Fall 2020
CBCA Offers a Sneak Peek at Pandemic-Related Delay

No question, the ongoing COVID-19 pandemic is giving rise to multitudes of delay claims (along with claims of other varieties) by contractors against the federal government. Since the effects of the COVID virus did not begin to be felt until March of this year, even the earliest of these virus-related claims have yet to work their way through the dispute resolution process.

Summer 2020
GAO Affirms Denial of Protest by Contractor Who Failed to Submit an Adequately Written Proposal

The Government Accountability Office (GAO) recently denied a protest brought by a contractor who failed to submit an adequately written proposal for the award of a federal contract. Patriot Defense Group, LLC, B-418720.3, August 5, 2020, 2020 WL 4501318. This decision breaks no new ground legally but it serves as a timely reminder of how failure to identify the assumptions upon which a proposal is based will yield a disappointing result.

July 2020
State of Colorado General Liability COVID-19 Quick Guide

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics.

July 2020
Bacardi's 'Untameable' Rum Pillaged Rival's TM, 9th Circ. Told

A rival liquor maker accusing Bacardi of pirating the concept for its "Untameable" rum campaign urged the Ninth Circuit on Friday to toss a district court's finding that its trademark priority doesn't allow it to introduce a new product and then claim marketplace confusion after Bacardi's alleged infringement began.

During oral arguments, Lodestar Anstalt's attorney, G. Warren Bleeker of Lewis Roca Rothgerber Christie LLP told the three-judge panel that a California federal judge erred when she denied summary judgment, arguing that trademark law gives a registered mark owner a number of years to develop a product, so that if another company infringes the mark, the owner can still protect its intellectual property.

July 2020
Creditors Attacking the Trust

Twenty years ago, in the spring of 2000, the Colorado Supreme Court released its decision in Lagae v. Lackner. The decision rejected a creditor's attack on a valuable Colorado ranch.

Spring 2020
Summary Judgment Granted in Favor of Insurer on Bad Faith Claim

In the recent case of Centeno v. American Liberty Insurance Company, No. CV-18- 01059-PHX-SMB, 2019 WL 4849548 (D. Ariz. Oct. 1, 2019), the U.S. District Court for the District of Arizona expounded upon the evidentiary burden a plaintiff must satisfy to demonstrate insurer bad faith.

Spring 2020
Defense Department Issues Guidance to Contractors on Managing Impact of COVID-19

On March 30, 2020, the Office of the Under Secretary of Defense issued a memorandum to procurement officials throughout the Department of Defense on managing the effects of the COVID-19 virus on defense contracts. This memorandum is authored by Kim Herrington, the Acting Principal Director, Defense Pricing and Contracting. Although the memorandum lacks detail, it should be viewed as an encouraging sign from the DoD that it recognizes its contractors are impacted by the virus and that they are entitled to seek relief.

June 2020
State of Colorado Force Majeure Law Compendium (During COVID-19 Pandemic)

The spread of the COVID-19 pandemic has raised a number of significant and novel legal questions. One of the most important of these questions to the business community is how COVID-19 interacts with the “force majeure” clauses which are included as a matter of course in contracts of all varieties. This memorandum provides an overview for the USLAW NETWORK Compendium of Law on relevant considerations with respect to invoking “force majeure” clauses in contracts in light of the ongoing COVID-19 crisis.

June 2020
State of Colorado Workers' Compensation COVID-19 Quick Guide


May 2020
Sales and Use Taxes: California

A Q&A guide to sales and use tax law in California. This Q&A addresses key areas of sales and use tax law such as tax scope, multistate transactions and collecting taxes, and filing returns. Answers to questions can be compared across a number of jurisdictions (see Sales and Use Taxes: State Q&A Tool).

Checklist for Construction Employers as They ‘Reopen' for Business

Although many employers in the construction industry have continued to operate as essential businesses during the COVID-19 pandemic, some have allowed certain employees to work from home where possible. As states begin to loosen restrictions and “reopen” for business in the coming weeks and months, construction employers will need to implement new, and possibly permanent, policies and guidelines designed to keep the construction workforce safe.

Setting a 'high bar' for federal relations

When Jake Schellinger first visited the National Congress of American Indians Embassy of Tribal Nations in Washington, D.C., in the summer of 2011, he immediately knew it was a place he’d one day want to work if the opportunity presented itself.

Schellinger was then a student at the Arizona State University Sandra Day O'Connor College of Law, and he was spending the summer in the nation's capital for the Udall Foundation’s Native American Congressional internship program. He recalls being impressed by the building, the people who worked there and the fact that tribal governments had an embassy in Washington, D.C.

Creditor Options in the COVID-19 Pandemic

As the fallout from COVID-19 widens and the prospect of an economic downturn looms, lenders are likely to focus more on protecting their collateral. Although many lenders are negotiating accommodations with borrowers in the short term, some of these accommodations will inevitably be unsuccessful and lead to defaults.

Online Social Casinos Gain in Importance Thanks to COVID-19

In a world of shut-off slot machines, empty hotel rooms and shuttered casinos, concerns are beginning to arise as to how to keep patrons engaged with a brand. Online social gaming services that provide “freemium” online casino games is one solution to fostering and maintaining patron loyalty and brand recognition. 

The Unintended Consequences of Rent Default

As we navigate through these uncertain times and face challenges like never seen before in the world of commercial leasing, landlords and tenants should be cautioned against the unintended consequences of their actions. The coronavirus crisis began with shutdowns all across the country, and sharp falls in revenues followed quickly thereafter. As soon as it became apparent that business-as-usual was turning into business-out-of-the-ordinary, tenants started assessing long term sustainability in a world subject to stay-at-home orders. Operations were shut down, some by law and others by necessity, but whatever the reason, the decline in business has led to the conclusion by many business owners that paying rent would now need to be reconsidered.

April 2020
Blockchain and Business Methods: How Business Method Patents May Be Redeemed by Furthering Blockchain Innovation

Business methods remain a controversial area of innovation for which the United States Patent and Trademark Office ("USPTO") grants patent protection. The USPTO frequently rejects business method patent applications for attempting to claim an "abstract idea," only granting patents after the initial patent claims have been narrowed to improve a specific physical technology. Some argue that granting patent rights for business methods cannot be justified because the costs to society outweigh the benefits, concluding that business methods should always be excluded from consideration for patent protection. If these arguments are persuasive and successful, it could lead to the patent office neglecting useful innovations near the intersection of computing technology and business methods to the detriment of the public good. To show that business method patents can be more beneficial than costly to society, the USPTO must demonstrate that it is granting business method patents with unquestionable utility.

CFPB Policy Statement Regarding Fair Credit Reporting Act

Scott Brown, corporate consumer finance partner, at Lewis Roca Rothgerber Christie LLP, spoke at a recent compliance conference on the Fair Credit Reporting Act ("FCRA"). The Consumer Financial Protection Bureau (“CFPB”) issued a Policy Statement on April 1st regarding the CARES Act amendments to the FCRA. This article contains the points that may be of interest as outlined in the Policy Statement.

Spring 2020
When Will I be Famous?: Protecting Well-Known Foreign Marks in the United States

A split among US circuit courts and an administrative court on the application of the well-known marks doctrine makes registration in the United States more important than ever. But famous marks will always attract greater protection.

