Chapter 13 - § 13.5 • REMEDIES

• Jurisdiction: Colorado

§ 13.5 • REMEDIES

§ 13.5.1—Pre-judgment Remedies

COCCA permits a claimant to seek prejudgment injunctive relief from the court, including a temporary restraining order and/or preliminary injunction. COCCA eliminates one of the key elements for obtaining preliminary injunctive relief — the need to show irreparable harm. Rather, all that is required to obtain a temporary restraining order and preliminary injunction under COCCA is (1) a bond, and (2) "a showing of immediate danger of significant loss or damage," that would result if the injunction did not issue (e.g., the transfer of property or dissipation of assets).³⁶

The preliminary injunctive relief offered to COCCA claimants is broader than that which is available under RICO. Claimants seeking such relief under COCCA have successfully obtained orders freezing defendants' assets at the outset of the claim, to prevent dissipation of property and assets through trial on the merits.³⁷

§ 13.5.2—Post-judgment Remedies

The remedies available to a claimant who succeeds in proving a COCCA claim are severe and expansive.³⁸ COCCA offers treble damages, attorney fees, injunctive relief, divesture of any interest in an enterprise or real property, dissolution or reorganization of the enterprise, forfeiture of the culpable entity's charter (if organized under the laws of the State of Colorado), or revocation of the entity's authority to do business in Colorado (for non-Colorado "foreign" entities) and judgment for proceeds derived from any of the prohibited activities. Though not expressly provided for in the Act, COCCA co-defendants are subject to joint and several liability for damages awarded against them.³⁹

Colorado's legislature has expressly stated that "[t]o effectuate [its] intent and purpose . . ., the provisions of [COCCA] shall be liberally construed."⁴⁰

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Notes:

^[36] C.R.S. § 18-17-106(6). Notably, under COCCA a private civil claimant's "right or claim to forfeited property or to the proceeds derived therefrom [is] superior to any right or claim the state has in the same property or proceeds." C.R.S. § 18-17-106(7)(b).

^[37] See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh v. Kozeny, 19 F. App'x 815, 820-22 (10th Cir. 2001) (affirming district court's entry of preliminary injunction freezing assets to secure potential judgment); FDIC v. Antonio, 843 F.2d 1311, 1313-14 (10th Cir. 1988) (upholding...