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The When, What and How of Litigation Holds

In 2003, “litigation holds” became one of the hottest topics in e-discovery. This shift was due to United States District Court Judge Shira A. Scheindlin’s decisions in Zubulake v. UBS Warburg. Looked at collectively, the judge made clear that, once a party reasonably anticipates litigation, it must take special actions to preserve relevant electronic evidence.  Colorado courts take the same approach. See, e.g., Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir. 2009)(duty to preserve evidence arises when party "knew, or should have known, that litigation was imminent").

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158 Hits

Can Relators Take Advantage of Lengthened Statute of Limitations in False Claims Act Qui Tam Cases

A recent 11th Circuit opinion held that False Claims Act (FCA) relators can invoke a three-year statute of limitations measured from when the government receives notice of the violation, even in a case in which the government declines to intervene.

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170 Hits

Five Ogborn Mihm, LLP attorneys named to 2019 Best Lawyers list

Ogborn Mihm, LLP is pleased to announce five lawyers have been included in the 2019 Edition of The Best Lawyers in America.

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284 Hits

Whistleblower Retaliation After Genberg v. Porter and Digital Realty v. Somers

Appellate Victory in Sarbanes-Oxley Act Whistleblower Case More Important Now, After SCOTUS Decision in Digital Realty

On February 21, 2018, the Supreme Court issued its opinion in Digital Realty Trust v. Somers, Case No. 16-1276, -- US – (2018), holding that in order to be protected from retaliation for internal reporting under the Dodd-Frank Act’s Section 21F as a “whistleblower,” which is defined in the statute, the individual must have first made a disclosure to the SEC under the Act’s bounty system. While the decision was not the death blow to Chevron deference that some expected, given Justice Gorsuch’s apparent hatred of the doctrine, it was a significant limitation on the protections for whistleblowers.

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449 Hits

EXECUTIVE AWARDED $1.26M FOR BREACH OF EMPLOYMENT CONTRACT

An El Paso County jury has awarded the former COO and President of a Colorado Springs based physical therapy training company $1.26 million, agreeing that the company had breached its employment contract with the executive and that the founder breached his promise to give one third of the company to the executive.

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280 Hits

Eight Ogborn Mihm attorneys have been selected by their peers to be listed as 2018 Colorado Super Lawyers and Rising Stars

The firm’s Colorado Super Lawyers are Murray Ogborn for personal injury plaintiffs; Michael Mihm for professional liability plaintiffs; Mike Ogborn for business litigation; Susie Hardie Jacks for bankruptcy, and Thomas Neville for business litigation.

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376 Hits

Ogborn Mihm Clients Dave and Amanda Repsher Settle Helicopter Crash Case

Flight Nurse Dave Repsher Settles Helicopter Crash Case

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632 Hits

Fiduciary Duties Involved in Colorado Businesses; Part I - The Basics

Colorado offers a lifestyle that is attractive to many new businesses, and in recent years, we have seen an influx of residents and start-ups seeking to take advantage of all this state has to offer. But business people—and particularly friends entering into business on a handshake or “back-of-the-napkin” deal—should take care to draft business agreements up front in order to avoid the lawsuits that may ensue when disputes arise down the line. One particular area of concern that often times leads to the break-up of a business is a breach of fiduciary duty. But what is a fiduciary duty and how do you know if you are violating it? This series will first address the basics of fiduciary duties, the sources from which those duties come, and the enforcement of those duties. Then, each subsequent Part will address what those duties entail in relation to a partnership, limited liability company, and corporation.

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1184 Hits

Competing with Non-Compete Provisions

You are married to your job. You are what you do. There is truth to the idea that we all identify ourselves with the profession we have chosen. So, what happens when someone tries to limit your ability to do that job? Most often, these limitations are presented in the form of a non-compete clause in a contract. Colorado does not look favorably on restricting competition or a person’s ability to work, and our legislature enacted law that defines very narrow exceptions to the general rule that covenants not to compete are void. Colorado Revised Statute Section 8-2-113 states that a contractual restriction on a person’s ability to perform “skilled or unskilled labor for any employer” is automatically unenforceable unless it falls into one of four categories.

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728 Hits

Lawson v. FMR: Private Contractors of Public Companies Fall Within SOX Anti-Retaliation Provision

 

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1061 Hits

Court Enforces Arbitration Agreement in Dodd-Frank Act Retaliation Case

The court in Wussow v. Bruker Corp., decided on June 28, 2017, ruled that whistleblower claims brought under the Dodd-Frank Act are subject to mandatory arbitration. 

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928 Hits

Free Webinar on July 28th to Celebrate Whistleblower Appreciation Day

Join whistleblower attorney Clayton Wire and the law firm Ogborn Mihm LLP on July 28th at 12:00 pm MST at ilovewhistleblowers.com for a free webinar: Whistleblower Protections & Incentives.

