The reason a group of residents pleaded with legislators to
hold an HOA Town Hall early in April was that one of the few regulatory
measures the Colorado legislature has applied to HOAs (Home Owner Associations)
is that the property managers (community association managers, or CAMS) hired
to run them must be licensed, and that licensing law, sunsetting July 19, 2019,
was up for discussion and vote mid-April. State senators Nancy Todd and Rhonda
Fields and state representatives Mike Weissman and Janet Buckner not only
agreed to hold the HOA Town Hall on April 6, 2019, but assembled a panel of
experts for the event. Well over 100 residents attended, writing their questions
down on the 3×5 cards provided by the four legislators, who assured the
standing-room-only crowd that the cards would be kept and studied. “The
result,” said Weissman, “would be a document we will all share widely.”
Capacity Crowd: Over 100 HOA homeowners showed up for the April 6 HOA Town Hall at Heather Gardens. Most of their requests focused on: 1) more disclosure and transparency for costs such as home sale transfer fees; 2) a way to settle disputes between homeowners and their HOAs that does not involve going to court; and 3) legislative support for the above. Many expressed disbelief that solutions to these problems could be so difficult.
The panelists — attorneys Suzanne Leff and Brian Matise;
Jefferey Riester, from the state HOA office; realtor Jim Smith and homeowner
advocate Stan Hrincevich — barely made a dent in the pile of cards, most of
which voiced concern about, as a longtime Denver realtor put it, “moral and ethical
transgressions” by the very entities supposedly there to support homeowners.
When one homeowner complained that her management company refused to give her
the financial records she’d requested — and Leff, a partner at Winzenburg,
Leff, Purvis & Payne, assured the woman she has a “perfect right under the
law to those records” and suggested something the woman had already done (put
the request in writing) the audience groaned in unison.
‘I know, I know,” empathized Leff. “But I urge you to use
those avenues … when communities work well it is wonderful. I want communities
to work!”
Discussion: Senator Nancy Todd and homeowner advocate Stan Hrincevich discuss the possibility of putting enforcement capabilities into the state HOA office.
If a partner in a law firm that “practices community
association law on a daily basis” wants HOA communities to work — if
legislators, as they asserted, want HOAs to work better for homeowners — and if
homeowners desperately want their communities to work — then what is the
problem?
Up To You
One step in the direction of making HOA communities work
better was the establishment, in 2011, of the Colorado HOA Information &
Resource Center, under the Department of Regulatory Agencies (DORA). This
office was originally conceived as an ombudsman, or advocate for homeowners.
Now, explained Riester, Director of Legislative Affairs for that office, “we
provide information, tell homeowners what rights they have under the law,
accept complaints and compile those complaints in a report that goes to the
General Assembly.”
“When we file a complaint with your office, it doesn’t go
anywhere,” said an older gentleman.
“At this time,” Riester said, “there are no bills that would
increase the teeth of this office to enforce complaints.”
“Short of filing suit, where can homeowners go?” asked the
gentleman.
“We don’t provide legal advice,” Reister said. “Just: these
are the facts, now it’s up to you to do what you have to do.
“Our department is currently up for sunset review,” he
added. “So please, if you think the office should have more teeth, give input.”
Hrincevich, who founded Colorado HOA Forum five years ago to
“improve HOA governance through legislative reform,” took the mic.
“Here is what you’re not being told,” he began.
Bunk
“When the HOA office was created, the law provided for that
office to investigate complaints,” Hrincevich said. “Right before the law was
complete, that was taken out.
Colorado HOA: Five years ago, Stan Hrincevich founded a homeowner advocacy group, Colorado HOA Forum, whose membership consists mostly of homeowners from Colorado’s HOAs but includes homeowners from eight other states.
“Then in 2013 the CO legislature directed a study of HOAs in
Colorado. The [resultant] study recommended that the HOA Office install out of
court dispute resolution process for homeowners.”
“You have to be very careful with alternate dispute
resolution,” interjected Matise, whose practice at BurgSimpson includes general
counsel for homeowner associations. “It would be expensive.”
“That is bunk,” Hrincevich said. “It’s bunk to say it would
cost money or be too hard. All the groundwork has been laid. Don’t need a
committee. Don’t need any further studies. We keep riding politicians to do
what the 2013 study recommended. But they ignore us.”
Profit Center
The discussion touched on various subjects like street
jurisdiction (HOAs or city?) and disabled parking spots (how to get one), to
which the panel had various, legalese-laden answers, but when the subject of
Transfer Fees arose, there was no ambiguity. Panelists and residents agreed
that the fees management companies charge for an HOA home sale were excessive
and unjustified. Jim Smith, who has penned several Denver Post columns about
“predatory transfer fees” said, “It’s nothing but a profit center for these
companies.”
“When I was about to close,” said former HOA homeowner Nancy
Markow, “I needed a status letter (showing dues currency) which I printed out
myself. But they charged $150, then charged for that letter to go through
something called Association Online, then through a company called Homeline for
an additional….”
In the end, Markow paid almost $1,000 in transfer fees.
Depending On Legislation
The discussion kept circling back to the CAM Licensing law.
The four legislators said they were in favor of continuing licensing. Buck
Bailey, a property manager, thought the current way CAMs have been licensed
wasn’t working. Weissman said, “CAM is a profession that can control your
property and your money.
“That’s why we want HB 1212 to pass,” said Weissman.
