Tiffany E. Alberty – Class Action Defense

June 5, 2026June 5, 2026 by Gerald L. Maatman, Jr.

Colorado Federal Court Denies EEOC Application To Enforce Administrative Subpoenas Against Psychological Testing Firm In Discrimination Investigation

By Gerald L. Maatman, Jr., Tiffany Alberty, and Brett Bohan

Duane Morris Takeaways: On June 3, 2026, in Equal Employment Opportunity Commission v. Psychological Dimensions, No. 1:26-MC-00072 (D. Colo. June 3, 2026), Senior Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado denied the EEOC’s application for an order to show cause as to why two administrative subpoenas served on Psychological Dimensions should not be enforced. The EEOC sought information regarding a pre-offer psychological assessment administered to job applicants for the Arapahoe County Sheriff’s Office. The Court concluded that the subpoenas sought information that had nothing to do with the discrimination allegedly suffered by the charging party and declined to hold that the EEOC’s investigative authority is unlimited.

Courts typically give wide berth to the EEOC with its administrative, pre-lawsuit subpoenas, but this ruling illustrates that courts may impose meaningful limits on the EEOC’s subpoena power where the information sought bears no connection to the harm alleged by the individual claimant.

Case Background

On June 10, 2020, Jessica Roe applied for a position as a Public Information Liaison at the Arapahoe County Sheriff’s Office (“ACSO”). (ECF 20 at 1) The application process included both pre-offer and post-offer phases. During the pre-offer phase, Ms. Roe completed a 430-plus question psychological examination, sometimes referred to as a “Job Suitability Assessment,” administered by Psychological Dimensions, a contractor to the ACSO. (Id.) Ms. Roe also took a polygraph test, provided writing samples, and participated in interviews. (Id. at 2) Following these steps, Ms. Roe was informed she was one of three finalists, had additional interviews, and was offered the job contingent upon further medical, psychological, and background investigation. (Id.)

In the post-offer phase, Ms. Roe completed another extensive psychological examination and met with the Chief Psychologist of Psychological Dimensions. (Id.)During that meeting, she disclosed a mental health diagnosis, a mental health provider, and additional information regarding prescriptions she had been given. (Id.) She was also asked to release information for the diagnosing doctors. (Id.) However, when Psychological Dimensions attempted to verify the information, the diagnosing provider could not confirm Ms. Roe had been a patient or provide records to Psychological Dimensions due to its document retention policy, so the psychologist was unable to “pass” her. (Id.) On September 14, 2020, the ACSO rescinded the job offer because Ms. Roe did not pass the post-offer psychological exam. (Id.)

On June 4, 2021, Ms. Roe filed a Charge of Discrimination with the EEOC, alleging retaliation and discrimination based on sex in violation of Title VII and disability in violation of the ADA. (Id. at 3) Nearly three years later, on March 20, 2024, Ms. Roe filed an Amended Charge to expand the allegations to include discrimination based on race, color, sex, religion, national origin, retaliation, age, disability, genetic information, and pregnancy, invoking additional federal statutes. (Id.)

On August 28, 2025, as part of its investigation, the EEOC served two administrative subpoenas on Psychological Dimensions — one pursuant to the ADEA and one pursuant to the ADA and Title VII. (Id.) The subpoenas required Psychological Dimensions to produce the Job Suitability Assessments and related communications for all individuals who answered affirmatively that they had experienced workplace sexual harassment, filed formal complaints against an employer, been involved in lawsuits, or appeared in legal proceedings. (Id. at 4)

On September 10, 2025, Psychological Dimensions objected to the subpoenas, arguing that the information was not relevant, that compliance would be unduly burdensome (requiring at least 1,500 hours), that the request infringed on the privacy and HIPAA rights of non-parties, and that the request sought proprietary trade secrets. (Id.) The parties were unable to resolve the dispute, and the EEOC filed an application for an order to show cause. (Id. at 5)

The Court’s Order

The Court denied the EEOC’s application on procedural and substantive grounds.

As an initial matter, the EEOC argued that Psychological Dimensions’ objections were both procedurally defective and untimely. (Id.) The EEOC noted that the September 10, 2025, objection letter identified only the ADEA subpoena, and there is no administrative procedure for objecting to ADEA subpoenas. (Id.) The EEOC also pointed out that objections to subpoenas issued pursuant to the ADA or Title VII are due within five days after service, making Psychological Dimensions’ objections untimely. (Id. at 5-6) The Court acknowledged the untimeliness — the objections were filed thirteen days after service — but declined to treat this delay as dispositive. (Id.)

