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Richard P. Barkley Attorney at Law T 303.223.1145 F 303.223.0945 rbarkIeybhf-Iaw.com
VIA E-MAIL - [email protected] Mark E. Brennan, Esq. Mark E. Brennan, P.C. P.O. Box 2556 Centennial, Colorado 80161 Re: Cadorna v. City and County of Denver, 04-C V-I 067-REB-CBS (D.C. Cob.) Dear Mark: We hope you had a good holiday season and the New Year has been treating you well. We know you have a very hectic schedule, so we will try not to take a lot of your time. The City and County of Denver ("Denver') intends to file a motion to stay execution of the judgment in this case until after the Court rules on the post-judgment motions. Denver also asks that execution of the judgment be stayed without requiring it to post a supersedeas bond. Denver commits in the motion that if a stay is granted without requiring Denver to post a bond, Denver will pay to Cadorna after all post-trial judgment motions, subsequent trials or proceedings, and appeals are completed and the mandate is issued, without the need for Cadorna to execute on a judgment, the amount, if any, that Denver is determined to owe to Cadorna. As Richard will be filing the motion, please let him know as soon as possible whether your client will consent to the motion to stay without a supersedeas bond. If you want to respond by e-mail, Richard's e-mail address is [email protected]; if you prefer to communicate by telephone, his telephone number is (303) 223-1 145. Sincerely,
Richard P. Barkley Christopher M.A. Lujan
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Barkley, Richard P.
From: Sent: To: Bill Cadorna Cc: Subject: Supersedeas Bond Mark Brennan [markebrennanpcyahoo.com] Monday, January 08, 2007 12:56 PM Barkley, Richard P.; Chris M. Lujan
Dear Richard and Chris: I hope this finds both of you enjoying a very Happy New Year, as well. I have received your letter (copy attached) requesting our agreement to waiver of posting of a supersedeas bond pending the outcome of all post-trial motions and appeals, and will discuss its implications with Mr. Cadorna. On the face of it, I would be inclined to recommend against such an agreement. I can think of no advantage our agreement to it would offer Mr. Cadorna, and think opposing it would be to his great advantage. Nevertheless, it is obviously a very important decision that must be made upon the basis of all relevant information. What is your clients position concerning Mr. Cadornas reinstatement, ordered by the court in its 11/27/06 Order and 11/28/06 Judgment, and requested in writing by Mr. Cadorna via email on 12/31/06 (not to mention many times prior to that date in his complaint, etc.)? Thank you.
Best regards, Mark Brennan
THIS EMAIL MAY CONTAIN PRIVILEGED OR CONFIDENTIAL INFORMATION THAT IS INTENDED SOLELY FOR THE RECIPIENT NAMED ABOVE. UNAUTHORIZED USE IS PROHIBITED. Mark E. Brennan, P.C. Attorney-at-Law P.O. Box 2556 Centennial, Colorado 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) (303) 734-9156 (fax)
1/12/2007
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Richard P. Barkley Attorney at Law T 303.223.1145 F 303.223.0945 rbarkIey©bhfIaw.com
VIA E-MAIL - [email protected] Mark E. Brennan, Esq. Mark E. Brennan, RC. P.O. Box 2556 Centennial, Colorado 80161 Re: Cadorna v, City and County of Denver, 04-C V-I 067-REB-CBS (D.C. CoIo) Dear Mark: Thank you for responding so promptly to our letter, sent to you earlier today. We are discussing with our client the issue of reinstatement you have raised. If you will agree not to take any action with respect to the judgment for a couple of days - until the end of the day Wednesday, January 10, 2007 (to allow us to complete discussions with our client) - we will defer filing the motion, and hope to be able to propose before that deadline, a solution to the reinstatement issue that is mutually satisfactory. If you are unable to agree to defer action for the two day period requested, please let us know immediately so that we can file the motion. Sincerely,
Richard P. Barkley Christopher M.A. Lujan
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Bark!ey, Richard P.
