The Department of Homeland Security has backed off its recommendation to effectively bar the public from attending a former immigration agent’s administrative hearing in Denver. “The agency wholeheartedly believes that this matter should be open to the public,” wrote the agency’s attorney Robert Erbe in papers filed with the administrative court Tuesday, according to The Denver Post.

By Matt Masich, STATE BILL COLORADO
A lawsuit against the state challenging the adequacy of school funding may go to trial, a divided Colorado Supreme Court ruled today. The case is Lobato v. Colorado.
The plaintiffs, school districts and students’ parents, allege that the current funding scheme violates the state constitution’s requirement that funding be “thorough and uniform.” If the lawsuit is successful, the state could be held liable for an addition $630 million a year for public schools.
“This decision is not good news for the Colorado taxpayer,” said Attorney General John Suthers, who represented the state. “The majority opinion suggests the plaintiffs, who are seeking additional tax funding that could potentially involve billions of dollars, might find relief from the courts even though the legislature and the voters have determined current educational funding is adequate.”
The high court’s vote was 4-3.
Justice Michael Bender wrote for the majority; Justice Nancy Rice wrote the dissenting opinion, with Justices Nathan Coats and Allison Eid joining the dissent.
Representing the school districts and parents were Alexander Halpern, Michelle Murphy and Jennifer Albert Morgan of Alexander Halpern LLC, and Kathleen Gebhart of Kathleen Gebhart LLC. Representing the state were Suthers, Dan Domenico and Antony Dyl of the attorney general’s office. There were also numerous amici curiae filed.

Lobato

The Equal Employment Opportunity Commission has filed a lawsuit against Dillon Companies Inc., operator of the King Soopers supermarket chain in Colorado, alleging it discriminated against a learning-disabled employee at a Lakewood store, the Denver Business Journal reports.

By Peter Marcus, DENVER DAILY NEWS
Colorado scored $3.5 million after drug giant Pfizer Inc plead guilty to a criminal charge related to promotion of a now-withdrawn pain medicine and several other drugs.
The total multi-state settlement was for more than $2.3 billion, including a $1.3 billion criminal fine and a $1 billion civil payment.
The world’s largest drugmaker plead guilty to charges related to its pitching Bextra and 12 other medicines to patients and doctors for unapproved uses.
“These settlements are a significant recovery for the State of Colorado,” said Colorado Attorney General John Suthers. “These settlements underline that Colorado and its peer states will not tolerate off-label marketing schemes that place a drain on the heath care our states provide for the neediest of our residents and expose patients to potentially serious side effects from drugs that are not being prescribed as approved.”

Repeat offender
The settlement makes Pfizer a repeat offender after in 2004 the drug giant plead guilty to an earlier criminal charge of improper sales tactics and practices.
Colorado will receive the $3.5 million as part of two settlements — $2.8 million as part of the $1 billion Medicaid multi-state settlement and $705,000 as part of a $33 million non-Medicaid multi-state settlement.
Pfizer promoted Bextra for unapproved medical conditions and dosages, and promoted the drug Geodon for pediatric and adolescent patients for whom the FDA had only approved the drug for the treatment of schizophrenia and manic or mixed episodes of bipolar disorder in adults, to name a couple of the details of the settlement.
The federal settlement includes a $1.3 billion criminal fine related to methods of selling Bextra, which was withdrawn from the market in 2005 over safety concerns. Pfizer acquired Bextra in its 2003 purchase of Pharmacia Corp.

Promotion tactics
The two companies used advisory boards, consultant meetings and provided travel to lavish resorts to improperly promote Bextra to doctors and made misleading claims about the drug’s safety and efficacy, the federal government said. The companies also paid kickbacks to persuade doctors to prescribe the drugs.
“We regret certain actions taken in the past, but are proud of the action we’ve taken to strengthen our internal controls,” Amy Schulman, Pfizer’s general counsel, said in a prepared statement.
The settlement marks the largest Medicaid pharmaceutical settlement in history, topping the $1.42 billion Eli Lilly and Co settlement earlier this year for off-label sales of its Zyprexa schizophrenia drug.
Pfizer said it will pay $503 million to resolve practices involving Bextra, $301 million related to its schizophrenia drug Geodon, $98 million for Zyvox and about $50 million for its blockbuster Lyrica used to treat nerve pain and seizures.
The $33 million non-Medicaid settlement is in addition to the $2.3 billion federal fine; it aims to resolve state civil consumer fraud allegations with 42 states and the District of Columbia related to promotions of Geodon.
Six whistleblowers will be rewarded with more than $102 million under the False Claims Act. John Kopchinski, a former sales representative who exposed Pfizer’s Bextra marketing tactics, will be paid more than $51.5 million.
Pfizer will be required to adhere to five more years of the government’s compliance program as a result of the plea. Due to the 2004 case, the drug giant has already been under federal supervision for the past five years.
The company will be required to post on its Web site information about payments to doctors such as travel, and set up a system for doctors to report questionable conduct by Pfizer’s representatives.
Pfizer shares fell 10 cents, or 0.6 percent, to close at $16.28 on the New York Stock Exchange.