Turning to the substance of the subpoenas, the Court identified what it characterized as a “bigger problem.” (Id. at 6) The Court recognized that the four questions in the Job Suitability Assessment potentially punished applicants for exercising their rights under discrimination laws, and the subpoenas sought information to determine whether persons who answered “yes” to those questions were consistently denied employment at the ACSO. (Id. at 7) However, that information had “no application to the charging party, Ms. Roe.” (Id.) The Court’s rationale was that it was undisputed that Ms. Roe answered “no” to all four questions, was found suitable for the position, made the short list of three finalists, and was offered the job. (Id.) The reasons her offer was rescinded were found in the post-offer evaluation, not in the pre-offer Job Suitability Assessment.

Ultimately, the Court determined it was “unwilling to hold that the EEOC’s authority to investigate discrimination in the workplace is unlimited, or that an individual’s claim that she lost a job opportunity due to discrimination opens the door to compelling a third party to produce information that has nothing to do with the discrimination allegedly suffered by the claimant.” (Id. at 7-8) For this reason, the Court denied the EEOC’s application for an order to show cause on its two administrative subpoenas. (Id. at 8)

Implications For Employers

The Court’s decision in Psychological Dimensions is a significant ruling for employers and third-party contractors who face EEOC subpoenas during the investigation of discrimination charges. The decision signals that courts may impose meaningful limits on the scope of the EEOC’s investigative subpoena power where the information sought lacks a nexus to the actual harm alleged by the charging party.

This case demonstrates that, although the EEOC’s subpoena power is broad, it is not boundless. Where the EEOC seeks to expand an investigation beyond the facts that are relevant to the charging party’s claims, courts may be willing to deny enforcement of those subpoenas. Employers who receive subpoenas that they believe extend beyond the scope of the underlying charge should carefully consider whether the information sought bears a meaningful connection to the claimant’s allegations and should be prepared to articulate that disconnect to a court.

June 4, 2026June 4, 2026 by Gerald L. Maatman, Jr.

Colorado Federal Court Allows Employer To Seek Attorneys’ Fees Against EEOC After Deeming Long COVID Claims Frivolous

By Gerald L. Maatman, Jr., Tiffany Alberty, and Bernadette Coyle

Duane Morris Takeaways: On June 1, 2026, in Equal Employment Opportunity Commission v. A&A Appliance, Inc., No. 1:23-CV-2456 (D. Colo. June 1, 2026), Chief Judge Daniel D. Domenico of the U.S. District Court for the District of Colorado granted Defendant A&A Appliances, Inc.’s (“A&A”) motion to deem the EEOC’s claims under the Americans with Disabilities Act (“ADA”) frivolous, unreasonable, and without foundation, entitling the employer to seek a full award of attorneys’ fees. This decision is an important read for corporate counsel facing employment discrimination cases, particularly EEOC-initiated litigation. The ruling demonstrates that the federal agency can face fee-shifting consequences when it pursues claims that lack evidentiary support from their inception.

Case Background

Defendant A&A Appliance, Inc. (“A&A”) employed Karima Javanzad from February 2019 to June 2020. During the early months of the COVID-19 pandemic, Ms. Javanzad sought a 12-week FMLA leave for varied reasons, including her own possible COVID-19 infection, her son’s illness, and a gastrointestinal condition. A&A approved the medical leave retroactively, covering mid-March through early June 2020. Over the following weeks, A&A and Ms. Javanzad exchanged emails, calls, and texts about when her leave would expire and whether an extension was possible. When Ms. Javanzad did not return to work after her leave ran out, A&A terminated her employment on June 10, 2020, explaining that it had offered to extend her leave only if the original FMLA-triggering condition warranted it, and that her gastrointestinal disorder (unrelated to COVID-19) did not qualify.

Ms. Javanzad subsequently filed a charge of discrimination with the EEOC in December 2020, asserting that A&A had discriminated against her based on her disability and retaliated against her for seeking a reasonable accommodation. Following its investigation, the EEOC concluded there was reasonable cause to believe A&A violated the ADA and attempted to resolve the matter through conciliation. After those efforts failed, the EEOC filed suit in September 2023 claiming: (1) failure to accommodate, (2) disparate treatment, and (3) retaliation under the ADA.