Winter 2020
GAO Affirms Agency Best Value Determinations Should Consider Merits of Proposals Not Ratings

Recent bid protest decision from the Government Accountability Office affirm that when making best value determinations agencies should evaluate the actual merits of contract proposals rather than relying on ratings assigned to those proposals. These rulings ought to be considered by contractors not only when assessing a possible bid protest but also when preparing proposals. 

4 Sick-Leave Practices to Avoid During the Coronavirus Pandemic

Government officials are urging sick workers to stay home and employers to have flexible leave policies during the coronavirus pandemic. Don't let business pressures and reliance on past practices lead you to make bad decisions about attendance and leave policies during the public health emergency. Here are four mistakes employment law attorneys said businesses should avoid.

Enforcing Absent Class Member Discovery

When faced with a class action, propounding discovery on unnamed class members can be a powerful tool for defending against certification, moving to decertify and contesting classwide liability. This type of discovery is typically described as "absent class member discovery."

Follow These Steps to Address Coronavirus Concerns in Your Workplace

Employers should prioritize implementing plans to manage and address workplace concerns about the coronavirus. In doing so, employers must be mindful that their plans and actions are compliant with applicable employment laws. 

February 19, 2020
2019 Tax Year in Review

The following update provides an overview of Arizona tax developments that occurred in 2019, with a focus on this past year’s tax legislation and court cases. We hope that you will find this annual compilation useful and interesting.

Firm Taps Legal Talent From Within

Dustin Szakalski and Martin Regehr have been promoted to partner at Lewis Roca Rothgerber Christie, the Glendale firm said in a statement.

February 2020
Is Discrimination Based Upon Sexual Orientation And Gender Identity Protected By Title VII?

The U.S. Supreme Court is set to rule on a trio of cases that will (hopefully) settle the question as to whether the definition of “sex” under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) includes sexual orientation and gender identity. By its text, Title VII protects employees and job applicants against employment discrimination on the basis of “race, color, religion, sex, or national origin.” The definition of “sex” under Title VII has been the subject of much debate, with courts and the federal government coming out on opposite sides. Specifically, the Equal Employment Opportunity Commission (“EEOC”) and the United States Court of Appeals for the Second and Seventh Circuits have each determined that the term “sex” may be defined to include sexual orientation. The United States Court of Appeals for the Eleventh Circuit, however, has held that Title VII does not prohibit discrimination on the basis of sexual orientation – a position also currently held by the U.S. Department of Justice.

Protecting Influence

Since trademark rights prevail nationwide under the federal Lanham Act and the rights of publicity do not vest in all circumstances, influencers are well advised to file trademark applications for their services.

Anti-Ransomware Strategies Must Evolve With Threat

Law360 (January 17, 2020, 5:08 PM EST) –

Ransomware — malicious software that locks or alters computer data and demands a ransom payment to unlock or restore the data — is not a new phenomenon. Recently, though, ransomware attacks have become increasingly common and increasingly sophisticated, with hackers not only locking but also stealing the data.

For targets and victims of these attacks, this is a worrying trend with potentially costly implications, although options remain for dealing with such threats.

It's Time to Review Your Employee Handbook

A new year inevitably brings new workplace laws, whether at the federal, state or local level. So January is usually a good time for HR professionals to review their employee handbook and make changes.

20 Young Business Leaders to Watch in 2020

We have all read about — or talked about (mostly behind their backs) — the stereotypes that have been assigned to the younger members of today’s workforce (think age 40 and younger). Too many people view today’s young business leaders as a generation of cornhole-in-the-office-playing, craft-beer-drinking, selfie-stick wielding narcissists who are way too self-involved because they grew up in an era when everyone goes home with a trophy.

Think again.

Lewis Roca Client Cleans Up in $1.2 Million Settlement

Lewis Roca Rothgerber Christie attorneys announced Dec. 20 they had secured a $1.2-millon settlement from Aces Up Gaming, a Wheat Ridge-based distributor of casino games and products, on behalf of client Derek Webb in a lawsuit filed last year in a Colorado federal court.

2020 Will Be Bullish For Tribal Clean Energy Development

In addition to the election year excitement we can expect for 2020, Native American tribes should look forward to progress on tribal lands and in state policies, and in incremental federal support for tribal clean energy development efforts.

January 2020
'Dot-Com' Dispute to Lead Pack of U.S. Trademark Appeals in 2020

One of this year's top trademark cases may yield specifics about what generic means when the U.S. Supreme Court decides if a company can register a generic or descriptive word with added as a trademark.

State & Local Tax Cases to Watch in 2020

From high-stakes state tax petitions before the U.S. Supreme Court to state courts' examinations of taxing software and apportionment, 2020 is shaping up to be another year of citable cases in state taxation.

Gaming Co. Settles $151M Antitrust Suit Funding Dispute

A company that allegedly withheld more than its fair cut of a $151 million antitrust deal has agreed to pay more than $1.2 million to end a Colorado man’s claims that he wasn’t fully repaid for helping fund the underlying suit.

Fall 2019
Data Rights Under Government Contracts

Determination of data rights under contracts with the federal government is primarily governed by FAR Subpart 27.4. Although data rights regulations are rather complex, contractors who perform technical contracts must have at least a basic knowledge of how rights to data relating to their contracts are allocated between themselves and the government.

October 2019
Major Legislative Changes to Nevada's Energy Laws

The 2019 Legislative Session concluded with the passage of a series of new laws affecting Nevada’s electricity providers and their customers. The proponents of these new laws promise that they will move Nevada toward a clean energy and low carbon future, and will result in a stronger and more diversified economy.

September 2019
Blockchain Patentability 101

Under developing case law, innovative applications that improve blockchain activity on a technical level may be patent eligible.

September 2019
Extension of Play Constituting a Prize

What are prizes in association with gambling? Winning a car or cash jackpot on a slot machine may be some prizes that immediately come to mind. How about winning virtual currency in a social casino? Some may be puzzled at the thought that playing in social casinos could be considered illegal gambling activity. This is because although you may purchase the virtual currency, any virtual currency won cannot be cashed out. However, this question is becoming more relevant in states that define a prize to include the extension of play without charge.

September 2019
Tap Into Craft Beer Trademarks

It will come as no surprise that craft beer is here to stay. The Brewers Association, a craft beer trade organization, reports that the number of craft breweries has nearly doubled in five years from about 3,800 in 2014 to 7,300 in 2018 with a majority of Americans living within 10 miles of a brewery. The vast number of brewery names that have already been taken are creating trademark frustrations for brewers.

August 1, 2019
Protecting Your Clients' Trade Secrets and Proprietary Info Before and After Discovery

A broad overview of misappropriation of trade secrets and available remedies.

August 2019
Branding Pharmaceuticals: Drug Naming and Non-Traditional Trademarks

In addition to traditional marks, non-traditional marks offer a route to protection where a drug's appearance has acquired distinctiveness, but obtaining such restrictions is not all plain sailing.

Arizona Tax Alert: The State of Arizona Conforms to the Tax Cut and Jobs Act for Income Tax; Returns Windfall to Taxpayers Starting in 2019

On May 31, 2019, Governor Doug Ducey signed Arizona H.B. 2757, which updated Arizona’s income tax code to conform to the 2017 federal Tax Cuts and Jobs Act (TCJA). The bill, beginning in 2019, also reverses the effective state tax increase imposed on Arizona taxpayers as a result of the Legislature’s failure to take action in 2018 to return the TCJA windfall to taxpayers.

