U.S. Supreme Court Rules on Employee Whistleblower Protections

On Wednesday, February 21, the U.S. Supreme Court issued a decision ruling that whistleblowers protected by the Sarbanes-Oxley Act and the Dodd-Frank Act are limited to employees who provide information concerning violations of those laws to the Securities and Exchange Commission.

February 2018
eSports Legislation in Maryland

On January 19, 2018, Maryland House Bill 283 was introduced by Republican Delegate Robin Grammer. The bill exempts competitive video games, known as eSports, from the state’s laws banning wagering and gambling.

February 2018
Data Protection: WHOIS Ready to Enforce Your Trademarks?

Both global and US-based businesses have been advised by their EU counsel that as of May 25 2018, the EU General Data Protection Regulation (679/2016) will apply to all online offers of goods or services to EU-based natural persons. The law will make the collection of data and tracking of online activity illegal, except where express consent is obtained and where such consent is not “tied” to the receipt of goods or services (i.e., a ‘check the box’ form of consent is not expected to be usable).

Internet Gaming Legislation in Massachusetts

Senator Eileen M. Donoghue has introduced Senate Bill 2273 (“SB 2273”) into the Massachusetts legislature to regulate online gaming, daily fantasy sports, and online sports betting. While the focus of the bill is currently on daily fantasy sports, as the Legislature needs to act by July 31, which is when temporary authority allowing daily fantasy sports to operate in the state expires, the scope of the overall bill is concerning.

The Tribal Clean Energy Development Year in Review – 2017 Impacts and 2018 Forecast

During 2017 there were several key sets of action – at the federal, state, local, and industry levels –that have, or will, directly impact Indian clean energy development opportunities. Some of these actions will benefit Indian tribes seeking to develop clean energy resources or becoming more energy self-sufficient. 

February 2018
Exhausting the Possibilities

The U.S. Supreme Court’s unanimous decision in Impression Products, Inc. v. Lexmark International, Inc. reflected an increased adherence to the doctrine of patent exhaustion.1 Although the opinion, authored by Chief Justice John Roberts, roundly rejected Lexmark’s attempts to limit use of its patented ink cartridges after their initial sale, analysis of the opinion suggests that there may still be options going forward.

February 2018
State-run Lottery Game 'Keno' Faces Opposition From Navajo Nation and Center for Arizona Policy

PHOENIX -- Plans for what could be an instant state-run numbers game hit a snag Wednesday as an attorney for the state's largest tribe warned lawmakers it would blow up a decades-old agreement.

Arizona Court of Appeals Update: Real Estate Options Without Key Terms Will Not Be Enforced

An option to purchase is often part of a lease contract.  But beware: if an option lacks key terms, the courts in Arizona will likely not enforce it.  At least that was the key takeaway in a recent Arizona Court of Appeals decision, which held that specific performance of an option was unavailable where that option’s express terms were vague and incomplete.

Perfecting a Mechanic's Lien in Nevada

The Nevada Revised Statutes set forth the scope and requirements for perfecting a mechanics’ lien. A “construction lien” is a statutory lien in favor of contractors, materialmen and others to secure payment of labor rendered and services provided. A “construction lien” is also known as a “mechanics’ lien,” “materialman’s lien,” “subcontractor’s lien” and various other names. The Nevada statutory scheme, Chapter 108, refers to these liens as “mechanics’ liens.”

Does the Experimental Use Exception in Patent Law Have a Future?

The experimental use exception, part of U.S. patent law for nearly two centuries, is becoming obsolete. Recent court decisions and changes under the America Invents Act (AIA)1 have raised doubts about the continued viability of the doctrine.

Third-Party Payments to Estate Professionals: Avoiding the Traps

Many debtors who need chapter 11 relief inevitably lack the cash to file a case, but for those lawyers who are unable to contribute their time pro bono, getting paid is important. In addition to the debtor’s assets or income, a distressed chapter 11 debtor might have third-party sources for payment to debtor’s counsel. There are at least three hurdles or traps involving third-party sources of payment, however: disclosure of third-party payment, court approval of employment where payment will be made from a third party, and court approval of payment by a nondebtor third party.

Making Your Passion Your Paycheck: Legal Issues for Entrepreneurs in the Outdoor Industry

Marla Hudgens, Partner, and Holly Logue, Of Counsel, recently presented a webinar in collaboration with the Outdoor Industry Association on the most common legal issues facing start-up companies in the sports and outdoor recreation industry space.

