Snell & Wilmer

The SEC’s Annual Report on the Dodd-Frank Whistleblower Program Shows Increased Activity

On November 15, 2016, the Securities and Exchange Commission (SEC) released its Annual Report on the Dodd-Frank Whistleblower Program. The Whistleblower Program was established by Section 21F of the Dodd-Frank Act, which…more

Annual Reports, Anti-Retaliation Provisions, Dodd-Frank, Enforcement Actions, SEC

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In the Global War for Data Privacy, Germany, France and Norway Launch First Strikes under ‘The Shield’

In the comic book world, one is often either a DC person or a Marvel person. In the data privacy world, one could say the European Court of Justice ruling last fall inspired the switch from DC’s Aquaman’s (Safe) Harbor to…more

Data Privacy, Data Protection Authority, EU-US Privacy Shield, Facebook, France

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Proposed Aetna-Humana Merger Passes Another Hurdle in Antitrust Review

The proposed merger between major health insurers Aetna Inc. and Humana Inc. continues to inch closer to finalization. In a recent press release, Aetna announced that 10 states have now signed off on its proposed acquisition of…more

Acquisitions, Aetna, Anthem Insurance, Antitrust Investigations, CIGNA

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D.C. Circuit Validates EPA’s Consultation Process for Reviewing Clean Water Act Permits

On July 11, 2014, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Environmental Protection Agency’s (EPA) “Enhanced Coordination Process,” which was developed with the United…more

Appeals, Clean Water Act, Coal Mines, EPA, Final Guidance

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Utah’s Personal Information Protection and Data Breach Laws

Utah, like most U.S. states, has enacted laws concerning data security and steps to take when a data breach occurs. Here is what Utah law provides as codified in Utah Code Ann §§ 13–44–101 et seq. The law has been in effect…more

Breach Notification Rule, Data Breach, Data Security, Personally Identifiable Information, Popular

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Senate Bill 165: Transferable Tax Credits for Film Industry

The film industry is a very exciting business and requires the involvement of many individuals and entities to complete a production. Bringing a commercial or full-feature film to millions of viewers is dependent upon the…more

Film Tax Credits, Movies, New Legislation

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On a Collision Course: How Domain Name Collision Could be Your Biggest Security Threat

We are barely a month into 2014 and one of the news stories that is likely to be most memorable for the year is the Target security breach that resulted in upwards of 70 million customers’ personal information being disclosed…more

Cybersecurity, Data Breach, Data Protection, Data Theft, Domain Names

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High Court's Clear and Loud Voice on Forum-Selection Clauses: Enforce Them

Last Tuesday, the U.S. Supreme Court unanimously held, in Atlantic Marine Construction Co. v. United States Dist. Ct., et al., No.-12-929 (December 3, 2013), that district courts must give valid forum-selection clauses…more

Enforcement, Forum, Forum Selection, SCOTUS

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Doing Business In Arizona - A Legal Guide

Contents: Part I: A Brief Factual Look at Arizona: - Population and Job Growth - Personal Income - Exports - Leading Industries - Location - Business Costs - Labor Force - Education - Government -…more

Business Ownership

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“CEQA-in-Reverse” Case Headed for the California Supreme Court

“CEQA-in-Reverse” - Real estate developers, public agencies and private businesses involved in land development or redevelopment may soon have to contend with a new far-reaching interpretation of the California…more

CEQA, Contractors, Environmental Impact Report (EIR), Environmental Policies, Land Developers

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Under Construction - June 2016

Welcome to the June 2016 edition of our Under Construction newsletter. Hope you are staying cool this summer. Are you legally operating your drone on the construction site? In our Winter 2015 Under Construction newsletter,…more

Commercial Use, Construction Defects, Construction Industry, Drones, Federal Aviation Administration (FAA)

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Protecting food industry innovations as the scope of patentable subject matter narrows

Strong intellectual property increases the value of a company. Copyrights, trademarks, patents, and trade secrets are some avenues to protect intellectual property, but understanding when they’re available and understanding…more

Alice Corporation, Bilski, Confidential Information, Draft Guidance, Food Manufacturers

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SEC Begins to Define “Substantial Implementation” Under Proxy Rule 14a-8(i)(10)

The SEC has recently provided guidance on the permissibility of excluding shareholder proxy access bylaw proposals under Proxy Rule 14a-8(i)(10). Rule 14a-8(i)(10) allows a company to exclude a shareholder proposal that has…more

Bylaws, Proxy Access, Rule 14a-8, SEC, Shareholder Proposals

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Invalidating Patents Through Inter Partes Review

In the nine and a half months since its creation, the U.S. Patent and Trademark Office's (USPTO's) new inter partes review proceedings have become a popular way to attempt to invalidate a patent. As of June 25, 2013, at least…more

Inter Partes Reexamination, Patents

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Data Center Contracts: Privacy and Security Terms

A sometimes overlooked but potentially significant liability exposure for any company that uses the “cloud” to remotely store, process or distribute data is the service provider contract between the company user and its data…more

Cloud Computing, COPPA, Data Centers, Data Protection, Gramm-Leach-Blilely Act

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Corporate Communicator - Winter 2016: 2016 Annual Meeting Season

Dear clients and friends, We present our traditional year-end issue of Snell & Wilmer’s Corporate Communicator to help you prepare for the upcoming annual report and proxy season. This issue highlights SEC reporting and…more

Audits, Board of Directors, Clawbacks, Conflict Mineral Rules, Conflicting Proposals

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Opening Statement: Our Members Share Their Secrets for Success

Two of my recent columns in Litigation— “Five Traits of the Best Lawyers I Know” (Fall 2013) and “Fourteen Tips to Make You a Better Litigator” (Spring 2014)— invited Section members to share your own practical tips for success…more

Professional Development, Trial Plan, Young Lawyers

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The Foreign Corrupt Practices Act’s One-Year “Pilot Program” Nears The Halfway Mark

The Foreign Corrupt Practices Act (“FCPA”) prohibits both United States and foreign corporations and nationals from offering or paying, or authorizing the offer or payment, of anything of value to a foreign government official…more

Books & Records, Bribery, Cooperation, Corruption, DOJ

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New Landlords Should Not Ignore Arizona’s Requirement To Register With The County Assessor’s Office