H.B. 2757 adopted conformity with the federal tax code but also cuts personal income tax rates, increases the standard deduction, and replaces the dependent exemptions with a new child tax credit for the 2019 tax year. On the corporate side, H.B. 2757 makes clear that Arizona will not follow the federal government in imposing a new tax on global intangible low-taxed income (GILTI), but does not address full expensing and the net interest limitation.

Foreign-Domiciled Trademark Applicants and Registrants Required to Retain Local Counsel for U.S. Trademark Matters

Beginning August 3, 2019, all foreign-domiciled trademark applicants and registrants will be required to retain licensed counsel in the United States to prosecute trademark applications, file post-registration maintenance documents, file submissions in Madrid applications, or respond to Trademark Trial and Appeal Board (“TTAB”) proceedings.

New USPTO Rules for Foreign Applicants

Foreign-Domiciled Trademark Applicants and Registrants Required to Retain Local Counsel for U.S. Trademark Matters

Arizona Adopts Wayfair Economic Nexus for E-Commerce Sales and Preempts the Retail Classification for City Sales Tax

On May 31, 2019, Governor Doug Ducey signed Arizona H.B. 2757 adopting economic nexus standards for internet sales made into Arizona. This change was in direct response to the US Supreme Court’s decision in South Dakota v. Wayfair, 138 S. Ct. 2080 (2018) and becomes effective October 1, 2019.

In addition to adopting economic nexus standards, H.B. 2757 requires marketplace facilitators (Amazon, et. al.) to collect the sales tax on behalf of sellers using the facilitator’s platform. It also preempts the retail classification for city sales taxes under the Model City Tax Code.

Summer 2019
Patent Rights Under Government Contracts

Patent rights to inventions made in the performance of work under a contract with the federal government are governed by Subpart 27.3 of the Federal Acquisition Regulation. This subpart attempts to strike a balance among the interests of the government, the contractor, and the American public in innovations funded by taxpayer dollars.

Compacts or Clout

Sports betting debate presents tribes with difficult decisions

American Indian political clout amassed over the last 30 years with development of a $32 billion tribal government gambling industry is proving effective in deliberations over legalized sports betting in the 29 states with Indian casinos.

In addition, the Indian Gaming Regulatory Act (IGRA) of 1988 and tribal-state casino regulatory agreements, or compacts, are proving effective tools in protecting the rights of 242 indigenous communities operating casinos for the purpose of generating government revenue.

Boyd Briefs - Alumni Spotlight: Darren J. Lemieux, '05

Darren Lemieux is featured in the alumni spotlight as part of the weekly UNLV-William S. Boyd School of Law, "Boyd Briefs" newsletter.

The Supreme Court Finds Ambiguous Agreements Do Not Support Class Arbitration

In a 5-4 decision on Wednesday, April 24, 2019, the U.S. Supreme Court ruled in Lamps Plus, Inc. et al. v. Varela that an ambiguous arbitration agreement cannot be a basis for concluding that the parties to the agreement have agreed to class arbitration. In order for a matter to be arbitrated as a class action, the arbitration agreement must explicitly allow for class arbitration.

April 2019
Non-Traditional Trademark Protection in the Digital Age

Trademarks traditionally are logos or words that identify the source of a brand, good, or service.  Trademark and trade dress protection , however, can also extend to sounds, scents, flavors, colors, textures, and the appearance of a product.

Arizona Legislators have Enacted Substantial Changes to Dwelling Actions

The Arizona Legislature has enacted substantial changes to “dwelling actions” – construction defect litigation that involves single- and multi-family homes.

April 2019

Fair use protection does not apply in the circumstance of marijuana-infused products because the trademarks are used as a "designation of source."

April 2019
Protecting Your Intellectual Property

Manufacturers seek patent protection on new products, marketing-related companies protect trademarks and trade names and the development of a community of creative professionals (including filmmakers) across the state increases demand for copyright-related legal services.

Spring 2019
Developing Data Privacy Law and the Standard for Reasonable Security Measures

Legislation regarding data privacy has exploded over the past few years. Gone are the days of data protection requirements only applying to the finance and health care sectors. Individuals and companies across all sectors face new and expanded requirements to protect and properly maintain personal identifying information. The FTC, exercising its enforcement powers under Section 5, is targeting businesses it believes are employing unreasonable security practices. To complicate matters even further, because Congress has failed to enact a uniform data protection statute, the individual states are taking up the charge to protect personal inform

April 2019
Tribal Utility Development

With over 19 million acres of reservation trust lands in the state of Arizona, and approximately 40 percent of the renewable energy resources in the sate, the 22 federally recognized Indian tribes are uniquely positioned to take advantage of their energy resources to promote more energy development - especially clean energy - and improved energy services to tribal communities.

DOL Opinion Letters Tackle Pay for Volunteer Programs and Residential Janitors

The U.S. Department of Labor (DOL) recently clarified its positions on compensating workers who participate in an employer's off-duty volunteer program and on paying minimum wage and overtime premiums to residential janitors.

Paradise Valley HOA Sends Message About Short-term Rentals: Not in Our Neighborhood

Mark Snyder had lived in Camelback Country Estates in Paradise Valley for three years when he began noticing changes in the neighborhood: trash stacked up on the curbs, red Solo cups on the front lawns, blaring music and 12-passenger vans parked on the street. The homes were being rented out on VRBO and Airbnb after a state law passed in 2016 expanded protections for short-term rentals. VRBO and Airbnb are just two popular vacation rental websites.

Superior Court rules Camelback Country CC&Rs Trump Short-Term Rental Provisions

The homeowners of Paradise Valley’s Camelback Country Estates have been granted a declaratory judgment on behalf of the Superior Court of Arizona, ruling short-term rentals within the neighborhood violate established Covenants, Conditions and Restrictions of the community.

Leadership is Key to Managing Significant Cyber Risk

Chief Executives in the US identify cybersecurity as their primary concern. A new global survey taken by The Conference Board reports that American CEOs fear the external risk of cybersecurity over recession, global trade and competitors. And yet, in an apparent disconnect, the same study showed that among internal risks, these same leaders listed “compliance with data privacy regulations” nearly last. For such an important external business risk, how is it that executives do not appear to take ownership of  the internal responsibilities tied to cyberattack risk? The calamitous risk that executives rightfully fear is the reason that they must take real action to implement cyber risk prevention today.

March 2019
Fiduciary Duties and Indemnification - Arizona's New Limited Liability Company Act

This article explains the provisions of the New Act (A.R.S. §§ 29-3101 to 29-4202) relating to fiduciary duties and rights of indemnification of limited liability companies. The New Act clarifies the duties owed by the managers and members of LLCs, expressly allows limited modifications by agreement, and expressly allows members to elect to apply the rules governing corporate director liability based on fiduciary duty (including the business judgment rule) to LLC managers in lieu of the New Act’s default rules on fiduciary duties. The New Act also provides default rules governing the right of a manager or member to be indemnified by the company against third-party claims. The LLC statute previously in effect (A.R.S. §§ 29-601 to 29-858) (the “Old Act”) was silent on both of these topics.