A realtor observed how much responsibility lies on the
shoulders of the HOA board, who have to negotiate contracts with the management
company, a “problem,” she said, because these volunteer homeowners “do not know
how to read a contract or have any idea of contract vocabulary.”
“These boards are running roughshod over homeowners,” said
Teri Chavez.
“Board members do just what they want … because they can,”
expostulated Candice Compton.
Panelists, acknowledging the ultimate power of HOA boards,
advised a “can’t lick ’em, join ’em” approach.
“Become more engaged,” said Matise.
“If you don’t like what’s going on,” said Weissman, “get on
the board and change it up.”
Homeowner Judy McGree Carrington protested. “You are looking
at this from a privileged perspective,” she said. “The neighborhood I’m in is
filled with working class people. They don’t have time to attend HOA meetings.
They’re coming in from work, making dinner. When they do go, they’re shouted
down.
“This is why,” emphasized Carrington, “we are depending on
legislation. Because you can’t legislate morality. But you can legislate
behavior.”
Challenge
“Before we leave,” said Hrincevich, “I would like each of
the legislators to say they’ll support a bill for out of court dispute
resolution. Without that, you can forget all about your governing documents,
your state law, because there is simply no enforcement.”
Weissman finally broke the silence. “I am not willing to
take away anyone’s right to go to court.”
Weissman was assured court would always be an option.
Buckner said, “I don’t know what the final bill will look
like so I really can’t say.”
Fields said, “I don’t think I understand the subject enough
to give you an answer,” Todd finally said, “[Homeowners] have to be protected.
We’ll figure out something,” and the room burst into applause.
“This is my 15th year as a legislator,” exclaimed Todd, who
is retiring, “and I just hope …, I never hear the word HOA again!”
Mystery
“HOAs are supposed to run on democracy,” said Teri Chavez,
“but homeowners develop apathy because it doesn’t work out that way.”
“The rampant abuse of HOA boards and management companies
will not end anytime soon if we are to depend on legislation,” said the
realtor.
The legislators, on the other hand, voiced approval of what
Fields called “a rich, thoughtful and constructive town hall.”
“I was shocked and disappointed that the legislators
wouldn’t commit to anything being asked of them, however reasonable,” said
Smith.
Hrincevich called the event “ornamental,” adding,
“Legislators know these issues. Why they don’t do anything … is a mystery. “
Many have said that the reason legislators do not respond to
homeowners’ needs is the presence of a powerful national lobby, the Community
Association Institute (CAI), which represents the interests of management
companies and HOA attorneys and other vendors benefiting from the HOA industry.
(CAI’s membership is only 2% homeowners.)
One week after the HOA Town Hall, Hrincevich viewed a letter
national CAI sent to its Colorado membership: that read in part, “We need you
to email or call members of the Finance Committee and let them know you support
HB 1212.” The letter explained how the bill had been “preamended” and “is the
version we support.” The letter promised, “Bonus points if you can testify!”
“All our recommended changes were ignored,” Hrincevich said,
“resulting in an ineffective licensing program. But CAI and special interests
were able to preamend this bill. In other words, the industry that is to be
regulated has successfully influenced the sponsors of this bill to include
their interests. Is this the way government is supposed to work for the
people?”
Corrupt Bidding For Convention Center Expansion Alleged; City Auditor Now Scrutinizing On-Call Construction Contracts
by Glen Richardson
Denver’s reputation as one of the Best Places to Live —
Ranked #1 by US News & World Report in 2016 — has been dealt another blow.
Outdoor activities, proximity to the mountains, art, craft beers and marijuana
that draws visitors to our city and distinguishes it from its metropolitan
colleagues has been compromised by the Convention Center expansion scandal.
The scandal uncovered last November amounts to dereliction
of duty by the City’s Public Works division delivering the services that help
define the quality of life in Denver. Public Works said that it discover-ed the
bidding process to pick a contractor for the project had been interfered with.
Reportedly there was an improper release of city documents, improper
discussions about the process and even altering of approved plans. The city
claimed two companies, Trammell Crow and Mortenson, tainted the bidding. In
response the companies retorted: “If Denver was truly unaware of Trammell
Crow’s conduct, it was the City’s lapse in oversight that created the
situation.”
The City’s Public Works is responsible for the design and
construction management of streets, bridges and public buildings plus
transportation through its offices of parking management, transportation
planning and operations.
On-Call Audit
Since then a newly completed examination and audit of Public
Works by City Auditor Timothy M. O’Brien, CPA, reveals the branch needs to
improve contract competitiveness and enforce policies during the bidding
process while working on some on-call contracts. “It’s in the best interest of
the taxpayers to keep a close eye on the new construction projects going on
with all the new bond money,” Auditor O’Brien explains. “I decided it was
important to start auditing on-call construction contracts in a way we hadn’t
before, to make sure we’re getting what we pay for and that we’re using a truly
competitive process.”
Unconventional Contract: Apparent misconduct in the bidding process for expansion at the Colorado Convention Center has Denver Public Works under scrutiny. Denver has reopened bidding and it is unknown whether pre-booked events will be affected by construction delays.
The Auditor’s Office worked with CliftonLarsonAllen LLP to
complete a third-party examination with limited scope of Halcyon Construction’s
on-call contract with Public Works. Halcyon had an agreement with Public Works
for up to $3 million to cover work between May 1, 2015, and April 30, 2018.
According to the examination, Public Works should expand its pool of
contractors to allow for a more competitive environment and for more
opportunities for other contractors to be considered for work. Public Works
should also make sure to follow the requirements of its mini-bid process, which
was not used at all on some projects.
