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Thomas P. McMahon, Esq.
Jones & Keller, P.C.
Skilled Antitrust, Health Care And Complex Commercial Litigation Representation For Clients In Colorado And Nationwide.

Recent Activity

Big Win in Federal Antitrust Trial

Tom McMahon and fellow Jones & Keller trial attorney Steve Long recently won a major jury verdict on behalf of Tom’s client, Auraria Student Housing at the Regency, LLC (the “Regency”). The lawsuit charged that the defendant, Campus Village Apartments, LLC (“Campus Village”), conspired with the University of Colorado Denver (“UCD”) to monopolize the rental to UCD freshmen of privately-owned and operated off-campus student housing in violation of Section 2 of the Sherman Antitrust Act.

Following 4½ days of testimony, the Denver federal court jury returned its verdict in the unheard-of span of 48 minutes. After being trebled pursuant to federal antitrust law, the judgment amounts to $9,783,000. In addition, the Regency is entitled to a statutorily-mandated award of attorneys’ fees and costs of suit, which will add significantly to the Regency’s total recovery.

Click here for the Denver Post’s article on the case.

Colorado Federal Court Denies Defendant’s Summary Judgment Attempt in Antitrust Case

Tom McMahon recently obtained a significant ruling in a cutting-edge federal antitrust case in Denver. Tom represents the Regency, a facility providing dedicated student housing for the three schools at the Auraria Campus in downtown Denver. The Regency is suing a competitor, Campus Village Apartments, for conspiring with the University of Colorado Denver to monopolize the provision of student housing to UCD freshmen by requiring them to live at Campus Village. Students are deprived of the choice of where to live, and forced to pay higher prices as a result. The U.S. District Court recently denied Campus Village’s motion for summary judgment seeking to have the lawsuit dismissed. The case will now proceed to trial, which is scheduled for January 2015.

Montana Trial Court Ruling Holds Defendant Hospital Liable to Physician

Tom McMahon recently obtained a unique and significant ruling in a major health care case in Montana. Tom represents a physician with 33 years of experience who is suing a hospital for improperly ending his career as an ob/gyn. In an extremely rare move, the trial judge ruled as a matter of law that the hospital is liable to the physician for beaching its contract with him. Now the late August jury trial will focus primarily on damages, which are expected to amount to seven or eight figures. Rauh v. Holy Rosary Healthcare, Cause No. DV 2011-41 (Mont. 16th Jdcl. Dist., Custer Cnty., May 22, 2013)

U.S. Tenth Circuit Dismisses Private Defendant’s Appeal Claiming Antitrust Immunity February 11, 2013

In an antitrust decision of national significance, on January 4, 2013 Jones & Keller senior litigator Tom McMahon won a favorable ruling from the U.S. Court of Appeals for the Tenth Circuit in Denver. The appellate court held that a private defendant may not invoke the “collateral order” doctrine to immediately appeal a trial court’s ruling that the defendant does not have state action immunity from the antitrust laws. The case is Auraria Student Housing at the Regency, LLC v. Campus Village Apartments. LLC, ___ 703-F.3d ___1147, (10th Cir. 2013).

In the fall of 2010 Jones & Keller filed suit in U.S. District Court in Denver on behalf of its client, the Regency. The complaint alleged that defendant Campus Village had conspired with the University of Colorado-Denver (“UCD”) to monopolize private, off-campus dedicated student housing apartment facilities for the Auraria Higher Education Center in violation of Section 2 of the Sherman Act, 15 U.S.C. §2. According to the complaint, the two agreed that UCD would require most of its full-time students to live at Campus Village’s apartments for their first two semesters, rather than being able to live at the Regency or elsewhere. As a result, students paid more and received less at Campus Village and the Regency lost business.

Campus Village moved to dismiss the complaint, asserting that under the doctrine of Parker v. Brown, 317 U.S. 341 (1943), it had state action immunity from the antitrust laws. Jones & Keller opposed that on behalf of the Regency, relying heavily on the Tenth Circuit’s then-recent decision in Kay Elec. Co-op v. City of Newkirk, 647 F.3d 1039 (10th Cir. 2011). In late 2011 the trial court denied the motion. 825 F.Supp.2d 1072 (D.Colo. 2011). Campus Village then filed an immediate appeal, asserting that it was entitled to do so under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), and re-asserting entitlement to state action immunity.

On January 4, 2013, the Tenth Circuit rejected the appeal. It noted that a split exists among federal appellate courts regarding whether the denial of state action immunity prior to trial is immediately appealable as a collateral order. The U.S. Courts of Appeals for the Fourth and Sixth Circuits have held it is not. See S.C. State Bd. of Dentistry v. FTC, 455 F. 3d 436 (4th Cir. 2006); Huron Valley Hosp., Inc. v. City of Pontiac, 792 F.2d 563 (6th Cir. 1986). Those for the Fifth and Eleventh Circuits have held, conversely, that it is. See Martin v. Mem’l Hosp., 86 F.3d 1391 (5th Cir. 1996); Commuter Transp. Sys., Inc. v. Hillsborough Cnty. Aviation Auth., 801 F.2d 1286 (11th Cir. 1986).

The Tenth Circuit emphasized, however, that even the Fifth Circuit does not allow privatedefendants to utilize the collateral order doctrine as a vehicle for immediately appealing the denial of state action immunity. See Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287 (5th Cir. 2000), pointing out that immunity concerns regarding governmental defendants simply aren’t implicated where a private party is the entity claiming state action immunity. Consequently, the Tenth Circuit dismissed Campus Village’s appeal without even needing to address the underlying state action immunity issue.

The case now returns to the district court for trial.

Auraria Student Housing at the Regency, LLC v. Campus Village Apartments, LLC, Case No. 10-cv-2516 – WJM-KLM (D. Colo. Sep. 8, 2014)

Appellate Victory in Health Care Case of First Impression

In a case of first impression under the 36-year old state Professional Review Act governing physicians, Jones & Keller senior litigator Tom McMahon has won a precedent-establishing victory in the Colorado appellate courts that will benefit doctors throughout Colorado. The Act provides that, as a general rule, peer review materials are privileged and not subject to subpoena or discovery in civil lawsuits. However, it makes an exception for a physician in the course of an appeal during a peer review proceeding involving the physician, and again in a subsequent judicial review suit brought by the physician once the peer review proceeding is complete.

In the case handled by Tom, he subpoenaed peer review records on behalf of his physician client at both stages. During the peer review appeal, the hospital refused to produce the subpoenaed records. Then, on judicial review, the hospital persuaded the lower court to quash the second subpoena. The Court of Appeals held that the physician had a clear statutory right to the materials in the course of his peer review appeal, and reversed the lower court on that basis alone. Accordingly, it did not even have to address the lower court’s action in failing to uphold the second subpoena – although the result would undoubtedly have been the same. Crow v. Penrose-St. Francis Healthcare Sys.,292 P.3d 1018 (Colo. App. 2012). The Colorado Supreme Court then refused to accept the hospital’s attempt at a further appeal.

This is the latest victory Tom has obtained in the Colorado appellate courts on behalf of the same physician client against the same hospital. In 2010 the appellate court first reversed the lower court, upholding the physician’s right to sue the hospital for damages over the faulty peer review process as soon as that administrative proceeding was completed. Crow v. Penrose-St. Francis Healthcare Sys., 2010 WL3169839 (Colo. App. 2010).

Together, these appellate victories do much to enable Colorado physicians to protect themselves when they become involved in peer review proceedings with hospitals.