March 2019
Nevada Gaming Control Board Takes A Stand Against Sexual Harassment

In the last several years, there has been a surge in the number of sexual assault victims who have publicly disclosed their stories. Sexual harassment is prevalent across a broad range of industries, including Hollywood, media, hospitality, and healthcare. Many industries have been spurred to reexamine their own policies to prevent sexual harassment. The gaming industry is no different.

Changing Firms? Five Issues to Consider

There are a myriad of reasons why registered representatives and investment advisor representatives elect to change firms. These include product offerings, technology platforms, compensation, cultural fit, or particular practice goals. Most often, new business opportunities following a transition pay off, but failing to consider key issues in advance may result in a very bumpy transition, expensive litigation and E&O insurance coverage issues. Many departing representatives assume that there is an inherent right to take clients and their financial information if he or she established the client relationships or acted as the primary servicing representative. While the client relationship is fundamentally important, there are significant contractual and regulatory issues to consider. With advance planning and by consulting with qualified legal counsel many pitfalls can be avoided or at least mitigated.

Spring 2019
Act Imposes Cybersecurity Disclosure Obligations on Providers of Information Technology

On August 13, 2018, President Trump signed into law the 2019 National Defense Authorization Act. This massive (788 pages) piece of legislation establishes or renews the various programs of the Department of Defense and authorizes funding for the Department. Many provisions in the Act reflect an increased emphasis by the DOD on cybersecurity as the military strives to protect its supply chain. Among the many cybersecurity provisions are new disclosure obligations imposed on providers of information technology. For the purpose of the Act, “information technology” has the meaning given this term in 40 USC Section 11101.

Tribes Oppose Sports Betting Bill

Arizona’s Native American tribes overwhelmingly oppose a legislative effort to legalize sports betting in Arizona.

Republicans on the Senate Appropriations Committee voted to advance a bill to bring sports gambling to bars and private clubs over the objections of representatives from tribal governments across the state, who argued that sports betting should be discussed in negotiations with the governor’s office.

Betting On Your Favorite Teams Still on Hold in Arizona Legislature

PHOENIX – Ten months after the U.S. Supreme Court cleared a path for states to allow gambling on sporting events, a movement is underway to allow Arizonans to wager on their favorite teams.

SB 1158, introduced Jan. 23 by Sen. Sonny Borrelli R-Lake Havasu City, would allow sports gambling in the state by giving Native American tribes exclusive rights.

Arizona Lawmakers Are Debating Legal Sports Betting

The U.S. Supreme Court in 2018 struck down a law that generally banned sports betting. Since then, states including New Jersey, New Mexico and Pennsylvania have legalized it.

Many others have introduced bills to legalize sports betting, including Arizona. Senate Bill 1158 would allow Arizona tribes to operate sports betting and sets out other guidelines for how that’d work. The measure was scheduled to be heard in a Senate committee Thursday morning.

To talk about what that could mean for Arizona, The Show reached out to Steve Hart, an attorney with the firm Lewis & Roca who practices Indian law and gaming law, among other things, as well as economist Jim Rounds, president of Rounds Consulting.

February 2019
Q&A with Joel Henriod, Las Vegas Office Managing Partner Lewis Roca Rothgerber Christie

The Smith Center's Insider Interview with Joel Henriod.

Arizona Lawmaker Pushes to Legalize Sports Betting

A Republican lawmaker has a proposal to legalize sports betting in Arizona through legislation he says will avoid nullifying state gaming compacts with Native American tribes.

Sen. Sonny Borrelli, R-Lake Havasu City, wants to bring sports gambling to bars and private clubs throughout Arizona, but he wants the state’s tribes to have exclusive rights in operating sports betting.

Native Groups Say Lender Ruling Cramps Tribal Businesses

Law360 (January 25, 2019, 9:27 PM EST) -- Three national Native American groups urged the Fourth Circuit on Thursday to overturn a Virginia district court’s refusal to toss a proposed class action against two lending companies, saying the ruling that they weren’t entitled to share in a Michigan tribe’s immunity to suit intrudes on tribal sovereignty and hamstrings tribal economic development.

Local Opinion: The Real Poblem with Tucson's Election System

Tucson city elections are unfair in two ways: One —they focus on irrelevant political party affiliations and, thus, obscure important local issues and make them harder to solve. Two —they subvert democracy by allowing residents in one part of the city to choose City Council members for residents in another part of the city.

This Message Will Self-Destruct. Or Will It?

2018 was the year of data privacy.  In April, Facebook CEO Mark Zuckerberg was called to testify before Congress to answer difficult questions about Facebook’s protections for its user data.  In May, the European Union’s General Data Protection Regulation made it known to the world that the privacy of its citizens was to be taken seriously and imposed severe consequences for those who failed to comply.  Across the United States, states like California and Colorado enacted sweeping data protection laws.  The message is clear: consumers want their privacy and governments are taking steps to protect them.

Who Would Sue An NPO? - Understanding Where Risks May Lurk

When operating a nonprofit, most board members and executive directors believe the organization is less likely to be sued because of the “good” work it does. But nonprofits, just like any other business, have risks of liability in running their operations.

This discussion Laura had with Julia Patrick of the American Nonprofit Academy explores various risks nonprofits face, potential liabilities that may arise, and tools to manage them.

Supreme Court Update: Arbitrator Gets To Decide When A Dispute Must Be Arbitrated if the Arbitration Clause Specifically Assigns That Task to the Arbitrator

U.S. Supreme Court decides that when the parties agree to arbitrate disputes between them and assign the power to an arbitrator to determine if a particular dispute is one that must be arbitrated, the arbitrator must make that decision.

January 2019
Sitting Pretty in Probate - What Sandstead Means for Probate Jurisdiction

A look at the subject matter jurisdiction in probate court. This article focuses on the impact the Colorado Supreme Court's recent decision in Sandstead-Corona v. Sandstead.

Winter 2019
Negotiating CRADAs

Cooperative Research and Development Agreements (CRADAs) are arrangements between a federal agency, in the form of a government-owned laboratory (either government or contractor-operated) and another party, often referred to as a “collaborator.” CRADAs facilitate the transfer of technology from the federal government to the private sector by making available government facilities, intellectual property, and expertise in collaboration with industry and other types of entities. These agreements are intended to lead to the development of commercial products. The chief benefit of a CRADA to a collaborator is that it may obtain rights to the intellectual property that is produced by the joint research and development effort. In return, the federal laboratory receives resources that advance its research and development mission. To successfully negotiate a CRADA, prospective collaborators must understand what a CRADA is, how it is structured, and the issues that need to be resolved before the agreement can be executed.

January 2019
Create Better Service Models, Address Associate Attrition, Communicate with Clients & Enhance Mentoring

As we start the last year of the 21st Century “Teens,” many of us are embarking on the New Year’s resolutions we crafted at the end of last month. Unfortunately, in reality, some (many?) of us may have already disembarked on those pledges, especially the casual vows made on New Year’s Eve as the bubbly flowed and the night pushed past midnight. Some resolutions we stick to for a few weeks before we fall off the wagon and, for instance, stop going to the gym. (Year-round gym goers love February as by then many of the ambitious “resolvers” have given up.)

December 2018
Weeding Out Trademark Infringers

For years the marijuana industry was an underground business, posing little threat to trademarks. But the recent ‘green explosion’ means that trademark owners must enforce their rights or risk their reputations.

