso County lision, Ford Motor Company appealed A second developer, Brooktree lion to the association on the breach of jail after his daughter posted his bond. the district court’s award of prejudg- Village, LLC, later acquired undevel- implied warranty claim, reasoning that State and local governmental en- ment interest to Forrest Walker. The oped portions of the development comparative negligence does not apply tities in Colorado, including jails and award came after entry of an earlier other than the common areas. A con- to breach of implied warranty claims. the people who run them, are general- judgment that had been reversed on struction company affiliated with the On appeal, the developer and ly immune from being sued. Cisneros appeal. developer, Rivers Development, Inc., builder argued the trial court erred in chose to sue under the Colorado Gov- A division of the Colorado Court of completed construction of the devel- entering the judgment against them. ernmental Immunity Act, which waives Appeals considered how C.R.S. section opment. The developer sold all the Among other arguments, they raised sovereign immunity under specified 13-21-101 , which governsi interest on newly constructed townhomes to indi- an issue of first impression in Colora- circumstances. If there is not a statute personal injury money judgments, ap- vidual homeowners. do — whether the association had the that gives a right to sue a governmen- plies to a judgment obtained after the After discovering construction right to assert implied warranty claims tal entity or employee, a plaintiff’s suit previous judgment in the same case defects throughout the development, against them even though the associa- against the entity or employee must be had been overturned on appeal. The the association sued the developer tion had not acquired the common ar- dismissed. division concluded that the plaintiff and builder, claiming that portions of eas from the developer, the developer In this case, Cisneros argued that is entitled to the prejudgment inter- the builder’s construction work were never owned the common areas and a a statute that allows a suit to be est rate prescribed by section 13-21- defective. majority of the association’s members brought against El Paso County Sher- 101(1) on the amount of the new judg- The association sought damages had not purchased their townhomes iff Bill Elder for negligence also al- ment from the date the first judgment for the cost of repairing the construc- directly from the developer. lowed Elder to be sued for intentional was entered to the date the second tion defects in the common areas and A division of the Colorado Court of conduct — specifically, the decision judgment is entered. the cost of repairing the damage in one Appeals held the association had stand- to keep Cisneros imprisoned even The division held that, notwith- of the townhomes caused by construc- ing to assert the implied warranty claims. though his daughter had posted bond standing Ford’s successful prior appeal, tion defects in the common areas. Although it also held the trial court to secure his conditional release. The the district court correctly awarded pre- The association asserted the claims erred in admitting evidence regard- district court read the pertinent pro- judgment interest to Walker from the on behalf of itself and its member ing damage in one of the townhomes, vision of the CGIA to permit the suit date that his claim accrued through the homeowners, pursuant to C.R.S. sec- the division concluded the error was to go forward against Elder. date that it finally entered judgment in tion 38-33.3-302(1)(d), under theories harmless and affirmed. • NOVEMBER 23, 2020 | 19 THIS WEEK IN HISTORY