In September 2025, the Court granted summary judgment in favor of A&A on every claim, concluding that the EEOC had not demonstrated that A&A was ever on notice of a qualifying disability that required accommodation under the ADA. A&A then moved for an order deeming the EEOC’s claims frivolous, unreasonable, and without foundation so that it could recover its full attorney’s fees.

The Court’s Decision

Chief Judge Domenico granted A&A’s motion. The Court applied the standard from Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), which permits an award of attorney’s fees to a prevailing defendant in an ADA case where the court finds that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. at 422.

The Court applied three factors from the Eleventh Circuit’s decision in Walker v. NationsBank of Florida, N.A., 53 F.3d 1548 (11th Cir. 1995), which the Tenth Circuit has affirmed: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits. All three factors weighed in A&A’s favor — the EEOC failed to establish a prima facie case, A&A offered to settle, and the case was dismissed on summary judgment before trial.

The Court rejected the EEOC’s argument that the Christiansburg Garment standard is met only when a party “utterly fails to produce any evidence in support of material issues necessary to withstand summary judgment.” The Court explained that while the EEOC presented some evidence that Ms. Javanzad had a disability and requested leave, it failed to present evidence for the critical element of A&A’s knowledge of the claimed disability. As the Court emphasized, “[a] ‘health condition’ does not equate to a qualifying disability under the ADA” and “knowledge of a health condition is not necessarily knowledge of a disability.”

Importantly, the Court found that the EEOC had multiple years before initiating the action in September 2023 to investigate the facts and apply established case law. The EEOC’s own initial complaint showed that it knew Ms. Javanzad was diagnosed with vocal cord paralysis and gastritis after her June 9 endoscopy, and thus presumably after her June 10 termination, and that she was diagnosed with COVID-19 after termination. These facts undermined the EEOC’s assertion that its evidence changed throughout discovery. Moreover, fact discovery closed in July 2024, seven months before the dispositive motion deadline, and A&A raised issues of factual and legal deficiencies throughout litigation prior to summary judgment.

Finally, the Court noted that the EEOC is not a “regular plaintiff” and that courts may consider distinctions between the Commission and private plaintiffs. Quoting the Fifth Circuit, the Court observed that the EEOC “owes duties to employers as well: a duty reasonably to investigate charges, a duty to conciliate in good faith, and a duty to cease enforcement attempts after learning that an action lacks merit.” EEOC v. Agro Distribution, LLC, 555 F.3d 462, 473 (5th Cir. 2009). The Court concluded: “Ms. Javanzad might have been excused from pressing these issues. The EEOC is not.” For these reasons, the Court entitled A&A to reasonable attorney’s fees.

Implications For Employers

For employers facing EEOC-initiated litigation, this decision underscores the importance of raising factual and legal deficiencies early, consistently and persistently throughout discovery, as the Court credited A&A’s efforts to put the EEOC on notice of the weaknesses in its case. This decision also reinforces that while there is a high threshold for establishing entitlement to attorney’s fees, prevailing defendants are not without recourse when the EEOC presses claims lacking foundational evidentiary support.

April 17, 2026April 17, 2026 by Gerald L. Maatman, Jr.

Colorado Federal Court Compel Arbitration In Parking Lot Dispute, Finding Posted Signs Create Binding Contracts

By Gerald L. Maatman, Jr., Tiffany Alberty, and Brett Bohan

Duane Morris Takeaways: On April 14, 2026, in Brant, et al v. Parking Revenue Recovery Services, Inc., Case No. 1:25-CV-01771 (D. Colo. Apr. 14, 2026), Judge Gordon P. Gallagher of the U.S. District Court for the District of Colorado granted Defendant Parking Revenue Recovery Services, Inc.’s motion to compel arbitration. Plaintiffs, a group of parking lot customers who brought a putative class action, argued that they never agreed to arbitrate and that any arbitration clause was unconscionable. The Court rejected both arguments, finding that by parking in the lots, Plaintiffs assented to the terms posted on conspicuous signs — including a binding arbitration clause — and that the clause was not unconscionable. This ruling reinforces that businesses can form enforceable contracts, including arbitration agreements, through conspicuously posted signage, and that consumers who fail to read posted terms are nonetheless bound by them.