The examination also found significant increases in project
costs due to change orders from Halcyon. The company had a considerably higher
percentage of change orders than the other small business enterprise
contractors in the bidding pool. In some projects tested, the change order
amounts plus the original work order resulted in the total project cost being
higher than other contractors’ bids submitted during the mini-bid process.
Halcyon’s percentage of change orders through November 2018 was 27%, compared
to other contractor percentages of 3.5%, 8.3%, and 8.2%. Furthermore, for three
of the projects tested, the project managers could not locate any formal
documentation evidencing that inspections were performed during these projects
that could identify when performance was not in line with the work order.
Directional Disarray: Bidding scandal and political meddling has created chaos within the 1,300 employee Denver Public Works department. Leadership’s focus is on the politically motivated Mobility Action Plan rather than management of City’s building and street design and construction.
Ordinance Delayed
Problems with construction management by Denver Public Works
was first reported by District 10 City Councilman Wayne New last summer and
published in a front page August 2018 Chronicle article. A construction
management ordinance was drafted by New at that time and was finally announced
by Public Works on March 27, six months later. Implementation of the new Public
Works procedures will likely begin at an equally sluggish pace.
“There is no doubt now that the problems have resulted from
Public Works’ inability to require pre-permitting and pre-construction planning
and construction management agreements regarding area traffic flow, street
closure, parking meter management, defined offsite parking arrangements and
noise mitigation,” New said then.
Main Man: Director Eulois Cleckley is central figure in problem-plagued Denver Public Works department. He is the hand-picked protégé of Mayor Michael Hancock.
The City Councilman says now as he did six months earlier,
“it is my hope the ordinance will mitigate the trials and tribulations
businesses and residents have experienced in Cherry Creek and throughout the
City.”
Biking Boondoggle
The high-profile Executive Director of Public Works Eulois
Cleckley — the hand-picked protégé of Mayor Michael B. Hancock — has emerged as
a central figure in the growing glitches and uproar within the 1,300 employee
Public Works department. He was chosen to implement Hancock’s Mobility Action
Plan and thus take attention away from the City’s knotty high-density
developments. That job, department insiders say, he has been successfully
completing.
Hancock, Cleckley and Councilwoman Mary Beth Susman are now
proposing the creation of a new Department of Transportation &
Infrastructure. Unlike restructuring the department of Public Works, it will
likely require voter approval but would push a rumored “in-the-works $900
million bond issue.” Meanwhile the City’s 2019 budget includes $27 million for
transportation and mobility improvements including more than $7 million to
build more and more bicycle lanes.
Pedal Pushers: Politically motivated 2019 Denver budget includes $7 million to allow the Public Works department to keep building bicycle lanes on city streets.
Akin to the unmanaged developments being built in almost
every Denver neighborhood, new bike lanes are also clogging traffic and
destroying commerce. Bicycle lanes on 14th and 15th Streets in Denver have
stolen space from motorists and only made downtown traffic worse, particularly
in proximity to hotels and public attractions. Lanes on South Broadway that
cost roughly $13 million seem superfluous and have crushed business along the
corridor. Owner Ron Vicksman of LeGrue’s — a Broadway landmark for nearly a
century — attributed his decision to close after all those years was due to the
loss of parking spaces following installation of the bike lanes. Vehicle registration
fees, ownership taxes and gasoline excise taxes are big revenue raisers but
bicycles aren’t contributors. Critics thus argue they are nothing more than a
form of social engineering.
The Denver municipal election is set for May 7, 2019, and
City Council District 5 promises to be a close race with incumbent Mary Beth
Susman vulnerable to defeat or perhaps a run-off election which would be slated
for June 4, 2019. A run-off would occur if no candidate receives more than 50%
of the vote. In that case, the top two vote getters would go head-to-head in
the June 4th election.
Leading Contender: Amanda Sawyer, who many feel has the best chance of defeating the incumbent, has gained ground with a campaign that speaks about common sense and a rational approach to development within the city.
Incumbent Susman has a reputation in Denver for being a
proponent of high-density development even in quiet residential neighborhoods.
As a result of her negative reputation she has garnered three opponents for the
District 5 seat. District 5 includes the neighborhoods of Hilltop, Crestmoor,
Mayfair, Lowry, Windsor, Washington Virginia Vale, Hale and Montclair.
One candidate who is apparently gaining ground and hoping to
defeat Susman on May 7 or at least June 4, is Amanda Sawyer. Sawyer’s message
is resonating with voters and experts say she has a legitimate shot to upset
the incumbent Susman. Susman has $106,000 in her war chest while Sawyer has
approximately $75,000.
Also in the hunt for the District 5 seat are Michele Fry and
Steve Replin. Fry, a lifelong Mayfair resident, also has attracted supporters
with her experience in government and close ties to the community. She has
raised $24,000 to date.
Dark Horse: Steve Replin is running for city council in District 5 and has proposed a moratorium on all building projects for two years. Replin is seen as a dark horse candidate but Denver residents remember that John Hickenlooper was considered a long shot when he ran for Mayor in 2003.
Hopeful Opponent: Michele Fry, a lifelong Mayfair resident, hopes to defeat Mary Beth Susman in the upcoming May 7 election.
Replin, although a dark horse candidate, has proposed a
two-year moratorium on building anything within the city. To date, Replin has
not yet reported any outside contributions to his campaign.