Non-Party Responses to Preservation Demands

Federal Rule of Civil Procedure (FRCP) 45 sets out the rules that parties must follow when issuing or responding to a subpoena in federal litigation. Yet non-parties are increasingly being asked to preserve potentially relevant electronically stored information (ESI) before a complaint has been filed or a subpoena has been served. To help these non-parties determine the best course of action and narrow their preservation obligations, counsel should be familiar with the FRCP 45 framework and common objections to non-party preservation demands.

Supreme Court Case Could Have Huge Impact On Challenging Patents

On November 27, 2017, the U.S. Supreme Court heard oral argument in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, a case examining the constitutionality of inter partes review proceedings before the United States Patent and Trademark Office (“PTO”).

Nevada Opens Its Doors - US State Becomes More Accessible for Manufacturers of Gaming Devices and Content With Assembly Bill 75

Manufactures of traditional gaming devices and, more recently, skill-based content, have often been deterred from showcasing their products in the US state of Nevada because of the state's arduous barriers to entry.

November 2017
Article III and Class Certification

When seeking or opposing class certification, most of us begin and end our analysis under the Rule 23 framework. This is hardly surprising; after all, Rule 23 governs the certification process. The problem, however, is that focusing on Rule 23 can sometimes blind attorneys to critical constitutional doctrines often at play during certification proceedings.

DMCA Amendment Affecting Designated Agent Requires Registration By December 31, 2017

The Digital Millennium Copyright Act (“DMCA”), among other things, provides a safe harbor from copyright infringement liability for online service providers and website owners that allow third parties to post content onto or through their websites or other online platforms.


Increased Legalization of Marijuana Could Impact Fight Over Trademarks

It has long been a practice in the marijuana edibles industry to infringe well established brands, particularly those that operate in the snack food marketplace. A recent example of this type of knockoff product practice is TRAPATIO which clearly infringes the TAPATIO trademarks:

October 2017
Public vs. Private: Advantages, Disadvantages and Trends in Raising Capital

The closing concludes and a company suddenly has $50 million in cash in its bank account from the sale of its stock. Champagne corks are popped and celebration ensues for a brief period. “Going public” is an exciting event for all involved and may provide many advantages to the company’s operations. However, being a public company has certain disadvantages that should also be considered.

California Bans Employers From Asking About Salary History Information

Beginning January 1, 2018, California employers will no longer be able to ask prospective applicants about their salary history under a new law (A.B. 168) Governor Jerry Brown signed last Thursday, October 12th.

Does Your Fair Credit Reporting Act Disclosure Form Contain a Liability Waiver?

In a case of first impression, the Ninth Circuit held in Syed v. M-I, LLC that an employer violates the Fair Credit Reporting Act (FCRA) when it procures a job applicant’s consumer report after including a liability waiver in the disclosure form mandated by the FCRA. The Court also held that including a liability waiver in the disclosure form amounts to a willful violation of the FCRA, thereby subjecting the employer to statutory damages, punitive damages, attorneys’ fees and costs.

Five areas to address in distribution agreements

Distribution partnerships, like marriages, are entered into during a period of optimism and excitement. You make a great product and found the right partner to help take it to market. It’s a relationship that will last a lifetime, right? Maybe. 

Internet Gaming Legislation in Michigan

On September 12, 2017, House Bill 4926 (“HB 4926”) was introduced into the Michigan legislature by Representatives Iden, Crawford, Kosowski and Kesto. The bill seeks to legalize internet gaming, and impose taxes and fees on internet gaming operators. HB 4926 includes language that would give state regulators up to one year to promulgate rules and regulations that would cover the licensing and operation of online gaming sites. 

Battle for Bucks-Chapter 7 Trustee Lawsuits Against Noncreditors of Family-Owned Businesses

These issues are not easy to resolve and involve lots of negotiation, interviews, forced mediation, discovery, expert testi¬mony and, sometimes, a trial. “Bucks” are hard to come by in chapter 7, and creditors are facing newer — and more aggressive — forms of fraud­ulent-transfer actions.

Websites and Apps: the New ADA Lawsuit Frontier?

What are businesses’ obligations to make websites and mobile applications accessible to individuals with disabilities? Business owners and operators may want to pay close attention to these developments to ensure their businesses comply with their obligations and avoid liability.

Employers Must Use Revised Form I-9 Beginning September 18, 2017

The U.S. Citizenship and Immigration Services has released a revised version of Form I-9. The form is used to verify the identity and employment authorization for each individual hired for employment in the U.S. All U.S. employers must complete a Form I-9 for every individual hired. Employers should be aware that the revised form must be used beginning Sept. 18, 2017.