Becker v. The Bar Plan Mutual Insurance Company

Claim Notification and Reservation of Rights: The Sooner The Better Essential Guidance for Both Sides of an Insurance Contract.

The Kansas Supreme Court’s recent ruling in Becker v. The Bar Plan Mutual Insurance Company1 revived an investor’s shot at recovering a $3.9 million judgment for legal malpractice against his former attorney’s insurer. Although the bottom line of this decision may easily grab the attention of an insurer (not to mention an attorney), the case offers essential guidance to both sides of the insurance contract.

The Verdicts That Left A Mark In 2018

Law360 (December 17, 2018, 5:51 PM EST) -- Trial watchers saw plenty of drama in 2018, from the latest mega-million matchup between Apple and its longtime patent nemesis in Texas to a nationwide series of back-and-forths between Johnson & Johnson and plaintiffs alleging its baby powder causes cancer, which ultimately led to billions of dollars in damages against the pharmaceutical giant.


Marriott Hack Shows Risks Of Lax Cyber Diligence In Mergers

Law360 (December 3, 2018, 10:02 PM EST) -- When hotel giant Marriott International Inc. merged with rival Starwood Hotels in 2016, it also unwittingly bought a reservation database where the company said Friday intruders were lurking undetected, illustrating the risks of missing cybersecurity gaps during due diligence.

The Colorado 200: 2018

Law Week Colorado’s annual Colorado 200 lists the largest firms in Colorado according to headcount. We collect information on Colorado’s law firms through a self-reported survey, and when we don’t have that survey information available, we count attorneys ourselves.

Fall 2018
Building Better Mousetraps by Adding Value to Technical Proposals

“Build a better mousetrap and the world will beat a path to your door” is the old saying, but the federal government seldom beats a path to the door of a contractor. Nevertheless, companies can win contracts by adding value to their proposals with technical discriminators.

You Broke It, You Bought It

A promised crackdown on illegal games in California card rooms and a state-mandated audit of spending by the Gambling Control Commission (GCC) and Bureau of Gambling Control (BGC) foreshadow long-awaited scrutiny of the state’s politicized regulatory system.

Hearing for controversial Vintage project delayed

Vintage at Kings Canyon, the controversial westside development approved in 2016 but stalled since, is delayed again.

The planned unit development was scheduled to go before the Planning Commission on Nov. 28, but the action on the agenda item is to continue the request to a date uncertain.

Tribes Urge Developer Focus on Economic Diversity, Sustainability

Connecting investors to tribal communities may help bolster economic sustainability and build capacity on reservations.

Sports Betting In New Mexico Heats Up, Despite Lack of New Legislation

Everywhere you look, there is another state looking at new legislation designed to facilitate sports betting, but in one state, both a tribal casino and the state lottery have started taking bets, or announced plans to, without a single legislative change.

The New Mexico Lottery Authority approved a new sports game last week that would effectively be a parlay card, requiring players to correctly guess three or more results correctly.

Milestone Election For California Tribal Gaming Celebrates 20th Anniversary

On Saturday, it will be 20 years since California voters went to the polls and passed Proposition 5, a genuinely historic ballot measure which gave gaming tribes a decisive victory over Nevada's casinos and ensured the future of the $32.4bn juggernaut known as Indian gaming.

Transportation Ballot Measures to Watch in the Midterms

Law360 (November 2, 2018, 5:51 PM EDT) -- U.S. voters will consider more than 200 state and local transportation-related ballot initiatives on Tuesday, including gas tax increases, bond issuances and so-called lockbox measures ensuring that transportation and infrastructure funds are used exclusively for their intended purpose.


Tribal Compacts a Challenge for New Mexico Sports Betting

A guest grabs pick sheets during the launch of full-scale sports betting at Dover Downs Hotel and Casino in Dover, Delaware. Legalizing sports betting across New Mexico would come with a $74 million hit to state revenue if tribal gaming compacts aren’t renegotiated. That loss—stemming from a provision that gives tribes exclusive gaming rights—far outweighs tax revenue estimates if the state widely legalizes sports betting, according to new projections presented to state legislators. At risk is shared gaming revenue the state gets from tribes under those compacts.

November 2018
Can They Do That? Commonly Misused Phrases in Pleadings and Discovery

One commonly used phrase in answers and discovery responses is that a document "speaks for itself." Many defense lawyers use this phrase to avoid conceding issues related to the interpretation of a writing, such as a contract. This tactic has drawn criticism from courts, and beginning in July 2018 the Arizona Rules of Civil Procedure prohibit using this phrase in an answer.

Legally speaking: Looking ahead to the 2019 Nevada Legislature

Uncertainty over who will replace Brian Sandoval to become the 30th Governor of Nevada - and a crucial showdown over the controversial energy ballot measure Question 3 - will have a large impact on the 80th Session of the Nevada Legislature.

Nevada Sports Books Prepare for Out-of-State Betting

Nevada sports books could accept bets from out-of-state customers once a federal ban is lifted, if regulators position the state now to cash in.

States Push Back on Local Paid-Sick-Leave Laws

As more city governments across the country consider enacting laws requiring employers to give workers varying amounts of paid-sick-leave time, some state lawmakers have blocked local jurisdictions from doing so.

What Litigants in Arizona Need to Know About the New JRAD Rules

Effective January 1, 2018, the Supreme Court of Arizona adopted changes to the Judicial Review of Administration  Decisions Rules (the “JRAD Rules”). The changes approved by the Court simplify the rules and are intended to enable all litigants to better understand the process and promote the expeditious resolution of proceedings on the merits. The revised JRAD Rules and accompanying forms stem from the Court’s initiative to promote access to justice. At the same time, the revised rules allow parties—regardless of their familiarity with the administrative and administrative appeals process—to engage on the merits and seek a substantive resolution of the proceedings.

Beyond Wayfair: Implications For State and Foreign Taxes

by: Paul Jones and Jad Chamseddine

Tax Analysts

As the post-Wayfair landscape firms up, it's clear the case could have applications beyond remote sellers, reaching into states' authority to pursue business taxes using economic nexus, the adoption of factor presence nexus standards, and even the tax policies of European countries.

Running With The Bulls

Running with the bulls in Pamplona, Spain is an experience like no other. Lore is that you know when to run when you see the fear on the runners’ faces who started earlier in the course. Adam Massaro, an intellectual property litigator at Lewis Roca Rothgerber Christie LLP, could not pass up experiencing this self-imposed chaos.

Requesting and Providing References - How to Exchange Information Respectfully and Professionally

If you ask three HR professionals about how to give and request references, you are likely to get five opinions. This is an area fraught with conflicting information and a fear of legal risk. However, schools need references to determine whether an applicant might be a good fit for the job they have open. Information about past performance is critical to this decision.

October 2018
Appellate Courts Increasingly Affirm Trial Court Decisions to Dismiss Lawsuits

A current trend in the federal and Nevada appellate courts brings to mind the 1988 fight between Michael Spinks and the reigning heavyweight champion, Mike Tyson. Both were undefeated. It was then the richest fight in history, grossing $70 million, funded largely by pay-per-view fees from over 600,000 households. But the spectacle ended quickly. Tyson knocked out Spinks halfway into the first round, in just 91 seconds. (A fight that “goes the distance” to a decision lasts 36 minutes over 12 rounds.) During his career, Tyson won eight fights in less than a minute.