With ongoing price volatility in Arizona’s residential real estate market, homeowners may be tempted to become recreational landlords. Anyone considering renting their home, however, should be aware that Arizona law requires…more

County Assessors, Landlords, Registration Requirement, Rental Property, Residential Real Estate Market

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Energizing Transmission Construction in the Electric Industry

With so many personal gadgets needing daily recharging, desktop hard drives running 24 hours a day, and DVRs recording movies that run while we’re asleep, do you wonder where all that electricity is coming from? The next big…more

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Paid Sick Leave – It’s an Epidemic

From California to Connecticut, and places in between, the reach of paid sick leave laws is spreading rapidly. Currently, California, Connecticut, Massachusetts, Oregon and Washington D.C. have state- (or district-) wide laws…more

Accrual Method, Barack Obama, Executive Orders, Federal Contractors, Healthy Families Act

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Under Construction - March 2016

Welcome to the first edition of our Under Construction newsletter for 2016. Indemnity laws and clauses are a big part of construction contracts. They can make or break a project. Defend and indemnify obligations have the…more

Construction Contracts, Construction Defects, Construction Industry, Contract Drafting, Contract Negotiations

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P3 101— Is Your Local Legal Team Ready to Help on a P3 Project?

For many U.S. construction businesses, the term “P3” may conjure images of “the big catch”—much discussed but rarely seen, at least not at your fishing hole. While the public-private partnership model has long been used in…more

Due Diligence, Public Private Partnerships (P3s)

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Under Construction - December 2012

In This Issue: Letter from the Editor; Colorado Construction Law Developments in 2012; Arizona Court of Appeals Issues Decision Related to the Application of the Statute of Repose and Economic Loss Doctrine for Subsequent…more

Airspace, Construction Contracts, Construction Cranes, Construction Defects, Duty to Defend

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Federal Agencies Issue Guidance to Business Owners: A Forecast of Enforcement Trends

Over the past few months both the IRS and the Department of Labor (DOL) have separately issued guidance emphasizing the importance of proper worker classification and some of the more common employment tax-related issues posed…more

Employer Liability Issues, Employment Tax, Fringe Benefits, IRS, Misclassification

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2016 End of Year Plan Sponsor “To Do” List Qualified Retirement Plans (Part 3)

As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the…more

401k, 403(b) Plans, Benefit Plan Sponsors, Defined Benefit Plans, Defined Contribution Plans

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California Foreclosure Update: New registration requirements for foreclosed properties may lead to penalties, fines for lenders

Originally published in Western Real Estate Business, October 2012. The economic downturn has resulted in a record number of foreclosures in California. Many property owners have simply abandoned these foreclosed…more

Abandoned Property, Foreclosure, Lenders, Local Ordinance, Nuisance

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Avoiding Lender Liability for Credit-Related Actions in California

Aside from general statutory prohibitions on lender discrimination, there are certain circumstances under California law in which lenders may be held liable for credit-related actions, such as negotiating or denying credit. See…more

Arms Length Transactions, Bad Faith, Borrowers, Breach of Duty, Credit

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Under Construction - June 2015

Letter from the Editor - Welcome to the summer edition of our Under Construction newsletter. In this issue, we highlight several hot topic items affecting the construction industry such as what happens when the construction…more

Amended Legislation, Appeals, Architects, Construction Contracts, Construction Defects

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Murky Waters Following the Gold King Mine Spill

In the wake of actions taken on August 5, 2015 by contractors for the United States Environmental Protection Agency (EPA) that resulted in the Gold King Mine Spill, western states that rely on water from the Animas River, the…more

Clean-Up Costs, Contamination, Environmental Litigation, EPA, Original Jurisdiction

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A Glimmer of Hope for Condominium Developers

On September 26, 2013, the House of Representatives took a major step in simplifying the sale and lease process for condominium developments, voting 410/0 in favor of H.R. 2600, introduced by New York Republican Congresswoman,…more

Condominiums, Disclosure Requirements, Housing Developers, ILSA, Leases

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Additional Exhaustion of Administrative Remedies Requirements for Industries Governed by Federal Transportation Laws

The requirement for an employee to exhaust administrative remedies may go beyond filing a charge with the Equal Employment Opportunity Commission (“EEOC”) and state employment agencies. Industry-specific exhaustion requirements…more

ADA, Administrative Remedies, Department of Transportation (DOT), Discrimination, EEOC

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A Little Breathing Room: IRS Extends ACA Reporting Deadline and Good Faith Penalty Relief

The IRS delivered welcome news to employers gearing up to meet the Affordable Care Act’s (“ACA”) information reporting deadlines for the 2016 calendar year. In Notice 2016-70, the IRS extended the deadline to furnish Forms…more

Affordable Care Act, Employer Group Health Plans, Form 1095, IRS, Reporting Requirements

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Corporate Communicator - Winter 2016: 2016 Annual Meeting Season

Dear clients and friends, We present our traditional year-end issue of Snell & Wilmer’s Corporate Communicator to help you prepare for the upcoming annual report and proxy season. This issue highlights SEC reporting and…more

Audits, Board of Directors, Clawbacks, Conflict Mineral Rules, Conflicting Proposals

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If the Defend Trade Secrets Act Becomes Law, How Will it Affect Trade Secrets in Arizona?

If enacted, the federal Defend Trade Secrets Act (“DTSA”) could change how some trade secret misappropriation claims are litigated in Arizona. Trade secret plaintiffs generally must bring claims for misappropriation in state…more

Defend Trade Secrets Act (DTSA), Discovery, Jurisdiction, Misappropriation, Remedies

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In a Victory for Businesses and Developers, the United States Supreme Court Holds that Clean Water Act Jurisdictional Determinations Are Appealable

The United States Supreme Court ruled today that an approved jurisdictional determination under the Clean Water Act constitutes an immediately appealable agency action under the Administrative Procedure Act, 5 U.S.C. §§ 500 et…more

Administrative Procedure Act, Appeals, Clean Water Act, Corporate Counsel, EPA

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Nationwide Injunction Halts Enforcement of DOL Regulation on Overtime Pay

Last week, a federal judge from the United States District Court for the Eastern District of Texas entered a nationwide preliminary injunction prohibiting the U.S. Department of Labor (“DOL”) from implementing updates to the…more