From: Sent: To: Cc: Mark Brennan [[email protected]] Monday, January 08, 2007 5:20 PM Barkley, Richard P.; Chris M. Lujan
Bill Cadorna Subject: Supersedeas Bond Forbearance
CONFIDENTIAL SETTLEMENT COMMUNICATION UNDER FED.R.EVID. 408 Dear Richard and Chris: I think it will benefit both parties to have a couple of days in which to ponder or discuss possible ways in which to achieve our mutual goals. Therefore, as you proposed in your second letter of today (copy attached) Mr. Cadorna is willing to forbear enforcement of the judgment until the close of business on Wednesday, January 10, 2007, in order to permit you an opportunity to discuss ways in which the City might make it worth Mr. Cadornas while to waive the posting of a supersedeas bond, which he will refuse absent very meaningful consideration that at least partially repairs the severe economic harm the Citys actions have caused him. I must emphasize that I am not authorized to make any proposal of compromise on this issue, and am not making an offer of compromise. Mr. Cadorna has quite vehemently instructed me to refuse to waive the bond. In the spirit of comity, I will not share his precise response to your proposal with you. It occurs to me, however, that there is a significant component of the judgment about which we do not disagree, and which your client will in all likelihood have to satisfy regardless of whether it succeeds in persuading Judge Blackburn to reduce the judgment: (1) that portion of back pay you do not dispute he is owed, though we obviously differ greatly on the total amount; (2) reinstatement; (3) attorneys fees, though you will undoubtedly insist upon a lower hourly rate than the S330 Judge Kane recently awarded in Lucas v. Kmart. By way of 'thinking out loud", I wonder whether there may be some way in which your client would be willing to satisfy that part of the judgment and attorney's fees about which there is no dispute, and leave the rest (e.g., total attorney's fees, liquidated damages, back pay above and beyond what you concede is due) to be fought over in the posttrial motions/appeals, etc.? If I were in a position to offer some reasonable quid pro quo for his forbearance on the supersedeas bond, above and beyond your agreement to pay the full judgment after exhaustion of appeals (which, after all, profits him very little), Mr. Cadorna might take your proposal much more seriously. I frankly do not know whether such an approach is even legally practical or feasible. I have not myself thought through all of the pros and cons from our perspective, completely. Also, It may well be that your client would not regard it as an option superior to simply posting the bond. It may suffer the illusion that it will, by holding out on paying anything, gain pressure with which it might later compel Mr. Cadorna to accept less than whatever the full judgment turns out to be in settlement. Please be assured the latter will fail. (Though my experience in handling this case over the last three years did little to improve my temperament or manners, it taught both Mr. Cadorna and me that patience and perseverance are occasionally rewarded in this life.) I would, however, be happy to communicate any proposal to Mr. Cadorna that you, given the benefit of your far 1/12/2007
Case 1:04-cv-01067-MSK-CBS Document 221-2 Filed 01/12/2007 Page 5 of 14Page 2 of 2 superior knowledge of appellate procedure, might formulate to help us achieve our mutual goals. Thank you very much for your courtesy and cooperation. Best regards, Mark Brennan
THIS EMAIL MAY CONTAIN PRIVILEGED OR CONFIDENTIAL INFORMATION THAT IS INTENDED SOLELY FOR THE RECIPIENT NAMED ABOVE. UNAUTHORIZED USE IS PROHIBITED. Mark E. Brennan, P.C. Attorney-at-Law P.O. Box 2556 Centennial, Colorado 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) (303) 734-9156 (fax)
1/12/2007
Case 1:04-cv-01067-MSK-CBS
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January 10, 2007
Richard P. Barkley Attorney at Law T 3032231145 F 303.223.0945 rbarkIeybhf-Iaw.com