District 5 is known for activists fighting inappropriate
development and, in at least one case, they were victorious. The proposed Green
Flats project on Holly Street, which this newspaper covered extensively, was
defeated by neighborhood groups even though Councilperson Susman tried to force
the development on the neighborhood.
The Green Flats project is what prompted Sawyer’s interest
to run for the District 5 seat. She has been vocal about development in her
district and is unafraid to ask the tough questions of developers. She
recognizes that development will happen in Denver, but she wants a more
thoughtful approach and protection of the character of the neighborhoods.
As Denver voters are grappling with this decision in
District 5, a candidate forum is scheduled to help them make an informed
decision. The Cranmer Park/Hilltop Civic Association and Bellevue-Hale
Neighborhood Association will co-host a forum on Tuesday, April 16, 2019, at
6:30 p.m. for the candidates seeking the District 5 Denver City Council seat:
Michele Fry, Steve Replin, Amanda Sawyer and Mary Beth Susman.
Additionally, there will be information and presentations on
ballot initiatives. Specifically, they have invited the supporting and opposing
organizations for Initiative 300, The Right To Survive, to present their
positions an take questions.
Unpopular Incumbent: Mary Beth Susman, whose popularity has plummeted, is fighting for her political life and faces three strong candidates in the municipal election set for May 7, 2019.
The Fight Leads Back To Brownstein Farber Law Firm by Julie Hayden
It is the fight and the lawsuit that all the rich and powerful in Denver are obsessively talking about, but is being kept out of the news by the efforts of the all powerful Brownstein Hyatt Farber and Schreck LLP law firm (Brownstein Farber) its principals and/or persons on their behalf. It has been dubbed the “Black Tie Society Civil War” as many of the litigants are featured on webpages of “Blacktie Colorado” attending high society and major charitable soirées. The lawsuit accuses Cherry Creek multi-millionaire James Lustig of “masterminding” the scheme, using friends and family, tied by blood and marriage as “straw purchasers” to reap millions of dollars in stock manipulations. If you think the stock market is rigged for the benefit of the rich, the lawsuit appears to be proof positive of that fact.
Powerful Sisterhood: Sisters Cindy Farber, left, and Debbie Lustig, right, and their husbands Steve Farber, center, and James Lustig (not pictured) are at the center of the Black Tie Society Civil War and accompanying lawsuit in Federal District Court in Denver.
Berlin Claims
David Berlin, a Denver securities mogul, through two
investment companies he controls (Detroit Street Partners, Inc. and Birchwood
Resources, Inc.) filed two lawsuits in late 2017 and early 2018 which were
later consolidated into a single suit (the Lawsuit) in Federal District Court
in Colorado. His companies are suing 20-odd individuals and companies who are a
veritable “Who’s Who” of Denver society, alleging securities fraud and
racketeering.
In the lawsuits Berlin alleged that the parties masterminded
by James A. Lustig, another major Denver securities mogul, participated in a
market manipulation scheme to fraudulently obtain allocation of initial public
offering (IPO) shares from J.P. Morgan Securities LLC and eight other banks
which include such other financial titans as Goldman Sachs & Co., Deutsche
Bank Securities Inc., and Citigroup Markets Inc. (the Banks). He alleges they
engaged in “countless instances of market manipulation, wire fraud, securities
fraud and other racketeering activities” that cost Berlin entities “to the tune
of tens of millions of dollars.” Lustig’s wife, Debbie, is the sister of Cindy
Farber, who is the wife of Steve Farber, a co-founder of the all-powerful
Brownstein Farber law firm. Steve Farber is in turn accused of heading one of
the key defendants CLFS Equities, LLLP (CLFS).
The Mastermind: Securities mogul James A. Lustig is accused in a lawsuit by companies controlled by fellow mogul David Berlin to have masterminded a fraudulent securities and racketeering scheme to reap millions from IPOs allocated by major international banks.
Brownstein Farber Drafts Key Documents
Berlin claims Brownstein Farber drafted contractual
provisions among the defendants that “would purport to keep [the scheme]
confidential and “and were used in, “racketeering activity” as defined by
Colorado statutes “and that Brownstein Farber’s actions could be construed as
“having participated in racketeering enterprise” under Colorado law.
It goes on to specifically allege that “upon information and
belief, Brownstein Farber co-founder Steven W. Farber is the ‘F” in CLFS.”
IPOs
The consolidated Lawsuit revolves around the fact that major
banks act as underwriters for the initial offering to the public of shares in a
company (IPO shares). The banks cannot simply reserve the IPO shares for
themselves but must offer them to independent entities or individuals. The initial
price of the IPO is set by the banks in consultation with company going public
with the banks having the major say. If the initial offering price is set low
enough it is almost guaranteed that the IPO shares can immediately be resold
for a profit with little or no risk in the secondary market.
The holders of the IPO shares, unlike average investors,
will make millions off the initial offering even if the shares later tank. Over
the years the banks have indirectly tried to figure out various schemes to take
as much of the profits on the immediate resale of IPO shares as possible for
themselves which may have dubious legality, but they have gotten away with it
for many a decade. The consolidated Lawsuit goes to extreme lengths not to
allege any wrongful actions by the Banks and even refers to them as the
“Innocent Banks” as Berlin clearly does not wish to offend some of the the most
powerful financial institutions in the world.