DOL, FLSA, Minimum Salary, Over-Time, Preliminary Injunctions

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Nationwide Injunction Halts Enforcement of DOL Regulation on Overtime Pay

Last week, a federal judge from the United States District Court for the Eastern District of Texas entered a nationwide preliminary injunction prohibiting the U.S. Department of Labor (“DOL”) from implementing updates to the…more

DOL, FLSA, Minimum Salary, Over-Time, Preliminary Injunctions

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Doing Business In Arizona - A Legal Guide

Contents: Part I: A Brief Factual Look at Arizona: - Population and Job Growth - Personal Income - Exports - Leading Industries - Location - Business Costs - Labor Force - Education - Government -…more

Business Ownership

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Nevada Foreclosure Law Changes

The Nevada Legislature recently passed amendments to the Nevada Revised Statutes (NRS) that appear to be intended to ease the nonjudicial foreclosure process for lenders and provide meaningful disclosure of what borrowers need…more

Affidavits, Amended Legislation, Borrowers, Foreclosure, Trustees

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In Government's Shoes: The Continuing Force Behind the False Claims Act & Qui Tam Complaints

To combat fraud by contractors selling faulty war supplies to the Union Army, in 1863 President Abraham Lincoln signed into law the False Claims Act (the “FCA”). Designed to root out fraud on the federal government, this act…more

False Claims Act (FCA), Federal Contractors, Qui Tam, Whistleblowers

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Implementation Day: Not Such a Special Day for U.S. Companies

After months of preparations, January 16, 2016 was “Implementation Day” – the day when the world’s sanctions on Iran were officially rolled back. On January 16, the International Atomic Energy Agency determined that Iran had…more

Asset Freeze, Crude Oil, Foreign Entities, Iran Sanctions

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Delaware Legislature Rejects Fee-Shifting Bylaws for Stock Corporations

On June 24, Delaware’s Governor signed Senate Bill No. 75 into law and closed the door on the tantalizing prospect of fee shifting (“loser pays”) bylaws for Delaware stock corporations. The full text of the bill can be read…more

American Rule, ATP Tours, Bylaws, Delaware General Corporation Law, Fee-Shifting

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Is Coal Down For The Count

Last week Peabody Energy announced that it filed bankruptcy. Peabody is the nation’s largest coal company. The filing by Peabody comes on the heels of the January 2016 bankruptcy filing by Arch Coal, the nation’s second…more

Coal Industry, Commercial Bankruptcy, Electric Generation Suppliers, Energy Sector, EPA

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Nevada Supreme Court Issues Important Opinions Concerning Nevada’s Minimum Wage

On October 27, 2016, the Nevada Supreme Court published two opinions that directly affect Nevada employers and workers. Both dealt with Nevada’s Minimum Wage Amendment (MWA), an amendment added to the Nevada Constitution in 2006…more

Constitutional Amendment, Employer Group Health Plans, Minimum Wage, NV Supreme Court, Statute of Limitations

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Colorado Eschews “No Set of Facts” and Embraces the Federal Iqbal/Twombly Pleading Standard in Warne v. Hall

In 2007, the United States Supreme Court applied a new, stricter standard to motions to dismiss, and extended and further explained that standard in 2009. While some state courts have followed suit, others have reaffirmed the…more

CO Supreme Court, Motion to Dismiss, Rules of Civil Procedure, Tortious Interference, Twombly/Iqbal Pleading Standard

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Doing Business In Arizona - A Legal Guide

Contents: Part I: A Brief Factual Look at Arizona: - Population and Job Growth - Personal Income - Exports - Leading Industries - Location - Business Costs - Labor Force - Education - Government -…more

Business Ownership

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Does Everyone Need a South Dakota Trust?

South Dakota trusts have been around for years, but recently they have been brought to the attention of individuals outside of the estate planning community. Bloomberg recently ran an article, Little Tax Haven on the Prairie by…more

Estate Tax, Tax Haven, Trust Income

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Key Changes In The Nevada Rules Of Appellate Procedure

The past year has brought more changes to the Nevada Rules of Appellate Procedure (NRAP) than several previous years combined. The creation of the new Court of Appeals resulted in substantial changes to the rules. Also of note…more

Appeals, Rules of Appellate Procedure

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EPA Must Consider Regulatory Impacts on Coal/Utility Industry Jobs and Plant Closure

On October 17, 2016, the U.S. District Court for the Northern District of West Virginia granted summary judgment to Murray Energy Corporation and its subsidiary coal companies, including UtahAmerican Energy, Inc. The decision…more

Clean Air Act, Clean Power Plan, Coal Industry, Coal-Fired Plants, EPA

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Transgender Issues in the Workplace: Legal Issues and Considerations for Companies

Over this past year, there has been an increasing amount of attention on transgender persons both in the media and in the law. Garnering particular attention, North Carolina passed Senate Bill 2 which prohibits students and…more

Anti-Harassment Policies, Civil Rights Act, Discrimination, Employee Restrooms, Gender Discrimination

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Under Construction - September 2016

Letter from the Editor - Welcome to the Fall 2016 edition of our Under Construction newsletter. We hope your summer has left you relaxed and refreshed to successfully finish out the remainder of the year. Most states…more

Caltrans, Commercial Leases, Construction Contracts, Construction Industry, Contract Disputes

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Common Law Indemnity Claim Affirmed on Justifiable Beliefs

Yesterday, the Arizona Court of Appeals issued an interesting opinion in Hatch Development v. Solomon. Hatch illustrated two key points in real estate and construction litigation: (1) a contractor’s indemnity does not always…more

Common Law Claims, Construction Defects, Duty to Indemnify, Homeowners, Indemnity

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Writ of Certiorari Denied in Oracle v. Google: Software Declaring Code, Including Structure, Sequence, and Organization Remains Protectable as Copyright

On June 29, 2015, the U.S. Supreme Court denied Google, Inc.’s petition for writ of certiorari, leaving intact the Federal Circuit’s holding that Oracle’s Java API software, and particularly the API declaring source code, is…more

Appeals, Copyright, Copyright Infringement, Copyrightable Subject Matter, Oracle v Google

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Could Innocent Employers Go to Jail? Sex, Gender Identity and Phoenix’s New Criminal Ordinance