Changes to California Law Impact Collection of Consumer Debt

A recent change to California law significantly limits the ability of debt collectors to collect a time-barred consumer debt. Effective January 1, 2019, amendments to the Rosenthal Fair Debt Collection Practices Act will require debt collectors to notify debtors if they are attempting to collect a time-barred consumer debt. The changes also prohibit debt collectors from initiating legal proceedings to collect the debt under most circumstances.


Getting Ahead of Cybersecurity Issues

Lewis Roca Rothgerber Christie forms strategic alliance in cybersecurity space.

September 2018
Ten Common Proposal Defects: What Bid Protests Can Teach Us About Writing Better Contract Proposals

Proposals to perform federal contracts may fail to result in awards for many reasons.  Frequently, this failure is because the prospective contractor simply cannot com­pete on technical considerations, price, or past performance. However, on other occasions, a contract award is lost because of defects in the offeror’s proposal.

October 2018
Regulation of Discharges to Groundwater Under the CWA

The U.S. Environmental Protection Agency (EPA) and a growing number of federal courts are confronting the issue of whether and when discharges to groundwater are regulated under the Clean Water Act (CWA), 33 U.S.C. 1251-1388. Specifically, EPA has recently requested comments on the scope of its jurisdiction in this area, and a recent decision in the U.S. Court of Appeals for the Fourth Circuit found that discharges to groundwater can be regulated under some circumstances.

Messaging Apps: Don't Let the Disappearing Act Catch You by Surprise in Discovery

Slack. Jabber. Google Hangouts. Wickr. Confide. Messaging apps are no longer the future of eDiscovery, they are the present. Although these chat-style software programs and mobile messaging apps provide conven­ience for day-to-day business, they can pres­ent significant challenges in litigation. A party who is in litigation, or who reasonably anticipates being in litigation, is obligated to preserve relevant electronic evidence. But what does that mean for a business that utilizes an enterprise-wide chat function or other forms of messaging? Are employees permitted to use “disappearing” ephemeral messaging apps to communicate after a liti­gation hold is in place? Can they only use systems that can be configured to prevent a message from being completely deleted? By and large, these questions remain unan­swered, but understanding the rules frame­work will lead us toward some of these answers—and is the first step to preventing the data disappearing act from catching you by surprise.

Proposition 207 Removed From Ballot

On August 29, 2018, Chief Justice Scott Bales signed an order stating that a majority of the justices ruled that Proposition 207’s description of the campaign’s proposed tax hike on those making $250,000 or more, did not include language describing how the law would affect the tax brackets at every income level. The Justices determined that the drafting and the substance of the description made “the description . . . inadequate.” As a result, the Arizona Supreme Court removed Proposition 207 from the ballot because petitions did not state that the measure would eliminate indexing tax brackets to changes in the Consumer Price Index.

VF Corp Taking Its Talents to Denver

Attorneys discuss key considerations for companies pulling off relocation.

Sports Betting in Arizona Requires Tribal Compact Rework

Arizona leaders have to consider a potential “poison pill” in their gaming compacts with Indian tribes when weighing the legalization of sports betting, according to a Phoenix-based attorney. Passing a law to let the state or businesses offer gambling on games would reduce how much revenue tribes owe Arizona from their casinos across the state, said Stephen Hart, a partner with Lewis Roca Rothgerber Christie LLP who practices Indian and gaming law.

Arizona Voters to Decide on School Voucher Expansion in November 2018

In 2011, Arizona became the first state to create an Empowerment Scholarship Accounts (ESA) program, allowing parents or guardians of students with disabilities to use state funds, in the form of an ESA, for private school education. The law, which established the ESA, provided funding for private school and is measured at 90 percent of what the state would have paid for the student to attend a public school district or charter school. The law allows parents or guardians to use a prepaid bank card to pay for education-related tuition, fees, textbooks, tutoring, educational therapies, and curriculum. Since its inception, the ESA program has been expanded to cover students meeting other specified criteria, including children who attend failing schools and children who live on an Indian reservation.

When Employees Leave: Conduct Comprehensive Exit Interviews

Labor & Employment attorney, Melanie Pate, is quoted in a SHRM Online article addressing the importance of exit interviews when an employee leaves a company.

Colorado Makes Sweeping Changes to Protect Consumer Data Privacy

On May 29, 2018, Colorado governor John Hickenlooper signed into law House Bill 18-1128, which significantly expands existing privacy and data breach notification laws. Under the newly enacted legislation, covered entities that maintain paper or electronic documents with personal identifying information are to implement and maintain reasonable security procedures and practices. These entities will be required to investigate suspected security breaches and, when a security breach occurs, numerous notification requirements are triggered. The act takes effect on September 1, 2018.

Summer 2018
Determining Contractor Responsibility

Awards of almost all federal contracts are based on the agency’s evaluation of price, technical approach, and contractor responsibility. While each factor is vitally important, no contract will be awarded to a contractor found nonresponsible. Responsibility encompasses a broad range of standards. Prospective contractors need to understand these standards and how they are applied.

New Generation of Laws Take Effect

Arizona history is alive, and its echoes can be seen in our Constitution’s direction that legislation signed into law by the Governor does not become effective until 90 days after the end of the Regular Legislative Session. 

Blockchain: What is it and can I protect it via patents?

What is Blockchain?
Blockchain technology, some might argue, is the most important technological innovation since the Internet. Those impacted by this technology are not only companies, but also everyday people. Thus, everyone should try to have a basic understanding of what blockchain is, and how one might benefit from it.

Fostering a Collaborative Relationship With Your Client's HR Leadership

The more you know about your client's HR culture and departmental goals, and the more effort you make to create a comfortable, mutual working style, the more you become their trusted resource for legal questions.

Employee no-poaching agreements face legal pressure

Employee no poaching agreements – is this legal? Litigation attorney, Bruce Samuels authored an article featured in AZBigMedia addressing the ramifications of such agreements in response to recent news surrounding the fast food industry.

Nonprofit Organizations: Regular Tasks That Matter

Ensuring compliance on a regular basis can be a daunting task for many nonprofit organizations. This undertaking can be simplified to some degree by leaders reviewing certain organizational and governance aspects that could expose weaknesses and prompt action towards compliance.

July 2018
Not a Sure Thing

Robert Martin, chairman of the Morongo Band of Mission Indians, views the looming political war over sports betting in California with a sense of dread, largely because it comes on the heels of a failed, decade-long battle to get online poker legalized in the Golden State.

Arizona Legislature Enacts Helpful Changes to Contractor Licensing Laws

Each applicant for a license with the Registrar of Contractors (ROC) must provide identifying information to the ROC relevant to the agency’s exercise of discretion to grant the license. Under measures enacted during the 2018 session of the Arizona Legislature, the nature and scope of information has been revised, clarified and in part has eased the process for a license to be obtained. Legislation introduced by Sen. Karen Fann (SB1375) and Rep. Toma (HB2550), which Governor Ducey recently signed into law makes changes to the laws that should be welcomed by contractors.   

June 2018
Unbounded Interests: The Limits of Blanket Easements

Blanket easements affect the use of burdened land and the rights of both landowners and easement holders. This article examines the various trends that have begun to emerge as states decide whether to invalidate, uphold, or limit the scope of blanket easements. It then discusses the implications of each trend, with an eye to the interests of utilities and infrastructure developers.