VIA E-MAIL - [email protected] Mark E. Brennan, Esq. Mark E. Brennan, P.C. P.O. Box 2556 Centennial, Colorado 80161 Re: Cadorna v. City and County of Denver, 04-CV-I 067-REB-CBS (D.C. Cob.) Dear Mark: Thank you for your e-mail, sent at 5:20 on January 08, 2007, addressing the City and County of Denver's ("Denver") motion to stay execution of the judgment without the need to post a bond. We believe that under Fed. R. Civ. P. 62(f) and C.R.S. §30-35-501, Denver is entitled to a stay without posting a bond. Accordingly, we did not view our request that you agree to constitute a concession of any significance. Rather, we sought your agreement because (a) we were required to do so under Local Rule 7.1; and (b) we are always interested in reaching agreement on issues, if possible, to avoid time and expense. The first of your return e-mails, however - which asked whether the stay would apply to reinstatement - required us to consider whether our motion would adversely affect Mr. Cadorna, and whether Denver could take steps to eliminate any conceivable hardship to your client resulting from a stay of reinstatement. (As you know, Mr. Cadorna sent an e-mail to Denver's counsel on December 31, 2006, at 7:03 p.m., requesting reinstatement, after all the details were worked out with you.) And it was because of Denver's interest in avoiding harm to Mr. Cadorna that we delayed filing the motion. After discussions with Denver, we are authorized to take the following steps to make sure that the stay without posting a bond we are requesting will not present any possible harm to Mr. Cadorna. If the Court stays the judgment, including reinstatement, during the pendancy of Denver's post-judgment motions without requiring Denver to post a bond, Denver will pay Mr. Cadorna, from January 1, 2007, to the date on which the Court rules on the post-judgment hearings, the difference between the amount he is receiving from his pension payments and the amount he would be receiving if he were reinstated. Thus, if Mr. Cadorna were
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Case 1:04-cv-01067-MSK-CBS Mark E. Brennan, Esq. January 10, 2007 Page 2
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reinstated, he would receive $5,304.00 per month. Instead, he is receiving $2,687.36 per month as pension payments. From January 1, 2007, to the date on which the Court rules on the post-judgment hearings, Denver will pay Mr. Cadorna $2,616.64 per month (less applicable withholdings), so that the amount he receives from the combination of his pension payments and Denver's payments (less applicable withholdings on Denver's payments) equals $5,304.00 per month. If Denver is required to post a bond to obtain a stay, however, Denver will not agree voluntarily to make payments to Mr. Cadorna, but will ask that the amounts to be paid to Mr. Cadorna be included within the amount covered by the bond. From Denver's perspective, this offer seems quite generous to Mr. Cadorna. Although Denver will save the cost of a bond, Mr. Cadorna will also receive a substantial benefit by being paid immediately an amount equal to his entire salary.1 Indeed, because Mr. Cadorna's pension payments are not taxable, during the pendancy of the post-judgment motions he will actually receive more than he would be paid if he were reinstated. I do not know whether the Court will required Denver to post a bond. (As noted earlier, we believe that Rule 62(f) and C.R.S. §30-35-501 relieve Denver of the obligation to post a bond.) Almost certainly, however, the Court will be more likely not to require a bond if your client agrees to it. In light of the substantial benefit Mr. Cadorna will receive from Denver's offer, I am requesting that your client agree not to oppose Denver's request for a stay without posting of a bond. Please let me know as soon as possible - and no later than 5:00 p.m. today whether your client will agree not to oppose Denver's motion. Sincerely, Richard P. B Christopher M.A. Lujan
1To avoid any confusion, if Mr. Cadorna accepts Denver's offer, Denver will be relieved of any future obligation to pay Mr. Cadorna - and he will have no right to receive - a salary from January 1, 2007, to the date on which the Court rules on the post-judgment hearings. Having received the entire amount to which he is entitled for that amount, Mr. Cadorna will not be entitled to recover it again as back pay or front pay.
Case 1:04-cv-01067-MSK-CBS
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Barkley, Richard P.
From: Sent: To: Cc: Mark Brennan [[email protected]] Wednesday, January 10, 2007 4:02 PM Perlowski, Vicki J,; Barkley, Richard P.
B!!! Cadorna; Chris M. Lujan Subject: Re: Cadorna v, City and County of Denver
Dear Richard: Thank you for your letter of earlier this afiernoon (copy attached). Unfortunately, because I have been devoting myself to research in another case this afternoon, I only just received it. Your letter presents a thoughtful and creative proposal that bears serious consideration. I do not think it will be possible, however, to discuss it with Mr. Cadorna and afford him (and me) an adequate opportunity to respond by 5:00PM, today. May I suggest we agree to hold matters in abeyance until the close of business Friday in order to permit a more reasoned analysis of your proposal and further exchange of ideas? Best regards, Mark Brennan "Perlowski, Vicki J."