The Allocation Scam
Berlin’s companies were for many years allocated IPO shares
due to the fact they were deemed preferred customers with ten million dollars
or more deposited with the bank. In order to rake in more of the profits the
Banks began in 2011 to demand that the customer provide a minimum of $600,000
per year in commissions from trading through the bank rather than simply $10
million on deposit. In order to spread the wealth around the Banks adopted a
rule that a group of clients with $600,000 or more would be given a greater
number of IPOs than a single customer with the same amount of total
commissions. Thus five customers with $600,000 in commissions each would
collectively garner more IPO shares than a single customer who generated $3
million in commissions.
Denver Super Lawyer: Attorney Steve Farber and the law firm he co-founded are alleged in a federal lawsuit brought by companies controlled by David Berlin to be central to a purported securities fraud and racketeering scheme involving IPOs.
Berlin alleges that Lustig, with the help and connivance of
Brownstein Farber, devised a racketeering scheme to take advantage of the new
allocation rules to the detriment of the Berlin companies. Lustig set up a
scheme whereby Lustig and other entities including CLFS would advance to straw
companies he set up for relatives and friends $600,000 plus. The straw
companies were then directed to buy shares of identified companies that would
be quickly sold that afternoon. The sole purpose of the trades was to generate
commissions for the banks so that the straw company would be allocated IPO
shares. Berlin claimed the quick purchases and sale of stock with no purpose to
profit on the sale were illegal “churning” and “wash sales.” The $600,000 plus
would be repaid with interest by the straw companies. Forty percent of the
profits from the immediate sale of IPO shares would then be paid to Lustig or
Lustig entities under the guise of accounting and administrative services.
What is amazing is that even after paying the Banks huge
sums of money in worthless commissions there was so much money in the reselling
of the IPO shares that Lustig and the other Defendants still netted millions in
profits.
Defendants’ Defenses
A principal defense by many of the Defendants to the
purported illegal activity appears to the participation of Brownstein Farber in
drawing up the documents regarding the purported scheme including
non-disclosure agreements alleged to hide the illegal scheme from federal and
state regulators. As stated in the Motion to Dismiss by Jeremy and Mia Abelson
(son-in-law and daughter of James A. Lustig):
Brownstein U.S. Attorney: The present U.S. Attorney is Jason Dunn, is a former Brownstein partner.
In fact, there would be no reason for anyone, especially the
Abelson Defendants, to think there was anything untoward in actively and
deliberately maximizing their eligibility for IPO allocation because the
lawyers involved in the effort had raised no concerns or warnings.
Specifically, according to Plaintiffs, the “highly sophisticated” Brownstein
Hyatt Farber Schreck, LLP (“Brownstein”) was retained to draft non-disclosure
agreements (“NDAs”) to be signed by the entities with which the Lustig
Defendants are alleged to have engaged. Brownstein participation reassured the
Abelson Defendants that engaging with the Lustig Defendants — and even entering
into confidentiality agreements in connection with such engagement — was not
unlawful or even problematic in any way . . . It is also evidence of good faith
on the part of the Abelson Defendants (and negation of intent to defraud . . .)
that they understood that highly reputable lawyers were involved and raised no
red flags.
At the time of the filing, Bob Troyer was a U.S. Attorney, and a former Brownstein partner.
It is not clear how much of the defense that Brownstein
Farber was involved doing legal work for the project (and therefore nothing
could possibly be illegal) will stand up in court. Berlin alleges that the
straw companies necessarily engaged in fraud on the Banks in order to get the
IPO shares including that the funds used were from personal or family wealth,
and (2) that Lustig did not have a beneficial interest in the profits from the
IPO shares. Various of the Defendants seem to indicate they signed whatever
Lustig and/or Brownstein Farber told them to sign without obtaining their own
separate legal counsel.
Bo Brownstein To Jail And Close Connections
The Defendants were, however, undoubtedly aware that Drew
“Bo” Brownstein (the son of the co-founder of Brownstein Farber, Norm
Brownstein), was sentenced in 2012 to federal prison for a year and a day and
fined $2.44 million for illegal insider securities trades. But in that case no
one alleged that Brownstein Farber firm had set up the illegal insider trades.
The willingness to rely simply on Brownstein Farber was
perhaps due to the close connections of all of the Defendants to each other. In
addition, some of the Defendants may have employed Brownstein Farber in other
unrelated legal matters. The Defendants are a dizzying montage of relatives and
friends, including James Lustig’s close acquaintance William Sander and
Sander’s step-son Jonathan Marsico, the nephew of mutual fund giant Tom
Marsico; brothers Brandon and Brett Perry, in addition to their mother, Ricki
Rest; Buzz Alterman and his ex-brother-in-law, Andrew Harrison; real estate
titan Skip Miller, and Miller’s son-in-law and work colleague Steve Shoflick,
who is married to Lustig’s niece; Lustig’s brother-in-law, and work colleague.
Local investors Samuel Zaitz and William Hall are also Defendants along with
Jake Cohen, Todd Eberstein and Jan Falber.
One of the other defendants, Jeremy Abelson typifies the
close connections between the alleged “straw purchasers”: he is married to
Lustig’s niece Mia Abelson who is Skip Miller’s daughter, is Schoflick’s
brother-in-law and brother-in-law to Mia’s sister Melissa Mackiernan, another
Defendant.
Other Defendants listed in the lawsuit include Denny Pepper,
Ronald Vlosich, Kenneth Ricek, Aaron Wolk, John Goldenberg and Jonathon Vinnik.