Opponents of newly approved amendments to the city of Phoenix’s Human Relations Ordinance (the Ordinance) had worried that the amendments could result in criminal penalties for employers and others who might bar transgender…more

Disability Discrimination, Discrimination, Gender Discrimination, Penalties, Sexual Orientation Discrimination

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Regulatory Burdens On Retailers Continue to Evolve

In the run up to the Presidential Election, you may have missed some of the following regulatory developments that might impact your business…more

Amended Regulation, EPA, Hazardous Waste, Proposition 65, RCRA

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An Ounce of Prevention - Strategic Outside General Counsel Solutions

All businesses (big and small) face legal issues every day ranging from the urgent (a lawsuit was just filed against the company), to the routine (a customer marked-up our form contract), to the mundane (where do we put our…more

Contract Disputes, Corporate Governance, Human Resources Professionals, Outside Counsel, Privately Held Corporations

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FTC Releases a Data Breach Response Guide For Business

Data breaches are fast becoming a fact of life. Experiencing a data breach is never a pleasant experience, regardless of how it happens – by accident, by criminal intent, or by system failure. Someone steals a company laptop…more

Breach Notification Rule, Cybersecurity, Data Breach, FTC, Incident Response Plans

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“CEQA-in-Reverse” Case Headed for the California Supreme Court

“CEQA-in-Reverse” - Real estate developers, public agencies and private businesses involved in land development or redevelopment may soon have to contend with a new far-reaching interpretation of the California…more

CEQA, Contractors, Environmental Impact Report (EIR), Environmental Policies, Land Developers

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Under Construction - September 2016

Letter from the Editor - Welcome to the Fall 2016 edition of our Under Construction newsletter. We hope your summer has left you relaxed and refreshed to successfully finish out the remainder of the year. Most states…more

Caltrans, Commercial Leases, Construction Contracts, Construction Industry, Contract Disputes

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The Tie that Binds: Enforceabliity of Merger Provisions Against Non-signatory Shareholders

The Predicament - One challenge encountered in M&A deals is how to bind all shareholders of the target company to all deal terms. For private companies with few shareholders, this is not much of a challenge. However, many…more

Acquisitions, Breach of Warranty, Buyers, Clawbacks, Escrow Accounts

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2016 End of Year Plan Sponsor “To Do” List Qualified Retirement Plans (Part 3)

As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the…more

401k, 403(b) Plans, Benefit Plan Sponsors, Defined Benefit Plans, Defined Contribution Plans

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Hot Topics in Utility Regulation and the Spread Option Offense (Yes, American Football Can Be an Analogy for Anything)

In the 1980s, legendary head coach Joe Gibbs for the Washington D.C. franchise was tortured about how to deal with ferocious pass-rushing force and elite outside linebacker Lawrence Taylor for the New York Giants (#2 overall…more

Electricity, Infrastructure, Net Metering, New Merchant Transmission Projects, Public Utilities Commission

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Supreme Court Ruling Encourages Courts to Award Attorney's Fees

Have you ever wished you could make the abusive party on the other side of your patent suit pay for your attorney's fees? The U.S. Supreme Court has made your wish a reality. Recent U.S. Supreme Court precedent has made it…more

Attorney's Fees, Highmark v. Allcare, Non-Practicing Entities, Octane Fitness v. ICON, Patent Infringement

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Ninth Circuit Upholds Felony Conviction of Urologist, Under FDCA, for Reusing Single-Use Needle Guides During Prostate Biopsies (September 9, 2016)

In 2014, Las Vegas urologist, Dr. Michael Kaplan, was convicted by a federal jury for reusing single-use plastic needle guides during prostate biopsies. He was convicted of conspiracy to commit adulteration in violation of the…more

Convictions, Criminal Prosecution, FDCA, Health Care Providers, Healthcare

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Nevada Supreme Court Reaffirms and Clarifies Sands Corp. Decision on Waiving Attorney-Client Privilege and the Work-Product Doctrine When Reviewing Documents to Refresh Recollection

Recently, we released a legal alert discussing the Nevada Supreme Court’s decision in Las Vegas Sands Corp. v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 13 (February 27, 2014), which addressed the intersection of NRS 50.125 and…more

Attorney-Client Privilege, Federal Rules of Civil Procedure, Privilege Waivers, Testimony, Waivers

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Utah Legislative Update: 2015 Water Law Legislation

This year the Utah Legislature took action on two water law issues that it has struggled with for several years—the authority of the State Engineer to consider forfeiture during review of change applications and the rights of…more

Administrative Authority, Forfeiture, Legislative Agendas, Rebuttable Presumptions, Shareholders

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Global Connection - June 2015

The latest edition of Global Connection offers insight into a potential money laundering crackdown in the real estate sector, information on the Federal Trade Commission’s approach to data breach investigations and a legal alert…more

Corporate Taxes, Data Breach, Filing Requirements, FinCEN, Foreign Affiliates

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California Increases the Contractor’s License Bond Requirement

The California Legislature recently enacted Senate Bill 467, increasing the license bond requirement from $12,500 to $15,000 for California contractors, effective January 1, 2016. Contractor’s license bonds generally exist to…more

Bonds, Contractor's License, Contractor's State License Board, General Contractors

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Cross-Border Insolvency Proceedings: Recent Chapter 15 Filings in the United States

It is not surprising that the amount of Chapter 15 bankruptcy filings is growing in the global economy. Chapter 15 was added to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. It is…more

Bankruptcy Code, Chapter 15, Commercial Bankruptcy, Cross-Border, Trade Agreements

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Taking The Leap: Bringing A Foreign Brand To The United States

Increasingly, franchise concepts that begin in one country soon find that expansion involves not only domestic growth, but also development in other jurisdictions including the United States. Over the past decade, advances in…more

Brand, Foreign Corporations, Franchises

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Arizona Offers Rare But Limited Opportunity to Avoid Penalties and Interest, and Optional Payment Plan – Application Deadline: October 31, 2016

On the heels of a very successful program that ended less than a year ago, the Arizona legislature has required the Arizona Department of Revenue (ADOR) to establish and administer a second “tax recovery program” that can help…more

Department of Revenue, Filing Requirements, Income Taxes, Payment Plans, Penalties

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SEC Announces Second Wave of Cyber Exams of Broker Dealers and Advisors – Is Your Firm Ready?