Case Background

Plaintiffs Brian Brant, Brooke Fitz, Robert Caldwell, and Mayenssi Montiel each parked at various parking garages managed by Defendant Parking Revenue Recovery Services, Inc. (“PRRS”) in Denver and Little Rock between 2023 and 2025. (ECF 36 at 1-2) At each of these lots, PRRS posted large red signs at the entrances, exits, and pay stations. (Id. at 2-14) The signs stated, in relevant part, “This is a Contract,” instructed customers to “Read these terms PRIOR to parking,” and included a capitalized, boldfaced “ARBITRATION” heading explaining that “[b]y parking on this Facility, you hereby agree that the sole remedy for all unresolved disputes is binding arbitration, and specifically waive the right to jury trial, class action and/or class arbitration”. (Id.)

Each of the Plaintiffs claimed they did not see the signs. (Id. at 7, 12, and 14.) Some faulted the location, lighting, and number of signs, while others argued there were no gates or speed bumps to slow drivers down enough to read the posted terms. (Id.)

The Court’s Order

The Court granted PRRS’s motion to compel arbitration, addressing both of Plaintiffs’ arguments against enforcement. (Id. at 16-21.)

First, as to whether a valid agreement to arbitrate existed, the Court noted that two other courts in Colorado had recently addressed the same issue with the same defendant. (Id. at 16.) Adopting the analysis of Chief Judge Daniel D. Domenico in Butler v. Asura Technologies USA, Inc., the Court held that a contract was formed when Plaintiffs manifested assent to the implied terms of the parking agreement by choosing to park in the lots. (Id. at 17.) The Court emphasized that the fundamental exchange — temporary use of a parking spot in exchange for a promise to pay — was sufficient to establish contract formation, and that the operator of a parking lot may modify or add to the basic terms by posting signs. (Id.) The Court analogized the posted signage to online “clickwrap” contracts, noting that users of such contracts are regularly bound by terms they never actually read. (Id. at 19.) Accordingly, whether Plaintiffs chose to read the signs was irrelevant because they agreed to the posted terms when they decided to park their cars on PRRS’s lots. (Id. at 18.)

The Court also rejected Plaintiffs’ argument that the arbitration clause was insufficiently specific because it lacked details regarding the scope, rules, or effect of any arbitration ruling. (Id. at 19.) Citing the Supreme Court of Colorado’s long-standing precedent in Guthrie v. Barda, 533 P.2d 487 (Colo. 1975), the Court held that a clause stating disputes “shall be submitted to binding arbitration” is sufficient and enforceable, even without additional procedural details. (Id.)

Second, the Court addressed Plaintiffs’ unconscionability defense. Applying the seven-factor test under Colorado law, the Court acknowledged that the first factor — a standardized agreement between parties with unequal bargaining power — may point toward unconscionability but noted that consumer contracts of adhesion are ubiquitous in modern commerce. (Id. at 20.) The remaining factors, however, weighed against a finding of unconscionability: Plaintiffs had the opportunity to review the terms before parking, the arbitration provision was written in large font against a contrasting red background and arbitration is a commercially reasonable method of dispute resolution. (Id.) The Court concluded bluntly that “if Plaintiffs did not wish to agree to the terms, they could have parked somewhere else.” (Id. at 21.)

The Court ordered the case stayed and administratively closed pending the conclusion of arbitration. (Id. at 22.)

Implications For Employers And Businesses

The Court’s decision in Brant v. Parking Revenue Recovery Services, Inc. affirms that conspicuously posted signage can create binding arbitration agreements with consumers, even in the absence of a signed written contract, a clickthrough mechanism, or any affirmative acknowledgment. For businesses that rely on physical signage to communicate contractual terms — including parking operators, event venues, and service providers — this decision provides a roadmap for drafting and displaying enforceable arbitration clauses. Specifically, businesses should ensure that their signs are prominently displayed, use clear language and contrasting formatting, and explicitly state that use of the premises constitutes acceptance of the posted terms, including arbitration. The decision also reinforces that a consumer’s failure to read posted terms does not relieve them of their contractual obligations, further underscoring the importance of adequate notice over actual knowledge.

September 9, 2025September 9, 2025 by Gerald L. Maatman, Jr.

Colorado Federal Court Grants Summary Judgment For Employer In EEOC Case Alleging Long COVID Complications

By Gerald L. Maatman, Jr., Tiffany Alberty, and Brett Bohan

Duane Morris Takeaways: On September 3, 2025, in Equal Employment Opportunity Commission v. A&A Appliance, Inc. d/b/a Appliance Factory Outlet, Inc., No. 1:23-CV-02456 (D. Colo. Sept. 3, 2025), Judge Daniel D. Domenico of the District Court for the District of Colorado granted Defendant A&A Appliance, Inc.’s motion for summary judgment as to the EEOC’s claims. The Court held that the EEOC failed to make a prima facie case of violations of the Americans with Disabilities Act because it had not shown Defendant was aware of a disability or request for accommodation from the charging party. This ruling illustrates the steps an employee must take to adequately demonstrate a disability and request an accommodation and the situations where an employer may be justified in terminating an employee who fails to return from taking leave under the Family Medical Leave Act.