THIS WEEK IN HISTORY A Spark in Darkness

Felix Sparks’ role in WWII and the Colorado Supreme Court

JESS BROVSKY-EAKER its conclusion, Sparks edged LAW WEEK COLORADO closer and closer to Germa- ny by way of a newly liberat- Netflix on Nov. 11 launched ed France. He was among the its new series “The Liberator,” first Allied forces to enter and which retells the story of the liberate the Dachau concen- 2012 Alex Kershaw book of the tration camp. Some contro- same title. The show follows versy still surrounds that ini- Coloradan Lt. Felix Sparks as tial liberation wave as reports he leads the 157th infantry of investigations into the U.S. brigade in critical World War military’s treatment of camp II Western Theater operations, officials and stationed soldiers but it only teases Sparks’ sub- began circulating. Sparks was sequent successful law career candid at the time and in lat- in Colorado. er years about the level of up- Sparks was born in San heaval, distress and confusion Felix Sparks, depicted above in the new Netflix animated series, Antonio in 1917 and grew up on the scene. “The Liberator” went on to serve in the state’s highest court in Arizona before enlisting While Sparks’ military after returning from WWII and graduating from the University of in the Army in 1935, when he accolades and various stra- Colorado Law School in 1947. / PRESS IMAGE COURTESY OF was unable to find sustained tegic activities were detailed NETFLIX employment elsewhere at the in “The Liberator,” few knew height of the Great Depres- until the end of the series had been appointed to an un- 1969 Water Right Determina- sion. Sparks completed his that he had an entirely sepa- expired, short-term seat on tion and Administration Act, military training and returned rate claim to fame in Colora- the Supreme Court after the which divided Colorado into to Arizona where he started do with his time on the state sudden death of Justice John seven water divisions with a studying law but only finished Supreme Court and in the Clark. During that time, he water judge assigned to each. his first semester before he drafting of many of the state’s helped decide such cases as According to Plonsky’s re- was drafted to fight overseas water laws. Hill v. District Court in 1956, search, “Sparks felt it was im- molding the water laws of the portant to include language land for coming decades. reflecting that ‘the Consti- Sparks served as the di- tution guarantees a right to rector of the Colorado Water appropriate, not speculate.’ “I think he would Conservation Board and he as- To prevent speculation, a sisted with the 1958 formation proposed user must be com- have fought a duel to of the Colorado “Water Con- mitted to beneficially using gress,” according to research the water.” compiled by Kathy Plonsky, a Sparks also served in the save Colorado water research attorney at the Colo- Colorado Army National rado Supreme Court. Guard during the bulk of the “In stressing the need for 1960s and ’70s. for Coloradans.” state unity, Sparks echoed He died in Colorado of and complemented the strat- pneumonia at 90 in 2007 but egy for a unified statewide his legacy lives on in two —former Gov. Dick Lamm water program advocated by books based on his life and Congressman Wayne Aspi- military ventures, and now, nall,” said water law historian the Netflix series. in WWII. His law career finally be- Steven Schulte. “Sparks and “Colorado can never re- By 1943, Sparks found gan after he returned from Aspinall would help lead Col- pay Felix for the way he pro- himself entrenched in Allied the war, and he graduated orado toward greater unity in tected Colorado water,” said efforts to regain ground in Eu- from the University of Col- the volatile 1960s.” former Gov. Dick Lamm, ac- rope as the war raged through orado Law School in 1947. Sparks contributed to the cording to Plonsky, “I think the region. He started with His private practice in Delta, drafting of late 1960s leg- he would have fought a duel Operation Husky and later Colorado, earned him the ac- islation focused on water to save Colorado water for was one of only two survivors claim and reputation needed protection for the Upper Ba- Coloradans.” • of the “Battle of the Caves” at to secure the district attorney sin. Eventually, he provided – Jess Brovsky-Eaker, Anzio, Italy. As the war neared seat there. By 1952, Sparks input for the drafting of the [email protected]