Wire Transfer Scams: What Happened to the Closing Proceeds?!

Closing day for a home purchase, a real estate transaction or the purchase of a business is always an exciting day. Unfortunately, internet thieves are targeting financial institutions, professionals and individuals participating in financial transactions seeking to steal wire transfers used to fund the deals. According to the FBI, between October 2013 and May 2016, thieves diverted or attempted to divert wire transactions valued in excess of $3 Billion.

Arizona to Study Indemnity Provisions in Construction Contracts

On May 16, 2018, Governor Doug Ducey signed Senate Bill 1271, which created a “construction liability apportionment study committee” (the “Committee”) to “research and make recommendations for the apportionment of liability in the construction industry.”

The Most Important Employment Law Decision This Term

On Monday, May 21, 2018, the U.S. Supreme Court issued a highly anticipated decision regarding the validity of class and collective action waivers in employment arbitration agreements.  The high court in the consolidated appeal of Epic Systems Corporation v. Lewis held that such waivers are lawful and do not violate the National Labor Relations Act (NLRA) – rejecting  the position of the National Labor Relations Board (NLRB) and employee groups that class action waivers in arbitration agreements between employees and employers violate federal law.


Early Monday morning, the United States Supreme Court ended a nearly six-year long legal battle regarding the constitutionality of the Professional and Amateur Sports Protection Act (“PASPA”). In doing so, the Court held that PASPA violated the 10th Amendment’s “anti-commandeering” principle, which provides that if the Constitution does not give power to the federal government or take power away from the states, that power is reserved for the states or the people themselves.

Stephen Hart Featured on KJZZ Discussing U.S. Supreme Court's Decision on Sports Betting

Stephen Hart Featured on KJZZ Discussing U.S. Supreme Court's Decision on Sports Betting

Big Fish Casino Caught Up in Net of Legal Decisions

Big Fish Casino is one of many social gaming applications that provide “freemium” online casino games. Similar to many other providers, users are awarded free chips when they create their account and may obtain additional chips by winning games, via free chip replenishment, or by purchasing additional chips. Big Fish Games was owned by Churchill Downs Incorporated, and subsequently sold to Aristocrat Leisure Limited earlier this year.

Cost-Effective Class Action Defense

Class action spending continues to rise. Clients are projected to spend $2.39 billion in legal fees in class action cases in 2018. So, if your company is named as a defen­dant in a class action, how can you and your outside counsel defend the case efficiently and effectively? This article will identify legal strategies and practical tips for how class action defendants can control legal fees and costs while zealously defending class action litigation.

Move Over, Human

Artificial Intelligence (“AI”) is impacting nearly every industry as both public and private companies embrace AI to increase their efficiency and competitive advantage.

August 2018
What Offerors Ought to Know About FAR Part 15

Offerors proposing to perform negotiated federal contracts need to understand FAR Part 15. Part 15, entitled “Contracting by Negotiation,” prescribes policies and procedures governing negotiated acquisitions by the federal government. Non-negotiated contracts are awarded by federal agencies using the sealed bidding procedures described in FAR Part 14.

From Ad Hoc Tools to Procedural Rules

The Uniform Commercial Real Estate Receivership Act (UCRERA) gives Nevada courts clear and limited guidance on the appointment and powers of commercial real estate receivers.

Of Paul Blart, Arbitration Agreements and Bankruptcy Discharges

For several years I have been following five interesting New York lawsuits in bankruptcy court alleging a violation of the discharge injunction based on how the discharge was (or was not) reported to credit bureaus.

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.

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.

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).

Winter 2018
What Bid Protests Can Teach Us About Preparing Better Contract Proposals

Proposals to perform federal contracts fail to result in awards for many reasons. Frequently, the prospective contractor simply cannot compete on technical considerations, price, or past performance. On other occasions, however, a contract is lost because of defects in the offeror’s proposal. Bid protests before the Court of Federal Claims and the Government Accountability Office frequently turn on deficiencies in contract proposals. In hindsight, many of these defects could have been avoided if identified in advance. Consequently, protest decisions offer useful lessons as to why some proposals are rejected and how they could have been improved.

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. 

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.

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.

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.

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:

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 Non-creditors of Family-Owned Businesses

These issues are not easy to resolve and involve lots of negotiation, interviews, forced mediation, discovery, expert testimony 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.

The Ninth Circuit Considers a District Court's Sua Sponte Dismissal of an Interpleader Action

The Ninth Circuit considers a district court’s sua sponte dismissal of an interpleader action on the grounds that the parties failed to make a good-faith effort to comply with their stipulation to resolve the case and the interpleading plaintiff filed the interpleader prematurely.

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. 

Spring 2017
Trump Administration Bolsters Buy American and Hire American Policies

On April 18, 2017, President Donald J. Trump issued Executive Order 13788 entitled “Buy American and Hire American.” The new Executive Order launches a Trump Administration initiative aimed at vigorously enforcing our existing Buy American/Hire American programs and gathering information to support the strengthening of these policies in the future.

"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.

Encryption Export Requirements Simplified

Export of devices with encryption technology requires careful consideration to ensure compliance with often difficult and confusing federal regulations. Recent changes attempt to simplify and clarify several areas relating to systems, hardware and software.

Fall 2016
Common Contract Claim Scenarios

Contractors who sustain an unexpected financial injury performing a contract with the federal government, either in the form of greater costs or lost profits, will need to consider whether the circumstances give rise to a claim against the contracting officer pursuant to the Contract Disputes Act. Contract claims can take many forms, but nevertheless certain common claim scenarios are well-established. These scenarios include negligent estimates, increased cost of performance, differing site conditions, terminations for convenience and breach of the duty of good faith and fair dealing. To assert a claim arising from one of these situations, a contractor needs to be cognizant of recent case law defining the requirements of such claims.

February 2016
Common Environmental Due Diligence Mistakes to Avoid

Under federal and many state laws, the owner or operator of a property can be liable for historical contamination at that property. That liability is strict – the property owner/operator need not have caused the contamination to be liable for an expensive cleanup. When acquiring property, or a business that owns/leases real property, the single best way to avoid environmental liability is to understand the environmental risk before buying the property or business. Knowing what you’re buying allows you to manage, or avoid, the risk.

November 2015
City of Denver to Take Up Construction Defect Litigation Reform

Frustrated by the unsuccessful statewide efforts to pass construction defect litigation reform (this year’s statewide bill died in the House State, Veterans and Military Affairs Committee), several Colorado local governments have taken matters into their own hands with ordinances and proposals for similar efforts at the local level. Seeing little movement on a state-wide change, the city councils of Aurora, Arvada, Commerce City, Littleton and Lone Tree all passed ordinances this year; Lakewood and Parker passed ordinances in 2014, and Denver is currently considering a new ordinance in the same vein.

Winter 2015
The (Limited) Right of a Subcontractor to Recover Payment from the Government

Last year, the U.S. Court of Federal Claims issued a decision clarifying the limited right of an unpaid subcontractor to recover payment under the prime contract from the federal government.  G4S Technology LLC v. United States, 114 Fed. CI. 662 (2014) is a case in which a subcontractor under a government contract filed suit against the federal government seeking payment as a third-party beneficiary of the contract. 