Case Background

Defendant A&A Appliance, Inc. (“Defendant”) employed Karima Javanzad (“Claimant”) from February 2019 to June 2020. (ECF 172 at 1) Shortly before her termination, in April, the Claimant requested a retroactive 12-week leave of absence under the Family Medical Leave Act (“FMLA”), citing various ailments for her and her son, including COVID-19. Id. at 1-2. Defendant granted the Claimant’s FMLA request from March 12 to June 7. Id. at 2. During her leave, the Claimant contacted Defendant on several occasions to inquire regarding the length of her leave and whether she could extend it. Id. Defendant consistently communicated with the Claimant and informed her that she could extend her leave “if the triggering condition for FMLA was extended by [her] medical provider.” Id. The Claimant did not return to work on June 8, she did not respond to Defendant’s requests to discuss her position, and she did not provide nor receive any confirmation that she ever contracted COVID-19 nor had any disability requiring an accommodation until after the end of her leave. Id. at 6-7. The last doctor’s note the Claimant received in May stated that she did not have any work restrictions. Id. at 6. On June 9, Defendant informed the Claimant that her FMLA had been exhausted and requested to further discuss her position, but Claimant never responded. Id. at 7. As such, Defendant terminated her employment on June 10. Id. at 7.

In response to her termination, the Claimant filed a charge with the Equal Employment Opportunity Commission (the “EEOC”), alleging disability discrimination and retaliation under the Americans with Disabilities Act (the “ADA”). Id. at 2. When conciliation efforts between the parties failed, the EEOC filed a lawsuit on behalf of the Claimant against Defendant on the same grounds. Id. Following discovery, both parties moved for summary judgment. Id.

The Court’s Order

The Court granted summary judgment in favor of the Defendant on both the ADA discrimination and the retaliation counts. Id. at 4. On each count, the Court reasoned that the EEOC must show that the Claimant was either disabled or that she was engaged in a protected activity for which she was discriminated or retaliated against. See id. at 4-10. The Court concluded that the EEOC could prove neither element.

First, the Court noted that the Claimant provided three possible disabling illnesses, COVID-19, vocal cord paralysis, and gastritis. Id. at 7. However, she never received a formal diagnosis for any of them until after she was terminated. Id. Moreover, while the Claimant asserted that she was unable to return to work, her May doctor’s note contradicted her statements by indicating that she “did not have any [work] restrictions” and that she could return to work without issue. Id. at 6-7. The Court concluded that these “inconsistent representations regarding [Claimant’s] ability to return to work” coupled with the lack of clarity regarding her illness meant that “Defendant cannot be found to have been on notice of a disability that required accommodation under the ADA.” Id. at 7 (emphasis added).

Second, in the alternative, the Court held that, even if the EEOC had presented evidence that the Claimant suffered from COVID-19, the EEOC’s claims still failed. Id. The Court reasoned that, to recover for a claim for failure to accommodate or for retaliation for requesting an accommodation, an employee must “make an adequate request, making clear that she wants assistance for her disability.” Id. at 8 (internal quotation marks omitted). According to the Court, the Claimant’s requests for additional information regarding her remaining leave did not amount to an accommodation request. Id. In fact,“Ms. Javanzad never made an explicit request for an accommodation from Defendant — even for an additional leave of absence — until after her FMLA leave expired.” Id. And when she did request additional leave, the Claimant did not provide any details about the leave she was requesting. Id. The Court concluded that these facts provided an independent basis for entering summary judgment against the EEOC. Id. at 9.

Implications For Employers

The Court’s decision in A&A Appliance, Inc. serves as a reminder to both employees and employers. Although employers must engage in the interactive process for both ADA and FMLA purposes to reasonably accommodate employees’ disabilities, the onus rests with the employee to demonstrate a disability and to request an accommodation, effectively providing notice to the employer of the claimed disability. If the employee fails to satisfy either of these prerequisites, an employer is not on notice of any disability and may be justified in terminating the employee’s employment.

February 28, 2025 by Tiffany E. Alberty

Unjust Enrichment Defeated: Colorado Supreme Court Rules Unjust Enrichment Class Claim Cannot Stand

By Tiffany E. Alberty and Gerald L. Maatman, Jr.