In April 2014, the Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert announcing its first cybersecurity sweep initiative. Pursuant to that initiative, the…more

Board of Directors, Broker-Dealer, Corporate Governance, Cyber Attacks, Cyber Incident Reporting

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A Death in the Family - Now What?

A death in the family is an emotional time, and often the task of closing out the decedent's life is an overwhelming and stressful responsibility left to the decedent's loved ones. Advance planning for the administration of your…more

Estate Tax, Executors, Probate, Trusts

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Someone Copied My Company’s Website Without Permission — What Can I Do About It?

You encounter a website that looks very similar to your company’s website. The similarities make clear that your website was copied. Even worse, it was copied by a competitor. Whether you hired a professional to design…more

Copyright Infringement, Copyright Registration, DMCA, Intellectual Property Protection, Technology

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Broemmer v. Abortion Services of Phoenix, Ltd. - Arizona’s Curious Contribution to the Law of Contractual Arbitration By Barry D. Halpern & Sara J. Agne

Originally published in Arizona Attorney - December 2012. October 2012 marked the 20th anniversary of the Arizona Supreme Court’s opinion in Broemmer v. Abortion Services of Phoenix, Ltd. In the two decades since Broemmer…more

Arbitration, Mediation, Medical Malpractice

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Nearly 50 Million Records Breached in California Since 2012

Earlier this month, the California Attorney General’s Office released the 2016 Data Breach Report covering years 2012 through 2015 for the State of California (the “AG’s Report”). The AG’s Report reveals that 557 data breaches…more

Attorney Generals, Cyber Crimes, Data Breach, Data Security, Hackers

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New Law Deals With Digital Assets After Death

In an article earlier this year we noted that at a large number of states had introduced legislation to address an emerging issue that is unique to our Information Age: how will our digital assets be accessed and used (or kept…more

Conservators, Custodians, Digital Assets, Estate Planning, Fiduciary Duty

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SCOTUS: Human Genes Cannot Be Patented. Is This the End or Beginning of Genetic Research?

For a Legal Perspective on today's much-anticipated U.S. Supreme Court "Myriad" decision that naturally occuring substances are not patentable, we turned to IP attorneys writing on JD Supra..…more

AMP v Myriad, Biotechnology, DNA, Healthcare, Human Genes

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Ninth Circuit Invalidates Class Action Waivers Contained in Employment Arbitration Policies

Beginning in approximately 2012, the National Labor Relations Board (“NLRB”) adopted the position that any class action waiver contained in an employment arbitration policy or agreement violates the right of employees to engage…more

Class Action Arbitration Waivers, Employment Contract, NLRA, NLRB, Protected Concerted Activity

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Church Property Tax Liability in Arizona for Commercial Leases

Arizona House Bill 2128, which was signed into law by Governor Doug Ducey on March 23, 2015, has potential impact on the commercial real estate leasing market. The bill enables owners of real property that is leased to…more

Churches, Commercial Leases, Leases, Property Tax, Tax Exemptions

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Franchisors Should Consider Signing a Conditional Lease Assignment Rather Than a Franchisee’s Lease

In Franchise & High Properties, LLC v. Happy’s Franchise, LLC, a 2015 decision issued by the Court of Appeals in Michigan, the franchisor, Happy’s Pizza Franchise, LLC, signed a five-year lease for the commercial space to be…more

Appeals, Assignments, Co-Tenants, Commercial Leases, Contract Terms

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Rooftop Solar Companies and Utility Regulation

Rooftop solar companies and their trade associations are intervening in a variety of state utility regulatory proceedings around the country. In Arizona, for example, in the past two years they have intervened in three rate…more

Clean Energy, Electricity, Energy Sector, Renewable Energy, Solar Energy

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Under Construction - December 2015

Letter from the Editor - Welcome to the final 2015 edition of our Under Construction newsletter. It is hard to believe that 2016 is right around the corner! Drones are a hot topic right now. The first article in this…more

City Councils, Construction Defects, Drones, Federal Aviation Administration (FAA), General Contractors

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2016 End of Year Plan Sponsor “To Do” List Qualified Retirement Plans (Part 3)

As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the…more

401k, 403(b) Plans, Benefit Plan Sponsors, Defined Benefit Plans, Defined Contribution Plans

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The Sell Decision: Aiding, Abetting Liability Not Added

In Sell v. Gama, the Arizona Supreme Court held that the Arizona Securities Act (the “ASA”) does not authorize a secondary liability claim for aiding and abetting another’s primary securities fraud. In so holding, the Supreme…more

Aiding and Abetting, Fraud, Securities Fraud

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Rounding the Circle: A young attorney becomes the champion her immigrant family never had

I was eight, and I remember we would always leave at dusk, driving south from Akron to the Ohio town where this man lived. When we arrived it would be dark, and we would park across the street, my parents and I perched in our…more

Young Lawyers

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Corporate Communicator - Fall 2015: SEC Proposes Rules for the Clawback of Executive Compensation

In this issue of the Corporate Communicator, we bring you an article about the SEC’s recently released proposal to adopt rules for the clawback of executive compensation. The proposal is already controversial and it may prove to…more

Board of Directors, Clawbacks, Corporate Officers, Disclosure Requirements, Dodd-Frank

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Corporate Communicator - Winter 2016: 2016 Annual Meeting Season

Dear clients and friends, We present our traditional year-end issue of Snell & Wilmer’s Corporate Communicator to help you prepare for the upcoming annual report and proxy season. This issue highlights SEC reporting and…more

Audits, Board of Directors, Clawbacks, Conflict Mineral Rules, Conflicting Proposals

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Tax Lien Purchasers Must Give MERS Notice, Says Arizona Appeals Court

Recognizing MERS’s role in modern day mortgage lending, the Arizona Court of Appeals confirmed in Delo v. GMAC Mortgage, LLC that tax lien purchasers must notify MERS when identified in the Deed of Trust before foreclosing on…more

Deed of Trust, Default Judgment, Foreclosure, Mortgages, Right of Redemption

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FDIC Issues Special Newsletter on Cyber Security – What You Need to Know

The Federal Deposit Insurance Corporation (“FDIC”) has been publishing FDIC Consumer News quarterly since 1993 to help people protect their money and avoid financial fraud and theft. In its Winter 2016 issue, the FDIC has…more

Cybersecurity, FDIC, Financial Institutions, Mobile Banking, Online Banking

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The New FCPA Cooperation Plan - Revitalized program or regurgitation of existing policy?