David Berlin himself was very much part of that close-knit
group of high society friends and relatives that he is now suing. As stated in
Lustig’s Motion to Dismiss:
Demonstrating that David Berlin, the owner of both
Plaintiffs, previously worked alongside many of the defendants and engaged in
the conduct he now labels racketeering. Plaintiffs all allege they ‘previously
had access to a database’ controlled by the Lustig defendants which contains
information about IPO share distribution practices.
The Defendants, along with the defense that the documents
were drawn up by Brownstein Farber and therefore must be legal, also state that
the fraudulent misstatements were made to the Banks and not to Berlin and
Berlin did not rely on them to his detriment. Moreover, they claim that the
sale and immediate reselling of the stocks were not illegal “churning” or “wash
sales” as those terms are defined. They also state that if Berlin has any cause
of action it is against the Banks who drew up any and all new IPO allocation
criteria that he is now complaining about.
Out Of The Public Eye
Why Brownstein Farber or people on their behalf have tried,
heretofore highly successfully, to keep the lawsuits out of public purview is
that in the lawsuits appear possible alleged criminal activities by Brownstein
Farber and as well as each of the Defendants. Insiders indicate that at least
in Colorado Brownstein Farber is almost bulletproof. The U.S. Attorney for the
District of Colorado at the time of the filings was Bob Troyer, who was a
former Brownstein Farber partner. The new U.S. Attorney for Colorado is Jason
Dunn who was, at the time of his appointment, a Brownstein Farber partner.
Any claim of violation of Colorado securities or
racketeering law would be brought by Colorado Attorney General Phil Weiser, who
was elected in no small part because of money contributed or raised by
Brownstein Farber. Insiders also note that most federal and state judges in
Colorado have gotten their positions due in large part to the influence of
Brownstein Farber, making any criminal legal action difficult.
The only real concern to the law firm is if authorities
outside of Colorado take notice. Insiders note that the charges against Bo
Brownstein were brought by the U.S. Attorney for Southern District of New York
in a federal court in New York City.
The Denver federal court docket indicates that next action to be taken in the lawsuit is scheduled for May for a Status Conference with all the parties. More people may start to pay attention to the Black Tie Society Civil War as public awareness of its existence and implications grows and grows.
The above article cites Jeremy & Mia Abelson and Jonathan Marsico & Sam Zaitzas defendants in the Berlin litigation matter. They were all dismissed from the matter and are no longer defendants in this action.
Meetings To Explain Plan’s Impact Haven’t Occurred; Lowry’s Christine O’Connor Named Person Of The Year
by Glen Richardson
Community Advocate: Christine O’Connor who has led the Lowry United Neighborhoods for a decade was named INC’s Person of the Year.
Denver’s Inter-Neighborhood Cooperation or INC passed a resolution Feb. 8 to postpone bringing the city’s “Denveright Plan” to a City Council vote until after the upcoming city elections. Little more than a couple of weeks earlier on Jan. 23, the organization named Christine O’Connor INC’s Person of the Year.
The voluntary coalition of registered neighborhood organizations representing two-thirds of Denver households urged the delay because the next City Council shouldn’t be accountable for a plan voted in by a prior council. Furthermore they say that, “the process did not include all neighborhood voices.” The Plan is currently scheduled for a City Council vote on April 15.
Delay Demanded: Denver’s Department of Community Planning & Development is behind the Denveright campaign that INC wants stopped until after the upcoming city elections.
O’Connor received the Virginia Oredson Memorial Award during the 33rd Annual Awards Dinner held at the Holiday Inn Denver-Cherry Creek. For over a decade, she has led Lowry United Neighborhoods and worked with the broader east Denver neighborhoods on environmental and development issues on the former Lowry Air Force base property. In presenting the award the organization described her as, “An amazing and courageous community advocate and friend to so many.”
Daunting Documents
Delegate Dutcher: Elyria-Swansea neighborhood’s Drew Dutcher was named Outstanding Delegate of the Year.
INC declared at its February Delegate Meeting that the sheer volume of the “Denveright” plan documents has been daunting for most neighborhood organizations and interested citizens to respond to thoroughly and intelligently by City-set deadlines. The documents total more than 1,000 pages, with over 100 goals, nearly 300 policies and recommendations, and more than 450 strategies addressing development through 2040 as Denver’s population increases.
The resolution also alleges, “meetings with neighborhoods to explain impacts of the documents have not occurred throughout the city; further, the city’s official website listing information received through citizen and neighborhood comments is missing many individual comments that were formally submitted.”
Public Safety Winners: This groups’ legal win for a public health study related to environment health connected to the I-70 expansion won them INC’s Public Safety honors. They are from left: Lloyd Burton, Colorado Sierra Club; Ava Farouch from Earthjustice, an environmental law firm. Also, Becky English from the Colorado Sierra Club; Lisa Calderon and Ean Tafoya from the Colorado Latino Forum; Chaffee Park Neighborhood’s Lucas Merrigen; and Drew Dutcher from Elyria-Swansea.
Also, the group asserts, “Information identifying changes made to the plan documents for the second draft are divorced from the materials listing specific requests for changes and additions received from the public.” Finally, according to INC, plan documents continue to be incomplete and vague in terms of addressing impacts on the city’s budget and work program, especially with the more than 450 proposed strategies.
Fights For Citizens
Person of the Year O’Connor has worked tirelessly to support the needs and desires of some of Denver’s most burdened neighborhoods, such as Cole, Globeville and Elyria/ Swansea. She currently serves as INC’s representative to the Citizens Action Group to the I-70 Superfund Site.