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1001 Hits

Jury Awards Whistleblower Over $25 Million in Sarbanes-Oxley Retaliation Case

In April, a Los Angeles County jury awarded $22.4 million in punitive damages (that was later reduced to $2.27 million) along with $2.7 million in lost past and future wages to Steven Babyak in a whistleblower retaliation and wrongful termination case against Cardiovascular Systems, Inc (CSI). Babyak, a former sales manager for the company, argued that he was retaliated against, culminating in termination, after making complaints about a hostile work environment and violations of the Anti-Kickback Act and securities laws under the Sarbanes-Oxley Act. The

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3158 Hits

SpaceX cleared in $6 Million Whistleblower Lawsuit for Wrongful Termination in Violation of Public Policy

On June 7, 2017, a jury decided in favor of Space Exploration Technologies Corp. after an 8 day trial to determine whether Jason Blasdell had been wrongfully terminated in violation of public policy. Blasdell claimed he was fired after raising concerns about SpaceX’s compliance with 18 U.S.C. Section 38, a federal statute prohibiting fraud against a customer involving aircraft or space vehicle parts. The former Avionics Test Technician working on the Falcon 9 rocket and Dragon spacecraft alleged that he had been wrongfully terminated after voicing concerns about the falsification of test results following safety testing and misrepresentations in connection with SpaceX’s multi-billion dollar contracts with customers including NASA. Specifically, Blasdell claimed that managers told him to sign off on parts quality regardless of whether he could verify their compliance with protocol. Blasdell claims he voiced his concerns to management, as far up as SpaceX President Gwen Shotwell and CEO Elon Musk. 

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970 Hits

New York Appellate Court Adopts Broad Causation Standard in Legal Malpractice Case

Generally, in a legal malpractice case the plaintiff must prove that it would have achieved a better result, but for the attorney’s malpractice. In the litigation context, this means that the plaintiff must prove that it would have succeeded on the underlying claim or defense, but for the attorney negligence, often referred to as proving the “case within the case.” In the transactional context, the plaintiff often uses the “better deal, no deal” dichotomy to prove causation. Under the “no deal” prong, the plaintiff can prove causation by establishing that, but for the attorney negligence, it would have achieved a better result had it not entered into the transaction at issue. Alternatively, under the “better deal” prong, the plaintiff can succeed by proving that, but for the legal malpractice, it would have achieved a better result through a better and different “deal” or agreement than the transaction at issue. A New York appellate court in Leggiadro, Ltd. V. Winston & Strawn applied a broad and plaintiff friendly interpretation of the “better deal” prong of this causation paradigm.

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1209 Hits

Supreme Court to Determine Scope of Protected Activity Under Dodd-Frank Act

Attorney Clayton Wire has recently published a blog post on WhistleblowerBlawg.com regarding the Supreme Court’s grant of certiorari in Digital Realty v. Somers, to resolve a circuit split over whether a whistleblower must first report to the SEC before being entitled to protection under the Dodd-Frank Act’s anti-retaliation provision. Click here to read the full post. 

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776 Hits

Protections for Whistleblowers in Colorado

Generally, in Colorado, an employee who is hired for an indefinite amount of time is considered an at-will employee, meaning employment may be terminated by either the employee or the employer with no notice for any reason or no reason at all. However, Colorado has some protections against whistleblower retaliation for employees in both the public and private sectors.

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1664 Hits

Commodity Futures Trading Commission Strengthens Whistleblower Program

On May 22, 2017, the U.S. Commodity Futures Trading Commission (CFTC) adopted amendments to its whistleblower rules, continuing its three-year effort to strengthen the commission’s whistleblower program and its ability to protect whistleblowers from employer retaliation. The amendments expand the commission’s ability to pursue retaliation claims on behalf of whistleblowers and prohibit confidentiality agreements that interfere with whistleblowers’ communications with the CFTC.

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852 Hits

False Claims Act Whistleblowers Protected Even Without a Successful Qui Tam Lawsuit

The False Claims Act contains a newly broadened anti-retaliation provision that protects whistleblowers who take actions in furtherance of a Qui Tam action, or in an attempt to stop one or more violations of the False Claims Act. This essentially means that employees and others are protected when they collect information in preparation for a Qui Tam lawsuit as a relator, and when they internally blow-the-whistle on what they reasonably believe to be violations of the FCA. Importantly, courts have clarified that generally whistleblowers need not be correct in their reasonable belief, in order to be protected from retaliation.

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  2019 Hits
2019 Hits

Bio-Rad Whistleblower Protected for “Reasonable” Incorrect Claim

After only three hours of deliberation, a federal jury in San Francisco determined that Bio- Rad, a life science company, retaliated against its former General Counsel, Sanford Wadler, for reporting violations of the Foreign Corrupt Practices Act (FCPA). Wadler alleged he was fired for reporting possible FCPA violations after he found documents showing Bio-Rad’s distribution of free products in China. Wadler was fired from the company in June 2013.

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1004 Hits
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