On April 5, 2016, the U.S. Department of Justice (DOJ) issued an Enforcement and Guidance Plan (Plan) concerning the Foreign Corrupt Practices Act (FCPA). While the new Plan could be interpreted as a novel departure from past…more

Anti-Corruption, Corporate Misconduct, DOJ, FCPA, Halliburton

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My Project Changed—Is My EIR Still Valid: A New California Supreme Court Case Provides Guidance

Change is inevitable. Many times between project approval and project construction fluctuations in market conditions, financing terms or other factors mandate project changes. Do the changes require a further or modified…more

Agency Deference, Appeals, CA Supreme Court, CEQA, Community Colleges

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First Paid Sick Leave and Now you're Telling Me Some Employees May No Longer Be Exempt from Overtime

A series of changes and new rules at the state and federal level over the last few months have compelled employers to re-evaluate and update their policies and practices. One of the latest changes, which takes effect on December…more

FLSA, Minimum Salary, Paid Sick Leave Act, Standard Duties Test, Wage and Hour

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Nevada Supreme Court Holds That Failure to Comply With Contract’s Mediation Provision Bars a Suit on the Contract

In MB America, Inc., v. Alaska Pacific Leasing Company, 132 Nev. Adv. Op. 8 (February 4, 2016), the Nevada Supreme Court was presented with an appeal from an order granting a summary judgment in the defendant’s favor because the…more

Commercial Leases, Contract Terms, Mediation, NV Supreme Court, Summary Judgment

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New Form I-9

The U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification. This new form (dated 11/14/2016) must be used by employers as of January 22, 2017…more

I-9, Updated Forms, USCIS, Verification Requirements

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Canadians Who Invested in U.S. LLPs and LLLPs Need to Rethink Their Choice of Entity

Historically, Canadian investors in U.S. partnerships benefitted from an extremely efficient income tax structure – i.e., a single level of tax, credit against Canadian taxes for taxes paid in the U.S., and an ability to qualify…more

Business Entities, Canada, CRA, Foreign Tax Credits, Investment

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A Death in the Family - Now What?

A death in the family is an emotional time, and often the task of closing out the decedent's life is an overwhelming and stressful responsibility left to the decedent's loved ones. Advance planning for the administration of your…more

Estate Tax, Executors, Probate, Trusts

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Arizona Residential Fall Protection Statute Repealed

By the actions of the Federal Occupational Safety and Health Administration (Federal OSHA), today the Arizona-specific residential fall protection statute has been repealed. Effective tomorrow, February 7, 2015, Arizona…more

Construction Accidents, Construction Project, Construction Workers, OSHA, Repeal

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Sign those Real Estate Agreements!

The Statute of Frauds is a BIG deal in real estate transactions and litigation. (This is our second post about it already…)…more

Brokers, Buyers, Real Estate Market, Signatures, Statute of Frauds

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Are You Keeping the Records Related to Your Company’s Selection Procedures? The EEOC is Watching...

Is your company aware that federal regulations require that employers retain certain personnel and employment records related to its selection procedures? A recent lawsuit by the Equal Employment Opportunity Commission (EEOC)…more

ADA, Criminal Background Checks, EEOC, Employment Discrimination, GINA

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The FTC Rules Against LabMD in On-Going Data Security Case

The lengthy saga between the Federal Trade Commission (FTC) and LabMD, Inc. reached another turning point on July 28, 2016. The FTC issued its unanimous Opinion in which it found that LabMD’s data security practices were…more

Actual Injuries, ALJ, Data Breach, Data Security, Enforcement Actions

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If Obamacare’s Days are Numbered, What’s Next? Trumpcare.

The Affordable Care Act has withstood 62 repeal attempts by the House of Representatives and several challenges brought to the U.S. Supreme Court. Now, with Donald Trump as President and a new Republican-led House and Senate,…more

Administrative Appointments, Affordable Care Act, CMS, Donald Trump, Filibuster

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They Blew Us Off – Insights into the State of New Mexico’s Suits Against the EPA and the State of Colorado

While speaking at a recent conference on natural resource damages, the Secretary of the New Mexico Environment Department, Ryan Flynn, outlined New Mexico’s grievances against the U.S. Environmental Protection Agency (“EPA”) and…more

Clean Water Act, Contaminated Properties, Contamination, Disaster Aid, Drinking Water

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Amended Federal Rules on Discovery to Impact Environmental Litigation

The Federal Rules of Civil Procedure were recently amended. Amongst the changes, perhaps the most significant are the changes to discovery under Rule 26. Previously, parties were entitled to conduct discovery regarding…more

Abusive Discovery Strategies, Discovery, Environmental Litigation, Federal Rules of Civil Procedure, FOIA

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New Federal Overtime Exemption Rule Will Become Effective December 1, 2016

The Fair Labor Standards Act is the federal law applicable to overtime compensation for employees. The U.S. Department of Labor (USDOL) announced this week that the overtime rule changes it proposed in 2015 will become effective…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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The Sell Decision: Aiding, Abetting Liability Not Added

In Sell v. Gama, the Arizona Supreme Court held that the Arizona Securities Act (the “ASA”) does not authorize a secondary liability claim for aiding and abetting another’s primary securities fraud. In so holding, the Supreme…more

Aiding and Abetting, Fraud, Securities Fraud

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United States Supreme Court Invalidates Aggregate Contribution Limits In Federal Campaign Finance Law

Yesterday the United States Supreme Court issued its decision in McCutcheon v. Federal Election Commission, invalidating federal statutory aggregate limits on the amount of money that an individual may contribute to all federal…more

Aggregation Rules, Federal Election Commission (FEC), McCutcheon v. FEC, Political Contributions, SCOTUS

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Software Patents – Not a Waste of Money After All?