Distributed by Colorado Capitol Reporters

20090903_PfizerAnnouncement

By Matt Masich, LAW WEEK COLORADO
DENVER — The very first people who invested in Keystone Ski Resort in 1969 got a pretty sweet perk. Along with their shares of Keystone stock, the 33 investors were each given five lifetime ski passes for their $25,000 investments.
And the lifetime passes weren’t just for the person whose names were on them — they could be loaned to other people or sold and permanently reassigned, though they would still only be valid for the lifetime of the original owner.
It didn’t take long for the holders of these transferable passes to realize they could make money renting them to skiers and snowboarders, charging about 10 percent less than the going rate for lift tickets. This went on for over three decades, with some lifetime pass owners making thousands of dollars a year. But those days are over.
In 2006, Vail Resorts, which bought Keystone from Ralston-Purina in 1996, announced it would stop honoring rented lifetime passes. This came as a shock to pass owners.
Tony Snyder, who along with his family had purchased 14 lifetime passes to rent out, said he was “surprised and angry” when he heard what Vail had done. 
“We had openly rented the passes for years,” Snyder said. “The rental of these passes [was] to be a financial component of our retirement.”
Snyder and more than 20 other pass owners are suing Vail for violating the lifetime pass agreement. When Snyder v. Vail Resorts, Inc. goes to trial in Summit County District Court in Breckenridge on Sept. 21, the plaintiffs will be seeking damages or an injunction forcing the resort to honor rented passes, or both. Judge Karen Romeo is to preside over the two-week trial.
“They issued these lifetime transferrable passes without imposing any limitations on to whom or the conditions under which they could be transferred,” said Reid Neureiter of Jacobs Chase Frick Kleinkopf & Kelley, who along with colleague Kathryn Reilly is representing the plaintiffs.
“For them [Vail] to say — 35 years after the fact — ‘Oh, and we’ve got a new rule: You can’t receive anything of value if you give your pass to somebody’ is not fair and is a breach of the original agreement.”
Vail, in addition to the ban on renting, also started requiring pass owners to send in or fax a transfer form when they lend passes to others, even if it’s given for free. Pass owners see this as an intentional move to discourage the transfer of passes. Vail has also said that it has no legal obligation to honor the Keystone lifetime passes at all in any situation, Neureiter said, though for the time being it will continue honoring them.
“That, in my view, is just retaliatory conduct by somebody that’s never disputed their obligation to honor these passes,” Neureiter said.
Michael Hofmann of Holme Roberts & Owen, Vail’s attorney in the case, declined comment. Vail spokeswoman Kelly Ladyga also declined comment, other than to say, “We will always vigorously defend our rights when others abuse their privileges.”
The 24 plaintiffs listed in the case are seeking damages to compensate for the money they could have made renting the 32 passes they own. Because the amount of time that a pass is valid is tied to the lifetime of the original owner, the damages sought for each pass vary depending how long that person is expected to live.
In some cases, the passes were originally assigned to investors’ grandchildren, who are in their 40s now and could easily live another 30 or more years.
A lifetime pass could bring its owner more than $8,000 a year at today’s lift ticket rates. Without accounting for inflation and lift ticket price increases, that translates to nearly a quarter million dollars over 30 years.
Some of the plaintiffs are also seeking exemplary damages.

Weld County

iPhone Lawsuit

By Gene Davis, DENVER DAILY NEWS
A Colorado man is putting his cards on the table in hopes that the Colorado Supreme Court will determine that tournament style Texas Hold ’em poker is predominantly a game of skill, which would make the popular pastime legal throughout the state.
Kevin Raley is looking to appeal a district court’s ruling that poker is considered gambling under Colorado law, the Poker Players Alliance (PPA) — a poker grassroots advocacy group — announced yesterday. A Weld County District Court judge ruled that poker is gambling because of the element of chance involved with the dealing of the cards. If tournament style Texas Hold’ em were to be considered a game of skill, it would not be considered gambling and could be legally played in tournaments throughout Colorado.
“The PPA is going to do everything in its power to support Mr. Raley’s efforts in order to protect PPA members and all poker players in the state of Colorado,” said a statement from Gary Reed, PPA’s Colorado state director. “I am especially alarmed because this ruling ignores the abundance of research that proves poker is a game of skill and confuses rather than clarifies the matter for law enforcement that may use their scarce resources to raid and arrest poker players instead of investigating real unlawful activity in the state.”
The Colorado Gaming Association (CGA), however, says the judge made the right decision in its ruling.
“Our position is that poker and blackjack are games of chance; therefore, they’re illegal outside of the three limited gaming towns,” said CGA executive director Lois Rice. “Just the sheer dealing of the cards is a random act. That’s why we consider it a game of chance more than a game of skill.”