FELIX SPARKS: 'THE LIBERATOR' 20 | LAW WEEK COLORADO ENDNOTES REPORTER’S NOTEBOOK DICTA ENTERTAINING THE EXTRANEOUS

Eyes on the AG To Be PUBLIC-PRIVATE SUMMONED BY STAYING LIQUID From Avery Martinez POWERHOUSE SAMOUR Denver’s quest for Last week, a Silicon During his presentation water began even before President-elect Joe Biden has been spend- Flatirons Center panel on professionalism, statehood. In 1867 the ing the weeks after the election slowly been of leaders discussed Colorado Supreme Court Mile High City completed the first ditch to route putting the pieces of his government into the work of public- Justice Carlos Samour private partnerships in was asked whether there’s water from a river. By place. The news has been full of possible can- 1871, still five years didates for Biden’s cabinet — particularly the Colorado’s economic anything he misses about response to COVID-19. being a trial court judge. before joining the union, next U.S. attorney general. In an example of a “I really miss talking to Denver’s first water AG William Barr has served President Ron- private sector innovation, jurors,” Samour said. companies formed. By ald Reagan in a legal capacity, and served as Alabama, a public-private “I really enjoyed the 1884 Denver had the deputy AG and attorney general under Pres- partnership allowed a interaction with juries, country’s first functional ident George H. W. Bush — making him one textile manufacturer to not only during the trial water filtration system. In of only two people in history of the country quickly change to creating but then afterwards. I 1902, the city got its first to serve as AG twice. Despite his long career disposable masks — now would always take the storage facility and built in government justice, Barr has sewn doubts the largest producer in time to go back and talk its first loch, backed up by what was then the world’s about the propriety of the DOJ. In the past few the world and the only to them and ask them one made entirely in the about what they thought largest dam, in 1905. By days, Reuters reported that U.S. investigators 1935, the Moffat Tunnel were told not to take further action against U.S.A. about their experience, and I was always was built, giving Denver Caterpillar Inc., Barr’s former client, in an PAGE 5 fascinated by those its first access to Western IRS-involved investigation including billions. conversations.” Slope Waters. Newsweek reported that another member of PAGE 10 the Presidential Commission on Law Enforce- PAGE 7 ment and the Administration of Justice had left, citing that the commission was “smoth- ered” in political agenda. Barr and Donald Trump had set up the commission last year. CNBC reported earlier this month that UPCOMING EVENTS Barr had instructed investigators to look into “substantial claims” of voting irregularities if they existed, which multiple agencies involved with the election say did not. NOV DEC DEC With eyes on Biden, the next attorney general will need to rebuild the image of the 30 1 1 Justice Department. While many Americans outside of the legal world might be unable to WHAT: WHAT: WHAT: name more than one AG at any given time, Silicon Flatirons A CDLA forum CU Law School is the position is important to the country in is hosting an discussing the hosting its annual many ways. Entrepreneurs new Colorado Austin W. Scott, Looking over any recent stories, NPR pro- duced an article laying out potential candi- Unplugged session Equal Pay for Jr. Lecture, which dates. These include Tom Perez, who currently with featured Equal Work Act will this year be runs the DNC; Deval Patrick, former Massa- entrepreneur, requirements will focused on civil chusetts governor; former Deputy Attorney Kelly Graziadei, cover the newly rights laws and General Sally Yates; and former U.S. Supreme presenting her enacted Equal the “modern Court nominee Judge Merrick Garland. startup experience Pay Transparency obstructionist The next attorney general will likely face the same scrutiny as Barr. Fox News released with F7 Ventures. Rules and how to procedure.” an article last week about one possible attor- comply with some ney general pick, “Xavier Becerra, possible WHEN: of the newest labor WHEN: Biden AG pick, once said illegal immigration 5:30 – 7 p.m. laws in Colorado. 5:30 – 6:30 p.m. should be decriminalized.” The article notes that Becerra has been a “thorn in the side” WHERE: WHEN: WHERE: of the current administration. Another arti- cle from Axios states that current New York Register at Noon – 1 p.m. Register at Gov. Andrew Cuomo was a Biden option for Siliconflatirons.org lawweb.colorado. the president-elect back in October. WHERE: edu No matter who the choice — this reporter Register online at fears silence will proceed the selection, end- cdla.org ing eventually with a roar of discontent. Only time will tell. NOVEMBER 23, 2020 | 21 CONTINUED

LOWDOWN Don Toussaint to the District Court. district court judge for the 1st Judicial The 17th Judicial District Nomi- CONTINUED FROM PAGE 3... The vacancy is effective Jan. 12. District (Gilpin and Jefferson counties). nating Commission will also meet via Hernandez is currently a part-time The 8th Judicial District Nominat- videoconference on Dec. 21, to inter- commercial litigation matters. He has magistrate in the Denver Juvenile ing Commission has nominated three view and select nominees for appoint- experience researching and drafting Court, a position she has held since candidates for a district court judge- ment by the governor to a district court pleadings, motions and memoranda in 2017. She also is a bilingual family court ship created by the retirement of Chief judgeship. The vacancy will be created various areas of law, including first-party facilitator for the Denver District Court, Judge Stephen Howard, which will oc- by the decision of voters to not retain bad faith insurance claims, risk manage- a position she has held since 2013. Pre- cur on Jan. 12. Nominees Sarah Cure Judge Tomee Crespin. The vacancy ment and complex corporate litigation. viously, Hernandez was a domestic law and Joseph Findley, both of Loveland; will occur on Jan. 12. Prior to joining the firm, Owen clerk for Justice William Hood in the and Matthew Zehe of Fort Collins were Applications are available from served as a judicial intern to Judge Ma- 2nd Judicial District; domestic law re- selected by the commission on Nov. 16. the office of the ex officio chair of the ria Teresa Fox of the Colorado Court of search fellow for Judge Christopher The governor has 15 days from Nov. nominating commission, Justice Carlos Appeals and the U.S. Attorney’s Office Cross in the 18th Judicial District; and 17 to appoint one of the nominees as Samour Jr., 2 E. 14th Ave. in Denver, and for the District of Colorado. fellow at the Institute for the Advance- 8th District judge. the office of the court executive, Patri- While in law school, Owen was a ment of the American Legal System. The 17th Judicial District Nominat- cia Kmitta, 1100 Judicial Center Drive Rothgerber Teaching Fellow for Constitu- Hernandez received a bachelor’s degree ing Commission has nominated three in Brighton. Applications also are avail- tional Law and a Research Assistant with from the University of Colorado-Boulder candidates for an Adams County court able on the court’s home page at www. a focus on the federal budget process. He and a law degree from the University of judgeship created by the retirement of courts.state.co.us/Careers/Judge.cfm received a law degree from the University Denver Sturm College of Law in 2011. Judge Sabino Romano, effective Nov. 1. Applications must be submitted by of Colorado Law School and a bachelor’s The 1st Judicial District Nominat- Nominees Courtney Dinnel of Arvada, 4 p.m. Dec. 7. Any person wishing to degree from Arizona State University. ing Commission has nominated three Madoche Jean of Westminster and Brett suggest a candidate to fill the vacancy candidates for a district court judgeship Martin of Commerce City were selected may do so by 4 p.m. Nov. 30. created by the retirement of Judge Chris during a videoconference on Nov. 18. The members of the nominating JUDICIAL Bachmeyer. The vacancy will occur on The governor has 15 days from Nov. commission for the 17th Judicial Dis- ANNOUNCEMENTS Nov. 30. Nominees Amy Cardone and 19 to appoint one of the nominees as trict are: Jennifer Chavez, Martin Gov. Jared Polis on Nov. 16 appoint- Jason Carrithers, both of Golden; and Adams County judge. Flaum, and Jennifer Hostetter, all of ed Melina Hernandez to serve on the Crystal Littrell of Arvada were selected Comments regarding any of the Westminster; Michelle Stermer and Arapahoe County Court in the 18th by the commission on Nov. 17. above nominees may be sent via e-mail Gina Weitzenkorn, both of Aurora; Judicial District. She will fill a vacancy The governor has 15 days from Nov. to the governor at gov_judicialappoint- and Jonathan Datz and Andy Kramer, created by the appointment of Judge 18 to appoint one of the nominees as [email protected]. both of Broomfield. •