Fall 2014
Subcontractor Appeals Under CDA Must be Sponsored Regardless of Terms of Subcontract

In an opinion handed down this summer, the Armed Services Board of Contract of Appeals held that subcontractor appeals under the Contract Disputes Act must be sponsored by the prime contractor regardless of the terms of the subcontract. In Appeal of Binghamton Simulator Company, ASBCA No. 59117, 14-1 BCA 35715 (August 21, 2014), subcontractor Binghamton Simulator Company (BSC) attempted to appeal directly from a contracting officer's decision issued to the prime contractor Leidos, Inc. (formerly known as SAIC). Leidos did not sponsor the BSC appeal, and therefore the Board dismissed the appeal for lack of jurisdiction. 

.CHURCH Launching September 17

The number of premium domain names available to churches and related religious organizations is about to increase significantly.

Summer 2014
The Federal Government's Implied Duty of Good Faith and Fair Dealing to Contractors

Earlier this year, U.S. Court of Appeals for the Federal Circuit clarified previously misinterpreted case authority and reaffirmed that the federal government owes the same implied duty of good faith and fair dealing to its contractors as do private parties. In Metcalf Construction Company, Inc. v. United States, 742 F3d. 984 (Fed.Cir. 2014), a construction contractor brought a lawsuit against the federal government alleging that the Navy breached its duty of good faith and fair dealing under a contract to design and build military housing. In 2002, the Navy awarded Metcalf a contract to design and build housing units at Marine Corps Base Hawaii. Due to undisclosed site conditions, Metcalf had to deal with unusual expansive properties and chemical contamination in the soil. These conditions required Metcalf to excavate the unsuitable soil and replace it with fill dirt.

Spring 2014
DOD Adopts New Regulations for Safeguarding Unclassified Information

The Department of Defense, after lengthy study, has issued new regulations aimed at protecting unclassified technical information in the possession of contractors from cyber thefts. Cyber espionage by foreign governments aimed at defense information found in contractor IT systems is an increasing threat. The vulnerabilities of contractor systems, which are presumably less secure than DOD computers, are a growing concern of the United States.

Church v. State: The Historic Lawsuits Over the HHS Abortifacient/Contraceptive Mandate

On May 21, 2012, there began a confrontation between church and state unlike any in American history. Forty-three Catholic institutions filed twelve lawsuits in twelve federal courts seeking religious exemption from an HHS regulation.

Celebrities Protected by 'Right of Publicity'

While snapping photos of Hollywood celebrities may seem harmless, what you do with those photos may not be.

Summer 2012
Recovery of Unabsorbed Home Office Overhead

Last year, the U.S. Court of Federal Claims issued an opinion discussing recovery of unabsorbed home office overhead in The Redland Company, Inc. v. United States, 97 Fed. Cl. 736 (2011). This decision is worth noting because it serves as a mini-treatise on unabsorbed home office overhead, i.e. what it is, when contractors may be entitled to recover such costs and how they must go about proving these damages.

Spring 2012
Applying the Statute of Limitations to Claims Under the Contract Disputes Act

In April 2012, the U.S. Court of Federal Claims handed down a decision concluding that a claim by the government against a contractor was brought too late. On its way to reaching this result, Raytheon Company v. United States offers a full discussion of how the statute of limitations under the Contract Disputes Act is applied and possible defenses to the statute of limitations. 2012 WL 1072294 (Fed. Cl.)

The Computer Fraud and Abuse Act: ‘Authorization' in Flux and the Ninth Circuit Dilemma

The Ninth Circuit court is considering whether to affirm a definition of authorization that will allow employers a remedy against Insiders who exceed their authorized access, or whether to define to term narrowly.

An Insurer's Duty of Good Faith in the Context of Litigation

A growing number of cases address the issue of post-filing conduct. Interestingly, nearly all the decisions appear to conclude that the duty of good faith and fair dealing that an insurance company owes does not end with the commencement of litigation and thus continues through trial.

Winter 2012
Coping with Government Budget Cuts, Part II

The first part of this article, appearing in the Fall 2011 issue of the PACA Pulse, noted that reductions in discretionary spending by the federal government are on the way and that these cuts are expected to hit the Department of Defense the hardest. Contractors need to be ready for reductions in spending. While many of these reductions will result simply in fewer contracts being awarded, existing contracts may also be affected.

Medical Marijuana – Risks for Lenders and Landlords

No matter what your personal views on the issues of medical marijuana (MMJ), it is clear that the growing and dispensing of MMJ has impacted the real estate market in Denver and the Front Range.

Winter 2011
Gaming Policy Models, Part 1: Preparing for the Casino

Gaming varies widely from state to state and from country to country. As a consequence, regulatory systems can be very similar or significantly different.

Internet Gaming: Boundless Potential in a Bounded Statutory Framework

The Internet has become the most efficient medium operators use in order to disseminate online gaming, sweepstakes and contests to participants worldwide. With this unbridled growth, however, have arisen opposing moral viewpoints, conflicting statutory interpretations and challenges as to the legality of these online activities in the U.S.

Winter 2009
New FAR Ethics Compliance Program and Disclosure Requirements

Increased oversight of Government contractors is here. As a result, contractors doing business with the federal government and their subcontractors are burdened with new compliance obligations. Following the passage last year of the Close the Contractor Fraud Loophole Act, the Civilian Agency Acquisition Council and Defense Acquisition Regulations Council jointly issued a final rule amending the FAR effective December 12, 2008. This new rule, entitled Contractor Business Ethics Compliance Program and Disclosure Requirements.

Risky Business

A gaming company’s regulatory compliance program is a key component of how the company manages risk attendant to criminal and regulatory violations by its officers, directors and employees.

The Fundamentals of Compliance

Casino compliance plans are as unique as the casino companies they protect. These plans are designed to identify and evaluate risks arising in the course of business that may negatively affect objectives in order to ensure sound and appropriate gaming control.

Gaming Compliance

What is a casino license worth? To a gaming company, the answer is simple: everything. Without a gaming license, the company’s ability to earn revenues is exhausted. Regulatory compliance programs are simply an insurance policy for the company’s future.

Fall 2007
Documenting Teaming Arrangements

There are a series of documents that together can constitute a teaming arrangement.

June 2007
The Scope of Bankruptcy Ancillary Jurisdiction After Katz as Informed by Pre-Katz Ancillary Jurisdiction Cases

The United States Supreme Court correctly recognized in the 2004 Hood and 2006 Katz cases that the fundamental nature of bankruptcy cases and proceedings is distinct from litigation of statutes enacted under the Commerce Clause or other sections of Article I of the Constitution, in a way that is critical to sovereign immunity analysis.

Patents vs. Trade Secrets – Giving Your Business the Competitive Edge

When your business develops or acquires information that is not known to your competitors, you may have more than one option for protecting it.

August 2005
Preserving Contractor Rights Under Changes Clauses

Contracts are predictions. Intended to govern the future relationship between parties, the reality is that contracts run into unanticipated conditions and events, necessitating changes. The more complicated the purpose of the contract, the more likely it is the parties will have to deal with the unexpected.

Resources for Non-US Trademark Applicants

Lewis Roca Rothgerber Christie attorneys have significant trademark experience representing Applicants from around the world. We represent some of the most recognizable brands in the world and are nationally recognized.