Stung
Raley was one of five people charged with Professional Gambling, a class one misdemeanor, in a sting operation last year. Raley had organized a private poker club at a Greeley bar to play tournament style Texas Hold ’em. An undercover officer busted the tournament, resulting in the charges.
A jury found Raley not guilty of the gambling charges at the beginning of the year. During Raley’s trial, Professor Robert Hannum — a statistics professor at the University of Denver — argued that statistics prove that poker is a game of skill.
After the case ended, the Weld County district attorney appealed the ruling, saying that Hannum’s testimony shouldn’t have been allowed because Colorado courts have already concluded that, as a matter of law, poker is gambling. The district court sided with the district attorney. Although the court’s decision did not overturn the jury’s not guilty verdict, it did overturn the trial judge’s decision to allow Hannum to testify, putting the future of poker in Colorado in legal limbo, according to PPA.
“We clearly think this is the wrong interpretation of the law,” said PPA executive director John Pappas in a statement.

Gambling or skill?
Legal experts are split over the “gambling versus skill” debate.
Anthony Cabot, a Vegas lawyer who specializes in gaming, said empirical evidence proves that forms of poker like Texas Hold’ em are skill-based games. The fact that professional poker players often end up winning or ranking high in multiple tournaments means the game takes more skill than luck, he said.
Although there is some skill involved, a rookie can beat a professional poker player on select hands if they get the right cards, proving that the game is predominately luck based, countered David Stewart, another lawyer who specializes in gaming issues.
“I would be very surprised if a major court was to support (Raley’s) argument,” he said.
The PPA has aligned itself with offshore poker — the multimillion-dollar industry that was crippled by a 2006 piece of legislation — and is pushing to get poker legalized on the grassroots level in hopes of expanding that momentum nationwide, according to Stewart. While Stewart said the PPA has “very weak support,” Cabot said more and more people are starting to understand the skill involved in poker.
If Raley’s case goes before the Colorado Supreme Court, it will likely come down to the skill of the lawyers and the arguments presented, according to Cabot.
“There are a quite a bit of aspects for Texas Hold’ em that have tremendous skill involved in them,” he said. “But, obviously, there is also chance involved. The question is, which predominates the other?”

Distributed by Colorado Capitol Reporters

 
Video: KDVR

The family that started a fire storm of controversy over their flammable water in rural Weld County has settled their claims with one oil company and is no longer speaking publicly about the contamination, Heidi Hemmat reports.

Mark Brennan and Kim Ikeler interact during Brennan’s disciplinary hearing last week in Denver.

Video: Law Week Colorado

By Matt Masich, LAW WEEK COLORADO
DENVER — The disciplinary hearing for Centennial attorney Mark E. Brennan became physical during closing arguments on the third and final day, when Brennan shoved and then glowered at Office of Attorney Regulation Counsel prosecutor Kim Ikeler.
Ikeler’s boss, John Gleason, said Monday that his office is considering filing with the Denver District Attorney’s office a criminal complaint against Brennan over the incident, which was caught on camera by Law Week Colorado.
Gleason’s office on Friday asked to review Law Week’s unedited videotape, but Managing Editor Cara DeGette denied the request. DeGette said relevant portions of the edited tape would ultimately be posted online for all to see.
That video accompanies this story.
The altercation occurred 6:20 p.m. Thursday when Brennan was speaking.
Here’s what followed:
* Ikeler got up from his chair and approached the podium to make an objection. On the first day of the trial, Presiding Disciplinary Judge William Lucero instructed Ikeler not to do this.
* Brennan, who had several times expressed his contempt for Ikeler, was pointing with his arm outstretched to his side when Ikeler approached him from behind. Brennan’s arm effectively barred Ikeler from walking any further. Brennan’s arm and Ikeler’s chest then came into contact, after which it appeared that Brennan pushed Ikeler back.
* Brennan next turned to face Ikeler, glaring intently at him for several seconds, then pointing his finger and shaking his head.
* Lucero called for order. “This is not trial by combat,” he said.
* Brennan then told the hearing panel that Ikeler had deliberately provoked him by violating Lucero’s order not to approach the podium when making objections. Brennan also referred to Ikeler as a “piece of sh-t.”
After the altercation, OARC staff in the audience summoned security personnel, who monitored the remainder of the trial.
In an e-mail to Law Week, Brennan gave his side of the story: “I did not shove Ikeler, but put out my hand as I faced the bench and he approached from behind, against which he pushed unsuccessfully. He assaulted me, in violation of repeated court orders that he stay away from me. He did so to provoke me. I then turned after he backed off, and told him to get away from me.”
The altercation and subsequent release of video calls to mind last year’s kicking incident by then-Rep. Douglas Bruce of a then-Rocky Mountain News photographer. In both cases, the videotape produced conflicting interpretations of what occurred.
Brennan is representing himself against allegations that his behavior in a 2006 civil trial in Colorado’s federal court violated the Colorado Rules of Professional Conduct. Gleason’s office asked a three-judge disciplinary panel that Brennan be suspended as a result.
While Gleason said OARC is considering filing the DA’s complaint against Brennan for allegedly shoving Ikeler, he said his office isn’t planning to bring any more attorney misconduct complaints because of it. Brennan’s e-mail to Law Week did not indicate whether he will pursue assault charges against Ikeler.

Distributed by Colorado Capitol Reporters