Broncos ask Denver court to confirm that right of first refusal is terminated

In Denver District Court on Monday night, lawyers representing the parent companies of the Broncos asked a judge to rule that former owner Edgar Kaiser’s estate does not have the right of first refusal of any sale.

“This lawsuit is a proactive, necessary step to ensure an efficient transition of ownership, whether the team remains in the Bowlen family or is sold,” longtime Bowlen attorney Dan Reilly said in a statement. “We are confident that the court will find the right of first refusal is no longer enforceable, consistent with Colorado law and the intentions of Pat Bowlen and Edgar Kaiser in their written agreement more than 36 years ago.”

Translation: If the Broncos’ next controlling owner is Brittany Bowlen, the preferred choice of the Patrick D. Bowlen trustees, or if the team is sold to an outside buyer, they should be able to move forward without interference from Kaiser’s camp.

Kaiser died in January 2012 and Bowlen died in June 2019.

A source said if this lawsuit carries into the summer, it will not cause a delay in the Arapahoe County District Court case pitting Bowlen daughters Beth Bowlen Wallace and Amie Klemmer against the trustees seeking to invalidate the 2009 trust on the grounds their father did not have the capacity to sign his estate-planning documents. The trial is scheduled to begin July 12.

The defendants in the right of first refusal case are Susan Mullen Kaiser (Edgar’s widow), Howard Kellough and Hans Krutzen.

This was news to Kellough and Krutzen, both of whom live in the Vancouver, B.C., area, when contacted Tuesday by The Denver Post.

“This is a mystery,” said Kellough, a tax attorney who did work for Kaiser.

“Total surprise to me,” said Krutzen, who said he worked for the Canadianbased Kaiser Resources in the late 1970s.

Krutzen said he lasted talked to Mullen Kaiser in mid-2020, but did not have updated contact information.

Also listed as defendants are ROFR Holdings, Ltd., and Twelve LLC.

This part of the Broncos ownership soap opera began in May 2020 when James Kilroy of the Snell & Wilmer law firm sent Broncos lead counsel Rich Slivka a letter stating his client be sent “notice” if the team named a new controlling owner or was sold. Kilroy did not return an email and phone message to The Post seeking comment.

When Kaiser sold 60.8% of the Broncos to Bowlen in 1984, a right of first refusal was included in the agreement, which is common in sales when the sides have no acrimony. A year later, Bowlen bought the remaining 39.2% from John Adams and Tim Borden for $20 million.

In 1998, Bowlen offered retired quarterback John Elway the opportunity to buy 10% of the team for $15 million. Kaiser opposed, saying Bowlen had to offer any piece of the Broncos to him before he offered it to another party. State and federal courts ruled in Bowlen’s favor although Elway did not take Bowlen up on the offer; the court said the right of first refusal only applied to the 60.8% ownership interest that Bowlen bought from Kaiser.

Bowlen’s win, though, did not totally eliminate the right of first refusal, which gave Kaiser 14 days to decide whether to buy the team if Bowlen found a buyer.

It is likely the Broncos’ parent companies believe that the right of first refusal was eliminated when Kaiser died and the obligation certainly disappeared when Bowlen passed away after a long battle with Alzheimer’s.

In the right of first refusal filing, Reilly requested a “declaratory judgment,” which puts the decision in the judge’s hands.