She worked with neighbors across north Denver, and participated in litigation regarding the Platte to Park Hill Drainage Project and Denver’s taking of City Park Golf Course to support expansion of I-70.
More recently, O’Connor became one of the leaders in initiating a 2019 ballot measure called “Let Denver Vote.” This ballot measure, if approved, will allow Denver to pursue a future Winter Olympics’ bid only if spending is first approved by Denver voters. What Christine says she values most about INC is “the powerful link it provides among neighbors citywide and the opportunity to work on issues that go beyond one neighborhood.” Her hope for INC is that the “newer members will take the helm and pour their hearts and souls into bettering our City in the decades to come!”
City Wide Awards
Drew Dutcher of the Elyria-Swansea neighborhood was named Outstanding Delegate of the Year. The honor credits him “for his outstanding representation from his neighborhood and representation on behalf of INC to Citizen Advisory Boards connected to city endeavors.”
Public Safety honors were given to four groups for their, “legal win for a public health study related to environment health connected to the I-70 expansion.” They were the Chaffee Neighborhood, Elyria-Swansea Neighborhood, Colorado Latino Forum and the Colorado Sierra Club.
Ronnie Crawford from the Overland Park Neighborhood was presented with the Sustainability Award for his efforts to work with the city to sustain the environment connected to river ways, specifically the Platte River.
Sundial Star
Sundial Star Sanderson: INC presented 10 Neighborhood Star Awards including one to Hilltop’s Denise Sanderson for her fundraising efforts to renovate the Cranmer Park Sundial & Plaza.
Hilltop resident Denise Sanderson received a Neighborhood Star Award for her leadership of the Save the Sundial Committee and the significant fundraising efforts that were necessary to complete renovation of the Sundial & Plaza.
She was instrumental in getting the Sundial & Plaza put on Colorado’s “Most Endangered Places” list, giving the fundraising project more visibility and a sense of urgency. After years of raising awareness and funding to save this historic landmark, in early 2014, the Committee turned to The Park People, who adopted the project, taking the outreach and fundraising to another level.
It took nearly a decade, but the effort came to a celebratory close last year on Oct 3 when the Cranmer Park Sundial & Plaza officially reopened after completing nine months of restoration work. Now the Denver neighborhood park with a sweeping view of the Front Range has a solid foundation for generations to come.
More Valley Stars
Nine other residents were also given Neighborhood Star Awards for their work on specific projects that impacted the community. They are in alphabetical order:
Anne Callison, Winston Downs’s neighborhood, for her balanced leadership regarding information and education for a liquor-cabaret dance license at a cemetery.
Glenn Harper of the Sun Valley neighborhood for opening his restaurant to support a food bank and education to future chefs in his neighborhood.
John Robinson in the Harvey Park neighborhood for work on the Loretto Heights redesign and neighborhood festival fundraiser.
Greater Park Hill’s Blair Taylor for her activism in representing all neighborhood voices in projects that impact her area.
Diane Travis, Uptown on the Hill (Swallow Hill) for her education of residents and city on how to efficiently save historic flagstone sidewalks and for getting her suggestions adopted into city sidewalk planning.
Michelle Valeri from the Colfax Business Improvement District for her success with the Colfax Works program that employs the homeless.
Phyllis Ward of the University Park Community for her dedication to ensuring the neighborhood newsletter was distributed.
Brooke Webb in the Virginia Village-Ellis area for her efforts to improve the public image of the Ellis Elementary School and PTA.
Ann White of Montbello 20/20 for her leadership in health awareness and representing Montbello on the WorkNow program.
Rep. Garnett Blames Albus Brooks And Denver For Stunning Defeat by Glen Richardson
Scenes Of Human Misery: The streets and alleys in Vancouver around the seven SIS centers are not cheerful places. Many addicts shoot up in the alleys and streets surrounding the centers not bothering to go into the SIS centers themselves.
In a stunning reversal of fortune, the sponsors of the so-called Safe Injection Sites (“SIS”) bill was dropped by its sponsors — House Majority Leader Alec Garnett and State Senator Brittany Pettersen. The proposed but never introduced bill would have, in effect, made heroin sales and use legal at and around designated sites, including 231 East Colfax by the State Capitol. At the SIS centers would be medical personnel to administer naloxone or other drugs which would revive a heroin user from overdoses, including where fentanyl is added to the heroin.
Channel 9 News Anchor Under Fire: Kyle Clark the Channel 9 news anchor took a hit to his reputation after he backed SIS centers to the consternation of many viewers. The failure of the legislation called into doubt whether his strong backing was of any benefit to the SIS effort.
The SIS centers would also allow injection of methamphetamines and other drugs, including what is known as a “speed ball” where methamphetamines and heroin are mixed together. The bill was promoted as being “compassionate” to heroin users and limiting the harm incurred by users. Critics said the bill was little more than a backdoor method to legalize heroin and meth sales and use which critics say has been a long-sought goal of Mexican drug cartels who supply most of the heroin/ meth to Denver and the state.
Garnett Attacks Denver
State House Majority Leader Alec Garnett pointed the finger at Denver and City Councilman Albus Brooks for the loss. “I think Denver kind of wanted to be the first city in the country,” Garnett stated, “but I think the eagerness drew a lot of negative attention from the public, from the U.S. attorney and the feds.”