Since the Supreme Court ruling in Alice Corp. v. CLS Bank International, that a specific software algorithm was ineligible for patent protection, rumors abound that all software-related inventions are unpatentable. Although the…more

Abstract Ideas, CLS Bank v Alice Corp, Computer-Related Inventions, Patent-Eligible Subject Matter, Patents

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First Paid Sick Leave and Now you're Telling Me Some Employees May No Longer Be Exempt from Overtime

A series of changes and new rules at the state and federal level over the last few months have compelled employers to re-evaluate and update their policies and practices. One of the latest changes, which takes effect on December…more

FLSA, Minimum Salary, Paid Sick Leave Act, Standard Duties Test, Wage and Hour

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What Utah Employers Need to Know About H.B. 251: Post-Employment Restrictions Act

On March 22, 2016, the Governor of Utah signed into law H.B. 251, the Post-Employment Restrictions Act. This was one of the most controversial bills considered this last session, and it underwent many changes through the course…more

Employment Contract, New Regulations, Non-Compete Agreements, Restrictive Covenants

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Real Estate Lien Priority Case - Effect of Subordination Agreement on Junior Liens

In a recent decision, the Utah Supreme Court addressed a matter of first impression in Utah, namely, whether a subordination agreement between two senior lenders, which reversed the priority of their respective liens against…more

Countrywide, Junior Lenders, Lien Priority, Mortgages, Non-Parties

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“Rip and Tear” Damage Remains Covered Under CGL Policy as “Accident”—for Now.

The Colorado Supreme Court has approved a settlement between the parties to an appeal of the 2012 Colorado Pool Systems v. Scottsdale Insurance Company Court of Appeals case, leaving that ruling intact. The ruling parses a fine…more

CO Supreme Court, Commercial General Liability Policies, Construction Contracts, Construction Defects, Construction Industry

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Government Contracting and Executive Orders Under a Trump Administration (Part Two)

How will President-Elect Trump handle paid sick leave for federal government contractors? On the campaign trail, President-Elect Trump stated he would support six weeks of paid maternity leave. But the paid sick leave prescribed…more

Barack Obama, Collective Bargaining, Davis-Bacon Act, Donald Trump, Executive Orders

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New IRS Notice Requirement for 501(c)(4) Organizations ** September 6 Filing Deadline Fast Approaching **

On July 8, 2016, the Internal Revenue Service (IRS) issued Revenue Procedure 2016-41 implementing a provision of the Protecting Americans from Tax Hikes Act of 2015 (the “PATH Act”). The provision, Section 405 of the PATH Act,…more

501(c)(4), Filing Deadlines, IRS, Non-Profits, Notice Requirements

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FTC Announces Increased Thresholds for HSR Premerger Notifications and Interlocking Directorates

The Federal Trade Commission (FTC) announced on January 21, 2016 the revised transaction thresholds that trigger the requirement to file a premerger notification and report form under the Hart-Scott-Rodino Antitrust Improvements…more

Filing Fees, FTC, Hart-Scott-Rodino Act, Reporting Requirements, The Clayton Act

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“Show Me The Note” Claims Find New Life in Recent Arizona Decision

In Steinberger v. McVey, the Arizona Court of Appeals breathed life into what most would label standard “show me the note” claims, in which borrowers challenge their lenders’ authority to foreclose, despite admitting their…more

Foreclosure, Mortgage Loan Servicing Standards, Mortgages

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The Yates Memo, Ten Months Later: What We Know and What To Do

Although the Yates Memo is now ten months old, senior executives and in-house counsel still do not have clarity about how the Department of Justice (“DOJ”) will apply the Memo’s principles to corporate investigations. On June…more

Cooperation, Corporate Misconduct, DOJ, Export Controls, False Claims Act (FCA)

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Global Connection - June 2015

The latest edition of Global Connection offers insight into a potential money laundering crackdown in the real estate sector, information on the Federal Trade Commission’s approach to data breach investigations and a legal alert…more

Corporate Taxes, Data Breach, Filing Requirements, FinCEN, Foreign Affiliates

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Another Step Closer to Direct Potable Reuse: California Releases Draft Report on the Feasibility of Developing Regulations for Direct Potable Reuse

The California State Water Board released its Draft Report on the Feasibility of Developing Regulations for Direct Potable Reuse (the “Draft Report”). California Water Code Section 13561 defines “direct potable reuse” as “the…more

Draft Guidance, Potability, Public Comment, Public Health, Recycling

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Offensive Discovery after Strudley and Changes to the Colorado Rules of Civil Procedure

Toxic tort cases often involve real property, especially in areas with large mining and energy sectors like the West and Southwest. The cases frequently have large potential damage values and require extensive discovery…more

CO Supreme Court, Contamination, Discovery, Energy Sector, Expert Witness

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EPA Issues Proposed Rule to Significantly Reduce Carbon Dioxide Emissions

Summer has kicked off with a regulatory push by the United States Environmental Protection Agency (EPA). This alert briefly addresses two recent EPA rulemakings…more

ASTM, Carbon Emissions, CERCLA, Clean Power Plan, Environmental Policies

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Location, Location, Location – A Brief Overview of Personal Jurisdiction, Forum Selection Clauses, and Why They Matter

Where a case is heard can make a critical difference to a company that is being sued. Will the company have the “home court” advantage and a jury that will know the company’s business, that the company employs people in the…more

Contract Terms, Forum Selection, Jurisdiction, Litigation Strategies, Personal Jurisdiction

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Arizona Offers Rare But Limited Opportunity to Avoid Penalties and Interest, and Optional Payment Plan – Application Deadline: October 31, 2016

On the heels of a very successful program that ended less than a year ago, the Arizona legislature has required the Arizona Department of Revenue (ADOR) to establish and administer a second “tax recovery program” that can help…more

Department of Revenue, Filing Requirements, Income Taxes, Payment Plans, Penalties

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Under Construction - September 2016

Letter from the Editor - Welcome to the Fall 2016 edition of our Under Construction newsletter. We hope your summer has left you relaxed and refreshed to successfully finish out the remainder of the year. Most states…more

Caltrans, Commercial Leases, Construction Contracts, Construction Industry, Contract Disputes

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Recent Developments in Colorado Construction Law

Hot Button Issues in Colorado Construction - Liability for owners, developers, contractors and design professionals - A construction defects measure, which was introduced to the state legislature in the 2014…more