EQUAL PAY or temporary positions or for automatic the next step in your [career] — you move statement of basis and purpose could be CONTINUED FROM PAGE 4... promotions within a year of hire follow- from level one to level two to level three.” interpreted in an opposite way.” ing a trial period. Federico and Mitchell both said that Mitchell noted that the statement of exceptions to the promotion posting Attorneys noted there is still some con- they are not sure the new rules make that basis and purpose says that employers requirements. Employers don’t need to fusion about whether all employees must clear and pointed to comments in the had requested that these in-line promo- notify all employees of a promotional be notified when an employee is given an accompanying statement of basis and tions be treated as exceptions to the no- opportunity if there is a need for con- in-line promotion due to career progres- purpose suggesting that other employees tification requirements but that the divi- fidentiality because the position is still sion —for example, if an employee’s title must be notified of such promotions. sion found a “blanket exception for such held by an incumbent employee who has changes from “Engineer I” to “Engineer II.” “It will be interesting to see how promotions is inconsistent with the... not yet been notified of his termination. “Arguably, that’s not a vacancy,” said Bal- that actually plays out,” Federico said. text and legislative intent” of EPEWA. • Posting is also not required for interim lard Spahr associate Jessica Federico. “It’s just “You can read the rule one way, but their —Jessica Folker, [email protected]

PUBLIC-PRIVATE PARTNERSHIP he said. In June, 90,000 continuing pacted, Padrino said. Of all Colorado about 30% have said they will need CONTINUED FROM PAGE 6... claims for unemployment insur- businesses that stopped advertising assistance with bankruptcy in the ance has reduced to roughly 40,000 on Yelp in October, roughly 55% re- near term, Padrino said. have been released since March, and — remaining constant over several ported they are closed down “perma- “This is bad — there is no oth- the impact to businesses throughout months, Peña said. nently.” In some areas providing free er way to describe it,” Peña said.• Colorado have been extraordinary, Small businesses have been im- legal services to small businesses, — Avery Martinez, [email protected]

HOSPITAL FEE ed for providing services to others that the state. The hospital assessments are Pfiffner said that TABOR Foundation CONTINUED FROM PAGE 9... they previously had to provide without “the cornerstones of how we have been attorneys are considering an appeal to any compensation.” able to achieve greater than 90 percent the supreme court. with Medicaid, it’s not a given that hos- Mulready said that Judge Michael of our population with insurance cov- The case is TABOR Foundation v. pital overhead goes up. In fact, in many Berger’s unanimous court of appeals erage over the past decade,” she said. Colorado Department of Health Care cases hospital overhead may go down decision to dismiss the case is a relief to Losing them “would certainly undercut, Policy and Financing, No. 2020COA156.• because they are now being compensat- her organization and hospitals all over if not eliminate, our ability to do that.” — Hank Lacey, [email protected]