Please refer to the attached letter from Messrs. Barkley and Lujan regarding the above referenced matter.
Victoria J. Perlowski Brownstein I Hyatt I Farber! Schreck P.C. 410 Seventeenth Street Suite 2200 Denver, Colorado 80202-4437 vperIowskkbhfs.com 303.223.1381 3032231111 IRS Circular 230 Disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for purposes of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter addressed herein STATEMENT OF CONFIDENTIALITY & DISCLAIMER The information contained in this e-mail message is attorney privileged and confidential information, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone 303.223.1100 or reply by e-mail and delete or discard the message. Thank you. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Brownstein Hyatt Farber Schreck P.C. for any loss or damage arising in any way from its use.
I '12'2007
Case 1:04-cv-01067-MSK-CBS
Document 221-2
Filed 01/12/2007
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THIS EMAIL MAY CONTAIN PRIVILEGED OR CONFIDENTIAL INFORMATION THAT IS INTENDED SOLELY FOR THE RECIPIENT NAMED ABOVE. UNAUTHORIZED USE IS PROHIBITED. Mark E. Brennan, P.C. Attorney-at-Law P.O. Box 2556 Centennial, Colorado 8016 1-2556 (303) 552-9394 (office) (303) 797-7687 (cell) (303) 734-9156 (fax)
1/12/2007
Case 1:04-cv-01067-MSK-CBS Barkley, Richard P.
From: Sent: Barkley, Richard P. Wednesday, January 10, 2007 4:49 PM
Document 221-2
Filed 01/12/2007
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'Mark Brennan' To: Subject: RE: Cadorna v. City arid County of Denver Dear Mark Thank you for your e-mail. We are certainly willing to defer filing the motion until Friday to allow you to discuss our offer with your client. Hopefully, your client will be able to make a decision on the offer by noon on Friday so that we can file the motion Friday afternoon, either with. or without, your client's opposition. In the meantime, we hope you are able to relax a little bit despite your hectic schedule. Sincerely, Richard Barkley Chris Lujan Original Message ----From: Mark Brennan [mailto: [email protected] Sent: Wednesday, January 10, 2007 4:02 PM To: Perlowski, Vicki J.; Barkley, Richard P. Cc: Bill Cadorna; Chris M. Lujan Subject: Re: Cadorna v. City and County of Denver
Dear Richard: Thank you for your letter of earlier this afternoon (copy attached). Unfortunately, because I have been devoting myself to research in another case this afternoon, I only just received it. Your letter presents a thoughtful and creative proposal that bears serious consideration. I do not think it will be possible, however, to discuss it with Mr. Cadorna and afford him (and me) an adequate opportunity to respond by 5:00PM, today. May I suggest we agree to hold matters in abeyance until the close of business Friday in order to permit a more reasoned analysis of your proposal and further exchange of ideas? Best regards, Mark Brennan "Perlowski, Vicki J."
Please refer to the attached letter from Messrs. Barkley and Lujan regarding the above referenced matter.
1/12/2007
Case 1:04-cv-01067-MSK-CBS
Victoria J. Perlowski Brownstein I Hyatt I Farber Schreck P.C. 410 Seventeenth Street Suite 2200 Denver, Colorado 80202-4437 vpedowskibhfs .com 1' 303.223.1381 303.223.1111
Document 221-2
Filed 01/12/2007
Page 2 of 2 Page 11 of 14
IRS Circular 230 Disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for purposes of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter addressed herein STATEMENT OF CONFIDENTIALITY & DISCLAIMER The information contained in this e-mail message is attorney privileged and confidential information, intended only for the use of the individual or entity named above, If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone 303,223.1100 or reply by e-mail and delete or discard the message. Thank you. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Brownstein Hyatt Farber Schreck P.C. for any loss or damage arising in any way from its use.