Councilman Brooks was the lead person on the Denver push. He brought Harm Reduction Action Center head Lisa Raville before the City Council. He obtained City Council approval by a 12 to 1 vote with only Kevin Flynn voting against the proposal. However, the approval of one or more SIS centers in Denver was made subject to approval of the State Legislature.
Brooks Responds
Taking The Blame: Denver and Denver City Councilman Albus Brooks were blamed by State House Majority Leader Alec Garnett for the loss at the Capitol for of the SIS legislation.
Brooks, in turn, blamed 710 KNUS radio host (and Chronicle columnist) Peter Boyles who, along with fellow radio host Stephan Tubbs, went to Vancouver, Canada, to see how SIS was working in that city which had approved them in 2003. The two broadcast live from Vancouver and posted pictures and videos of what they found along East Hastings Street which once had been a historic portion of Vancouver analogous to Larimer Square.
Radio Hosts In Vancouver
Ode To Death: Four people a day die in British Columbia, where Vancouver is located, from heroin usage. Outside of the SIS center on East Hastings Street the names of some of the dead are listed under the heading “FOR THE LOVED ONES WE HAVE LOST.”
The descriptions and photographs painted a horrific picture of masses of heroin and meth users all along Hastings and adjoining streets. The Central American drug soldiers, they reported, controlled the streets and openly sold their wares to one and all. The SIS center was not cheerful and clean but a place of misery and pain, they reported. Many users did not bother to go into the SIS center itself, but simply shot up in the alleys and along the sidewalks. The addicts came to East Hastings Street they indicated not for the SIS center but because heroin and other drugs could be bought and consumed without fear of interruption or arrest.
Tubbs described one addict on the floor of the SIS center while his girlfriend jammed needles in his neck attempting to find a vein as the vein system in other parts of his body had apparently failed to be available.
The personnel at the SIS center told the two that they did not try to get heroin and other users into rehab as it would cause them to feel stigmatized and less likely to frequent the SIS center.
Brooks indicated that the live broadcasts had caused a groundswell of opposition to the SIS bill at the State Capitol. Brooks tweeted out: “Radio Hosts don’t have evidence. Last time I checked that’s not the truth.” Brooks claimed that he had been to Vancouver and saw nothing of the sort when he visited. It is not clear whether he was claiming the pictures and videos were somehow doctored or that he had been given a phony “Potemkin Village” tour of East Hastings and Vancouver.
Checks of Brooks’ expense records, according to former Speaker of the House Frank McNulty, show no expenses whatsoever concerning any trip to Vancouver. That fact could indicate he never, in fact, went to Vancouver, or his plane, hotel and other expenses were paid by third parties which could be illegal.
Pettersen’s Viewpoint
Killer Smile: State Senator Brittany Pettersen, a co-sponsor of the state SIS bill, has a reputation as a vicious fighter for her interests. Her anger at Alec Garnett for indirectly dissing her husband’s efforts in Denver for SIS has left him a marked man at the Capitol according to sources.
Interestingly co-sponsor State Senator Brittany Pettersen refused to appear with Garnett at his news conference and instead held her own conference. Insiders indicate that there is, in fact, a growing rift between Pettersen and Garnett. They indicate that Garnett, by blaming Denver and Brooks, was indirectly criticizing Pettersen’s husband, Ian Silverii, the executive director of ProgressNow Colorado, who had helped behind the scenes with the Denver rollout of the SIS legislation.
Supporters of Silverii think Garnett’s criticism of Denver and by implication Silverii and Brooks is badly misplaced. They point out that Silverii had obtained highly favorable coverage for SIS in The Denver Post, Westword, 5280 magazine, 630 KHOW radio and many other media outlets. Many others credit him with turning Channel 9 news anchor Kyle Clark into a very strong supporter of SIS centers and its failure is seen by many as a black mark on Clark’s record and reputation.
Pettersen in her news conference did not put the blame on Denver and by implication Brooks and Silverii but rather on Patrick Neville, the Republican Minority Leader of the House.
“This got caught up in the fact that Democrats hold every chamber, and there are desperate attempts to try to regain power,” Pettersen said. “This has been chosen as a political top target.”
She went on to note, “I’m unwilling to give them a political platform.”
Pettersen acknowledged that she needed no Republican votes and even had a Republican sponsor for her bill, Kevin Priola. She had, however, lost her own Democratic caucus.
The Fight Continues
Behind The Scenes Man: ProgressNow Colorado’s Executive Director Ian Silverii, the husband of State Senator Brittany Pettersen, was a key man behind the curtain in the effort to promote SIS legislation and Garnett’s attack on Denver was seen as an affront and insult to Silverii.
The supporters of SIS centers are not going to simply disappear. An enormous amount of money was expended to promote the SIS legislation in Denver and at the Capitol and the financial backers are apparently not pleased. They are reportedly putting an enormous amount of pressure on Albus Brooks, Ian Silverii and Lisa Raville to figure out some way to legalize, directly or indirectly, heroin/meth sales in Denver by this summer.
Raville has told the press “It’s not May 4th yet. We certainly aren’t giving up the fight. We continue to look forward. We know this is the gold-standard evidence-based intervention that we want to push forward with.” May 4th is the last day of the Colorado legislative session and bills such as the “hospital provider fee” bill have been introduced and passed even at the very end of the legislative calendar.
Brooks in turn has tweeted out, “Denver will find a way to address this Public Health Crisis with or without the State.”
Opponents including Patrick Neville have indicated that they “will be there” to battle heroin legalization wherever the fight may be.