303 CREATIVE BEST LAW FIRMS According to the Best Law Firms part of the formal submission process. CONTINUED FROM PAGE 8... CONTINUED FROM PAGE 12... announcement, the rankings are de- In Colorado, Best Law Firms veloped through client responses for demonstrates just how many er. Judge Mary Beck Briscoe noted that ognition for its land use and zoning, the Best Lawyers survey. The respons- high-level firms that are operating on plaintiffs may bring a pre-enforcement environmental litigation and con- es are then turned into quantifiable the national scale in broad practice challenge to a law if there is a credible struction law practices. data, which is used to come up with a areas or in niche practices. In Colora- threat of prosecution and asked Olson Firms are ranked in three tiers and score for each firm. From there, scores do, 435 firms appear on the Best Law what it would take to establish that are recognized on a national and re- are separated into tiers, since scores Firms list. credible threat. gional-based scale. According to Best might be too close to separate into a For comparison, Law Week Col- “I think it would take, at minimum, Law Firms, this year’s list has the distinct ranking. orado compiles a list of the 200 larg- an actual customer,” Olson said, adding highest lawyer and firm participation The Best Law Firms list, along with est firms in Colorado each year, which Smith would then have to turn down the on record, with more than 8.3 million Chambers USA, is one of the few places to runs down from local offices in the customer due to her religious beliefs. evaluations of more than 110,000 in- find a ranking of firms, not just attorneys. hundreds to firms with five or -six at “I think much of what we heard during dividual leading lawyers from more The rankings are based on an evalu- torneys. Best Law Firms’ criteria ranks [Waggoner’s] argument illustrates why than 22,000 firms. Best Law Firms ation process that includes the collec- firms with attorneys ranked by Best this case is not ripe for review. These touts that it reviewed 15,587 law firms tion of client and lawyer evaluations, Lawyers, which includes 5% of attor- are all hypothetical uncertainties about throughout the U.S. across 75 nation- peer review from leading attorneys neys. Best Law Firms finds solos as well what would happen.” • al practice areas, and 2,179 firms re- in the field, and review of additional as attorneys working in large offices.• —Jessica Folker, [email protected] ceived a national law firm ranking. information provided by law firms as — Tony Flesor, [email protected] 22 | LAW WEEK COLORADO CONTINUED