THIS EMAIL MAY CONTAIN PRIVILEGED OR CONFIDENTIAL INFORMATION THAT IS INTENDED SOLELY FOR THE RECIPIENT NAMED ABOVE. UNAUTHORIZED USE IS PROHIBITED. Mark E. Brennan, P.C. Attorney-at-Law P.O. Box 2556 Centennial, Colorado 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) (303) 734-9156 (fax)
1/12/2007
Case 1:04-cv-01067-MSK-CBS
Document 221-2
Filed 01/12/2007
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Barkley, Richard P.
From: Sent: Mark Brennan [markebrennanpc@yahoocom] Wednesday, January 10, 2007 9:48 PM
Barkley, Richard P. To: Subject: RE: Cadorna V. City and County of Denver
Thank you very much, Richard. I'm afraid there is indeed no rest for the weary, yet! In several months, though. I may be able to get away for a few weeks to Montana, Paris (even Texas sounds good, right now), or some other refuge. I will discuss the ins and outs, pros and cons, etc., with Mr. Cadorna and get back to you by noon, Friday. If I understood your proposal correctly, it entails paying Mr. Cadorna the difference between his pension and the salary he would be receiving, but only until Judge Blackburn issues his rulings on the post-judgment motions currently pending? If so, I do not expect Mr. Cadorna to greet it favorably. Thanks! Best regards, Mark Brennan
"Barkley, Richard P."
----- Original Message -----
From: Mark Brennan [mailto: [email protected]] Sent: Wednesday, January 10, 2007 4:02 PM To: Perlowski, Vicki J.; Barkley, Richard P. Cc: Bill Cadorna; Chris M. Lujan Subject: Re: Cadorna v. City and County of Denver Dear Richard:
Thank you for your letter of earlier this afternoon (copy attached). Unfortunately, because I have been devoting myself to research in another case this afternoon, I only just received it. Your letter presents a thoughtful and creative proposal that bears serious consideration. I do not think it will be possible, however, to discuss it with Mr. Cadorna and afford him (and me) an adequate opportunity to respond by 5:00PM, today. May I suggest we agree to hold matters in abeyance until the close of business Friday in order to permit a more reasoned analysis of your proposal and further exchange of ideas? 1/12/2007
Case 1:04-cv-01067-MSK-CBS Best regards, Mark Brennan
Document 221-2
Filed 01/12/2007
Page 2 of 3 Page 13 of 14
"Perlowski, Vicki J."
Please refer to the attached letter from Messrs. Barkley and Lujan regarding the above referenced matter.
Victoria J. Perlowski Brownstein I Hyatt I Farber I Schreck p.c. 410 Seventeenth Street Suite 2200 Denver, colorado 80202-4437 vperIowskbhfscom T 303.223.1381 303.223.1111 IRS Circular 230 Disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for purposes of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or taxrelated matter addressed herein STATEMENT OF CONFIDENTIALITY & DISCLAIMER The information contained in this e-mail message is attorney privileged and confidential information, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone 303.223.1100 or reply by e-mail and delete or discard the message. Thank you. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Brownstein Hyatt Farber Schreck P.C. for any loss or damage arising in any way from its use.
THIS EMAIL MAY CONTAIN PRIVILEGED OR CONFIDENTIAL INFORMATION THAT IS INTENDED SOLELY FOR THE RECIPIENT NAMED ABOVE. UNAUTHORIZED USE IS PROHIBITED. Mark E. Brennan, P.C. Attorney-at-Law P.O. Box 2556 Centennial, Colorado 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) (303) 734-9156 (fax)
THIS EMAIL MAY CONTAIN PRIVILEGED OR CONFIDENTIAL INFORMATION THAT IS INTENDED SOLELY FOR THE RECIPIENT NAMED ABOVE. UNAUTHORIZED USE IS PROHIBITED. Mark E. Brennan, P.C. 1/12/2007
Case 1:04-cv-01067-MSK-CBS Attorney-at-Law P.O. Box 2556 Centennial, Colorado 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) (303) 734-9156 (fax)
Document 221-2
Filed 01/12/2007
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