Duane Morris Takeaways: On February 24, 2025, in CSU Board of Governors v. Alderman, Case No. 23-SC-565, 2025 CO 9 (Colo. Feb. 24, 2025), the Colorado Supreme Court reversed the Court of Appeals in finding that an unjust enrichment class claim over COVID-19 tuition reimbursement may proceed even though it contained the same subject matter in which a breach of contract claim was dismissed. As a result, a plaintiff cannot properly state a claim for unjust enrichment if an enforceable contract covers the same subject matter as those claims.

Case Background

In April 2020, Renee Alderman (“Alderman”) filed a putative class action against Colorado State University (“CSU”) in state court, accusing the university of taking tuition and student fees and failing to refund the tuition and fees, when the university was closed for six-weeks due to the pandemic in Spring of 2020, and thus breaching their contract or in the alternative, enriching itself with student money. 2025 CO 9, at 3.

Alderman argued that CSU had a contractual obligation to provide “live, in person classroom instruction in a physical classroom” and “access to on-campus athletic events, on-campus computers and technology, and other in-person events” in exchange for student payments inclusive of tuition and fees. Id. at 6. However, CSU noted that it offered “fully online distance-learning programs” which were priced differently than in-person classes in Fort Collins. As such, CSU moved to dismiss Alderman’s complaint under 12(b)(5) – failure to state a claim, citing it had authority to temporarily cease operations under C.R.S. § 23-30-111, which covers exigent circumstances such as in the event of “the prevalence of fatal diseases of other unforeseen calamity.” Id. at 7.

Ultimately, the district court agreed with CSU and dismissed the case in agreeing with the language of C.R.S. § 23-30-111, stating there was no breach because the statute allows for temporary suspensions such as that of Spring 2020. The district court also dismissed the unjust enrichment claim based upon the same statute and contract, concluding it covered the same subject matter. Id. at 8.

Alderman appealed both rulings. The Colorado Court of Appeals (“COA”) upheld the dismissal of the breach of contract claims but reversed the district court’s ruling on the unjust enrichment claim. The COA emphasized that “the contract obligations were obviated when it invoked the statute,” leaving Plaintiffs with no enforcement rights because the statute made her contract claims unenforceable. Id. at 13. CSU then petitioned the Colorado Supreme Court on her unjust enrichment claim in July 2023, which the Supreme Court accepted.

The Supreme Court’s Decision

The Colorado Supreme Court focused on whether an unjust enrichment claim can be properly asserted when it mirrors a contract that: (1) covers the same subject matter; and (2) remains legally enforceable.

The focus on unjust enrichment was determinative a “quasi-contract or contract implied-in-law that does not depend on a promise or privity between the parties,” but when an unjust enrichment claim and breach of contract involve the same subject matter, it is “mutually exclusive.” Id. at 18. The Supreme Court emphasized that this means “a party may not assert a claim for unjust enrichment is a valid contract covers the same subject matter,” which also holds true even if a party is unable to recover under the contract. Id. at 18-19.

Yet, there are two exceptions to this rule for unjust enrichment and same subject matter of a breach of contract: (1) when the express contract fails or (2) the claim covers matters which are outside (or arose after) the contract. Id.

The Supreme Court held that breach of contract and unjust enrichment claim involved the same subject matter (i.e., tuition and fees for educational services). Id. at 19. It reasoned that the COA conflated the “breach of contract claim with the failure of the contract itself,” meaning that even though Alderman’s inability to prove CSU breached the contract by temporarily suspending in-person operations did not render the whole contract void or unenforceable. Id. In sum, all other contractual rights existed between both Alderman and CSU.

Ultimately, the Supreme Court ruled that Alderman’s unjust enrichment arguments merely serves as “gap-filler provision to provide a remedy” where a contract is silent about her “desired term” is not grounded in case law or principle; thus, Alderman’s approach for the Court to expand its reach of unjust enrichment jurisprudence is unfounded. Id. at 21. For these reasons, the Supreme Court opined that Alderman’s unjust enrichment claims fail as a matter of law.

Implications Of The Ruling

The Colorado Supreme Court’s ruling underscores the importance evaluating all claims raised by plaintiffs in both breach of contract and equity principles (such as unjust enrichment) to ensure those claims rise from the same subject matter to ultimate defeat the same claim raised through different legal theories at the outset of a lawsuit.