GROSS RESEVOIR are allowed to impose conditions on a application may not be accurate. The Conservation Area and more than 240 CONTINUED FROM PAGE 11... project, or deny permission to build it, question is whether this discrepancy acres of Winiger Ridge Environmental even if the state would authorize it or matters. Miller argues it does not and Conservation Area, destroy 3.9 acres succeeds in obtaining a dismissal of demand fewer or less onerous terms. should not be held against Denver Wa- of plant communities considered to be the complaint depends on wheth- The AASIA was used by Eagle Coun- ter because the utility now urges the of “local concern,” and cause a variety er the agency’s unprecedented legal ty to block the Homestake II Proj- project on grounds that it is needed of short term air quality, water quality, argument is accepted. “There’s not a ect sought by Aurora and Colorado to provide resilience to its systems. and noise impacts and possible inva- single case, ever, in the federal court Springs during the 1980s and, more “Denver has pretty robust sources, sion of non-native aquatic species. To system where a court has done what recently, by Pueblo County to force but they feel that in some climate and Miller, those local concerns probably they are asking this court to do,” Eu- Colorado Springs to substantially al- catastrophe scenarios, there can [be] loom large for Denver Water at this banks said. “It would be a very novel ter its $825 million Southern Delivery major impacts on the ability of their stage of its quest to raise Gross Dam. and peculiar precedent, given that no System. Denver sued to prevent the system to deliver,” he said. “The folks in Boulder County are go- one here is complaining about any- county from exercising its so-called The county also fears that climate ing to bear the burdens of this project thing FERC has done.” 1041 powers in an effort likely aimed change will further reduce the amount if it’s built,” he said. at preventing just such outcomes. of water from the Colorado River and “Denver Water will come with a lot BOULDER COUNTY’S 1041 Boulder County district judge Andrew its tributaries that is available for di- of ideas and they’ll have to listen. You Macdonald rejected its arguments in version. “Because Denver Water has can imagine some or many of those POWERS POSE POSSIBLE December 2019. On Sept. 21, after fil- defined the purpose and need for concerns being addressed.” BARRIER TO EXPANSION ing and then withdrawing an appeal the project to be the development of Boulder County has not announced Regardless of what the federal of Macdonald’s decision, Denver filed 18,000 acre-feet of firm yield, which is when it will consider the 1041 applica- court does, Denver Water’s plan for an application for the 1041 permit. A exactly the amount of firm yield that tion. Dale Case, the county’s director Gross Reservoir faces another legal public comment period set by Boulder an enlarged Gross Reservoir could of community planning and permit- test in Boulder County, one that has County ended on Nov. 7. hold based upon historical averages, if ting, said in an email that he does not killed and forced significant changes According to a March 2018 letter there is any diminution in stream flows expect the hearing to occur until at to other water projects in Colorado’s from Boulder County attorney Ben due to lower average annual flows, the least February or March 2021. Miller recent history. Pearlman, Denver may face some sig- preferred alternative of the expansion pointed out that, whenever the hear- In February 2019, the county nificant obstacles to obtaining the must be rejected,” the letter said. ing occurs, the commissioners will commissioners decided that Denver county commissioners’ assent to the Denver Water’s 1041 permit ap- face a complex problem. “These are Water must obtain a permit under a Moffat Collection System Project. plication does not address concerns long-term decisions, they’re going to 1974 state law that gives local gov- Pearlman argued that Denver’s ef- about need or climate change impacts have lasting impacts, and we’re living ernments the authority to regulate fort to build small storage sites in the on Western Slope water availability. in a world where there’s less and less construction of water projects. Under South Platte basin indicates the pro- It does admit that the Gross Reser- water,” he said. • that law, called the Areas and Activ- jections it supplied to FERC and that voir expansion project will inundate — Hank Lacey, [email protected] ities of State Interest Act, counties provide support for its 1041 permit portions of Winiger Gulch Potential

LABOR AND EMPLOYMENT tice,” Trim said. through an online tool. with respect to its workforce,” he CONTINUED FROM PAGE 13... As for what’s on the horizon in “The first thing that’s surprising said, from sexual harassment and labor and employment law, Trim to us is that we’re seeing that the discrimination claims to data privacy on these developments during a said he expects to see many more employers who are facing the brunt counseling to noncompete and trade regular breakfast or lunch meeting. COVID-related lawsuits make their of litigation are small employers, secret litigation. “That’s a little more difficult in this way to the courts in the next six to 12 those with 50 or fewer employees,” Along with staying on top of the environment,” he said, “but we’ve months. Some of the litigation will Greco said. A second trend is that latest COVID orders and guidance, been able to translate our educa- be over pandemic-related layoffs, he the health care industry remains a Greco predicts employment and la- tional and counseling services into a said, while others are likely to come “prime target” for COVID litigation, bor lawyers will be busy adjusting to more virtual model.” about because laws weren’t written he added, with nearly a quarter of all the changes the Biden administra- Ogletree Deakins’s annual “Man- to address a global pandemic. workplace claims filed against health tion will bring. aging a Workforce” event is one of “Most of us in the labor and em- care entities. Greco said he has been telling the biggest labor and employment ployment environment are seeing Fisher Phillips was ranked as employers to watch for a rollback seminars in the state, usually draw- how a lot of existing laws such as the a Tier 1 firm for Colorado in la- of employer rights at the National ing around 300 attendees. The firm American with Disabilities Act and bor and employment litigation and Labor Relations Board and a return was able to transition it to an online Family Medical Leave Act are being management-side employment law. to stricter workplace safety report- event featuring a live kickoff and applied to this pandemic,” Trim said, The firm’s Denver office has had an ing requirements that were relaxed several on-demand programs at- “but none of these laws were written eventful year, having completed a under Trump. He added employers tendees could watch at their leisure to deal with a pandemic in mind.” move to a new office in the middle of should expect greater scrutiny of over the course of a couple weeks. the pandemic and added two attor- their handbooks, policies and written After that, there was an online hap- TRACKING TRENDS neys, bringing the office’s total to 23. procedures. py hour where participants could Fisher Phillips regional man- According to Greco, one of the Greco said he also expects a great- ask any questions they had about aging partner Michael Greco said things that sets Fisher Phillips apart er push for federal legislation on data the programs. some trends have already emerged is the range and depth of its employ- privacy, a $15 minimum wage, pay “We were able to pivot and adapt in COVID-related employment lit- ment and labor law expertise. “We equity and expanded benefits under to the new environment and keep igation. His firm has been tracking view ourselves as one-stop shopping the Affordable Care Act. • our strong, robust counseling prac- data on pandemic-related lawsuits for an employer who has any needs —Jessica Folker, [email protected]