Report of the Massachusetts Special Commission on Online Gaming

Section 137 of Chapter 219 of the Acts of 2016 created a special commission to investigate, study, and make recommendations on the issue of online gaming and daily fantasy sports (the “Special Commission”). The nine member Special Commission convened for the first time on October 31, 2016, and held six meetings where they heard testimony from the public and industry experts.  Witnesses read from prepared testimony and answered questions from the commission members.

Wall Street Main Street: DAO offerings are DOA

It should be noted that The DAO is only tangentially connected to virtual currency such as “Bitcoins” and “Ether.” The DAO (“Decentralized Autonomous Organization”) is an Internet-based “Thing.” To get involved in the Thing, one must transfer to it a bunch of virtual currency Ethers. The trick here is that to obtain these virtual Ethers, one must pay money or money’s worth to someone else who has them to sell.

September 1st Marks New Era for Developers and Lenders in the Colorado Residential Condominium Market

Over the past several years (and during the last residential real estate boom), certain Colorado laws have proven to favor the position of condominium boards over that of developers in disputes over construction defects. As a result many residential developers have not participated in the condominium market during this time. As of September 1, 2017, however, the balance of power is shifting and lenders and developers should take notice of the new, more favorable environment.

Leveling the Playing Field for FINRA Rule 12206 Eligibility Motions

The U.S. Supreme Court’s decision in CalPers v. ANZ Securities, Inc. provides compelling new support for a respondent arguing an eligibility motion before a FINRA arbitration panel. With the weight of the Court on their side, broker-dealers may have their own opportunity to level the playing field.

Supreme Court rulings limit where a corporation may be sued

The concept of “home” has attracted significant attention from the U.S. Supreme Court, limiting the locations where a corporation can be sued. These decisions will be helpful to local corporations finding themselves defending large lawsuits filed far from home, and in jurisdictions hand-picked by plaintiffs that are known to be plaintiff-friendly.

Employers must comply with paid sick time law by July 1

If you have not yet put a plan in place to comply with Arizona’s new paid sick time law, you only have a few days remaining to do so, and the consequences for not doing so can be steep.

Ten Days Left to Comply with New Paid Sick Leave Law Affecting All Arizona Employers

If you have not yet put a plan in place to comply with Arizona’s new paid sick leave law, you only have a few days remaining to do so, and the consequences for not doing so can be steep. The potential penalties for failing to comply with the law include:

Supreme Court Holds "Church Plan" Need Not Be Established by a Church

Generally speaking, employee benefits are subject to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. (ERISA). Various types of employee benefit plans, however, are exempt from ERISA. One of ERISA’s exemptions is for “church plans.”

Nevada Non-Compete Law Changes Again After Passage Of AB 276

Assembly Bill 276 (AB 276) significantly changes Nevada’s law on restrictive covenants of non-competition. 

"Prevailing Party" Clarified by Arizona Supreme Court

Arizona is one of very few jurisdictions that has a statutory provision that allows a court to award reasonable attorneys’ fees to a party that prevails in an “action arising out of contract.” Until now, however the has been an open issue regarding the "prevailing party" language.

Why A "Mundane" Online Promotion May Have Not So Mundane Gambling Consequences

Unequivocally, the Internet and social media have become the most efficient mediums operators use in order to disseminate information and sell their products/services, connect with their customers and strengthen their brand. With this availability and convenience, also comes numerous opportunities to run afoul of the law

Arizona Supreme Court Holds Construction-Related Statute of Repose Applies to Public Entities and Bars Claim

Arizona Revised Statutes (A.R.S.) § 12-552, also known as the Statute of Repose, requires a party to bring a contract action relating to the design, engineering, or construction of improvements to real property within eight years of substantial completion of the work (or nine years if the claim involves latent defects discovered in the eighth year after substantial completion). The statute requires the claim to be brought within this time period even if the claim arose long after project completion. Put more simply, Arizona law imposes a strict deadline of either eight or nine years on the assertion of contract-based claims arising out of construction projects.

New Paid Sick Leave Law Affecting All Arizona Employers To Take Effect July 1, 2017

If you have not already done so, it is time to start putting a plan in place for compliance with Arizona’s new paid sick leave law.  Among other penalties, an employer who fails to provide paid sick time as required can be found liable for triple damages.  By July 1, 2017, all businesses with employees in the State of Arizona must be in compliance, including augmenting payroll practices to ensure complete and accurate reporting of accrued sick leave on pay stubs, preparation of required notices to employees, and updating policies and procedures. 

Swiss-U.S. Privacy Shield Framework is Open for Business

On April 12, 2017, U.S. Secretary of Commerce Wilbur Ross announced that the newly launched Swiss-U.S. Privacy Shield Framework (Swiss Privacy Shield) is now accepting self-certifications.