CYBER RISK vast incentives for mischief (so-called an immediate need may place them er-provided devices, and ensuring the CONTINUED FROM PAGE 16... “zoom bombing” and similar misbe- in tension with IT best practices. In a return and disposal of the employ- havior) along with more destructive remote work environment, IT needs er’s data now present a host of new cation is required regarding the lim- attacks. Users then needed to be ed- clear channels of communication for challenges, especially for companies itations and vulnerabilities of the or- ucated on the security controls built recognizing, confronting, and resolv- whose employees may have become ganization’s remote work solution(s). into these tools and on how to con- ing these kinds of business needs in geographically dispersed after the Are patches being distributed in a figure their use to avoid exposing the a manner that does not compromise transition to the work from home en- timely manner? Can remote access organization to these kinds of attacks. the safety and security of the organi- vironment. If the human resources be configured in a manner to increase • Maintain a firm grip over zation’s data and networks. department has not been confronted security without compromising the your IT devices and resources. “Shad- • Plan for resignations, fur- with these issues to date, then now is essential user experience? ow IT,” reflecting the deployment of loughs, and layoffs. Many organiza- the time to put together a plan. • • Understanding your organi- technological solutions outside of tions have not had to plan a meth- — Craig Blackman is co-chair of the insur- zation’s remote tools is important. the purview of the IT department, is a od for handling employee departures ance section and Peter Bogdasarian is counsel The sudden transition of the work- greater threat than usual in a remote outside of the normal office environ- at Stradley Ronon. Rachel Ortiz was a summer force to reliance on online confer- work environment because the temp- ment. Terminating employee access associate in the firm’s Philadelphia office. Article ence and collaboration tools created tation for users to find a solution to to the network, retrieving employ- distributed by Mondaq. NOVEMBER 23, 2020 | 23 CONTINUED

CONSTRUCTION ate some optimism for Colorado specifical- completely remote over five-days in the pect to that as well.” CONTINUED FROM PAGE 14... ly,” Sekich said. For industrial real estate, Denver District Court. Retail and hospitality has seen the im- the past nine months have been marked “The civil practice has been disrupt- pacts of the pandemic as well. Boelens said of 2008. Then, matters coming into the by an acceleration in trends of real estate ed, but is continuing,” Gurr said. With the every deal she has was worked on in that office involved a lot of litigation — most- and construction seen in the past five to 10 announcements of trials being vacated at space since March has died. ly relating to failed projects, collapsed years, Sekich said: an acceleration in new many other levels, Gurr said both parties A learning curve did exist at the start companies and unpaid situations. In the models of distribution of goods and logis- need to find other paths to resolution and of COVID in construction, Ninneman said. current downturn, banks are still lending tics driven by some large players. still working to achieve that aim. “The court The brakes were pumped to see what might money, developers proceed with new proj- In his practice, Sekich was surprised system has found a way through.” come next. After the first couple of months, ects and people are offloading real estate that COVID had not been more of an in- Gurr and BCLP head of real estate the type of force majeure impacts and safe- and land available for use. “We continue terruption. While it’s difficult to know what Heather Boelens, collaborate often on ty impacts would truly cause a slowdown to see that front-end transactional work December might look like, he said he be- clients and the construction and devel- or continue to work in the environment coming through the front door,” he said. lieves the current successes are due to gen- opment of the real estate development — keep everyone safe — and deliver on the This ranges from real estate contracts eral contractors with decades of experience around the country. Nationally, in terms of construction and design. developed to the general contractor con- deploying procedures and processes in de- real estate, BCPL focuses on industrial work “And we’re able to do that,” he said, via tracts and indicates that things are con- livering client projects. in deals often reaching over $1 billion, Gurr measures taken with working from home tinuing to move forward. “I think it really is a testament to the said. She agreed with Gurr that construc- to construction contractors learning best The work that continues to fuel the real good work the contractors have been put- tion is still hot, especially in industrial and approaching sequencing projects to as- estate world have driven growth, rather ting in,” he said, adding he was amazed multi-family — and she doesn’t see a slow- sure safety. than retraction within the industry. Dom- by the capability and carefully GC work down happening at any time in the near fu- “We just continue to see more momen- inick Sekich’s real estate practice at Moye has been — mitigating employees and ture. Leasing has taken a turn for the worse tum moving through those projects.” White, another U.S. News Best Law Firm risk to project. since the start of COVID, she said, adding Throughout his practice, Sekich said designee, stretches over 30 years, and over In litigation, the work has continued she works on many different forms of leas- he’s gone through the dot-com bubble, the the past decade has come to focus on indus- as well, despite COVID-19 disruptions to ing across the gamut, noting the downturn downturn in 2008, and now the pandemic trial real estate. He said his work has grown the courts, said Steve Gurr, head of litiga- in office leasing. — but it feels different. over the past year. Moye White’s real estate tion at Bryan Cave Leighton Paisner who “I’m not sure what will change in the “The downturn feels transitory and im- practice has grown through the addition of specializes in construction litigation and office world post-COVID. I think we’ll see a permanent,” Sekich said. The economy of four attorneys since the start of COVID. contracts. His practice includes litigation lot of companies downsizing, realizing they both Colorado and the country has remained “What we’re seeing in Colorado is a re- of construction and real estate disputes were able to survive with a lot of their folks strong, and Colorado’s appeal to compa- flection seen in the U.S. generally — with and typically involves a couple trials a year. working from home,” she said. nies and employees alike will continue.• some very bright and differences that cre- He has one starting on Nov. 30 that will be “I also think there’s a generational as- — Avery Martinez, [email protected]

GOVERNORS to public health mandates. view with a local paper that the election cine Journal Times reported. “This [vote] CONTINUED FROM PAGE 17... Voters again elected Republican ma- results show voters have rejected Evers’ is repudiation of Tony Evers’ leadership jorities to both the state Assembly and approach to the pandemic. style. … He abjectly failed.” • legislature on board. As in Michigan, it’s Senate this year. After his re-election “He’s sitting in his basement, not un- — Sophie Quinton, distributed by Stateline, an unclear whether Republicans will agree earlier this month, Vos said in an inter- like Joe Biden,” Vos said of Evers, the Ra- initiative of the Pew Charitable Trusts.

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JANUARY FEBRUARY MARCH 01/06 | Lawyers of the Year 02/03 | Business of Law 03/02 | Government & Judiciary 2019 02/10 | New Partners 03/09 | Top Litigators* 01/13 | Legislative Look Ahead 02/17 | Big Deals Q4 2019* 03/16 | Immigration & Security 01/20 | Personal Injury/Medical Malpractice 02/24 | Top Verdicts for 2019 03/23 | Legal Entrepreneurs/ Solo Firms 01/27 | Spotlight on Corporate Counsel 03/30 | Q1 Managing Partner Roundtable

APRIL MAY JUNE 04/06 | Construction/Real 05/04 | Intellectual Property 06/01 | Legislative Wrap-Up* Estate 05/11 | Diversity in Focus 06/08 | Top Women/Women’s 04/13 | Marijuana Law Roundtable 05/18 | Super Lawyers 04/20 | Health Care Law 06/15 | Startups/Business in 05/25 | Health Care Law Colorado 04/27 | Cybersecurity and Privacy 06/22 | Family Law 06/29 | Appellate Review

JULY AUGUST SEPTEMBER 07/06 | Q2 Managing Partner 08/03 | Labor and Employment 09/07 | Legal Education Roundtable 08/10 | Gaming Law 09/14 | Q3 Managing Partner 07/13 | Chambers USA Roundtable 08/17 | Big Deals Q2* 07/20 | Outstanding Legal 09/21 | Best Lawyers Professionals 08/24 | Technology in Law 09/28 | Attorney Wellness 07/27 | Energy & Natural 08/31 | Criminal Law Resources

OCTOBER NOVEMBER DECEMBER 10/05 | Up and Coming 11/02 | Specialty Bar 12/07 | Colorado 200** Lawyers Associations 12/14 | Trends for 2021 10/12 | New Lawyers 11/09 | Barrister’s Best* 12/21 | Q4 Managing Partner 10/19 | Pro Bono 11/16 | Public Sector Law Roundtable 10/26 | Specialty Practice 11/23 | Best Law Firms 12/28 | Year in Review 11/30 | Big Deals Q3*

* Will be rescheduled ** Some editorial features are based on survey results. Surveys are scheduled to close five weeks before the publication date. View all 2020 surveys online at www.LawWeekOnline.com/surveys