Construction Defects, Construction Industry, Contractors, HOA, Real Estate Development

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Sierra Pacific v. Bradbury goes unchallenged: Colorado’s six-year statute of repose begins when a subcontractor’s scope of work ends

It’s official: the October 20, 2016 deadline to petition for certiorari to the Colorado Court of Appeals on its decision in Sierra Pacific Industries, Inc. v. Bradbury has passed, so it appears that decision will stand. In…more

Cause of Action Accrual, General Contractors, Statute of Repose, Subcontractors, Substantial Completion

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The Yates Memo, Ten Months Later: What We Know and What To Do

Although the Yates Memo is now ten months old, senior executives and in-house counsel still do not have clarity about how the Department of Justice (“DOJ”) will apply the Memo’s principles to corporate investigations. On June…more

Cooperation, Corporate Misconduct, DOJ, Export Controls, False Claims Act (FCA)

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2016 End of Year Plan Sponsor “To Do” List Qualified Retirement Plans (Part 3)

As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the…more

401k, 403(b) Plans, Benefit Plan Sponsors, Defined Benefit Plans, Defined Contribution Plans

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Nationwide Injunction Halts Enforcement of DOL Regulation on Overtime Pay

Last week, a federal judge from the United States District Court for the Eastern District of Texas entered a nationwide preliminary injunction prohibiting the U.S. Department of Labor (“DOL”) from implementing updates to the…more

DOL, FLSA, Minimum Salary, Over-Time, Preliminary Injunctions

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New Federal Overtime Exemption Rule Will Become Effective December 1, 2016

The Fair Labor Standards Act is the federal law applicable to overtime compensation for employees. The U.S. Department of Labor (USDOL) announced this week that the overtime rule changes it proposed in 2015 will become effective…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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Five Questions to Consider Before Seeking to Restrain a Former Employee from Engaging in Competitive Activity

Determining whether to enforce a restrictive covenant or confidentiality agreement against a former employee requires the careful consideration of legal, economic and practical considerations. Here are five questions an employer…more

Breach of Contract, Confidentiality Agreements, Corporate Counsel, Discovery, e-Discovery

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Under Construction - September 2015

Welcome to the fall edition of our Under Construction newsletter. The first article in this edition highlights the pros and cons of joint venturing on a construction project, and items to consider in preparing the joint venture…more

Construction Industry, Contract Termination, Contractors, Cost Recovery, Joint Employers

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If the Defend Trade Secrets Act Becomes Law, How Will it Affect Trade Secrets in Arizona?

If enacted, the federal Defend Trade Secrets Act (“DTSA”) could change how some trade secret misappropriation claims are litigated in Arizona. Trade secret plaintiffs generally must bring claims for misappropriation in state…more

Defend Trade Secrets Act (DTSA), Discovery, Jurisdiction, Misappropriation, Remedies

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2016: What’s on the Horizon for Salary Thresholds Under the FLSA, Employee Handbooks and the NLRB

There are several changes and new trends appearing this year in various areas of labor and employment law. This month’s Workplace Word highlights several of these changes and discusses what employers should expect this year…more

Employee Handbooks, Exempt-Employees, FLSA, Franchises, Joint Employers

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What Utah Employers Need to Know About H.B. 251: Post-Employment Restrictions Act

On March 22, 2016, the Governor of Utah signed into law H.B. 251, the Post-Employment Restrictions Act. This was one of the most controversial bills considered this last session, and it underwent many changes through the course…more

Employment Contract, New Regulations, Non-Compete Agreements, Restrictive Covenants

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Under Construction - September 2016

Letter from the Editor - Welcome to the Fall 2016 edition of our Under Construction newsletter. We hope your summer has left you relaxed and refreshed to successfully finish out the remainder of the year. Most states…more

Caltrans, Commercial Leases, Construction Contracts, Construction Industry, Contract Disputes

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D.C. Circuit Validates EPA’s Consultation Process for Reviewing Clean Water Act Permits

On July 11, 2014, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Environmental Protection Agency’s (EPA) “Enhanced Coordination Process,” which was developed with the United…more

Appeals, Clean Water Act, Coal Mines, EPA, Final Guidance

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Trademark Advice: Measure Twice, Cut Once — How to Avoid Unnecessary Legal Fees

Originally published in Utah Business. Very seldom do companies intentionally adopt trademarks that are likely to cause confusion in the marketplace or intend to profit on the goodwill of other companies. Yet, even without…more

Brand, Confusingly Similar, Inherently Distinctive, Legal Costs, Registration

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Government Contracting and Executive Orders Under a Trump Administration - Part One

With President-elect Trump’s victory, what is the future of President Barack Obama’s executive orders? As President Obama’s administration winds down, the Department of Labor has finalized regulations implementing several…more

Barack Obama, Disclosure Requirements, Donald Trump, Executive Orders, Fair Pay and Safe Workplaces

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The Department of the Interior Issues New Rules Regulating the Leasing of Tribal Lands

New regulations enacted by the U.S. Department of the Interior (DOI) applicable to tribal leases will have far reaching impacts on businesses, particularly renewable energy projects, utilizing tribal lands…more

Commercial Leases, Department of the Interior, Renewable Energy, Tribal Lands

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Green Energy Can Complicate Real Estate Foreclosures

A quick drive through almost any newer residential community in the Southwest will show that a lot of residents are embracing “Green Energy” or renewable energy by placing solar panels on their properties. While most people…more

Equipment Lease, Fixtures, Foreclosure, Lien Priority, Real Estate Transactions

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Arizona Offers Rare But Limited Opportunity to Avoid Penalties and Interest, and Optional Payment Plan – Application Deadline: October 31, 2016

On the heels of a very successful program that ended less than a year ago, the Arizona legislature has required the Arizona Department of Revenue (ADOR) to establish and administer a second “tax recovery program” that can help…more

Department of Revenue, Filing Requirements, Income Taxes, Payment Plans, Penalties

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New Twist on Insider Trading

Two federal indictments this week revealed a new approach to an old crime. The indictments returned in New Jersey (United States v. Turchynov et al., Case No. 2:15-CR-390) and the Eastern District of New York (United States v…more

Confidential Information, Hackers, Indictments, Insider Trading, Profits

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2016 End of Year Plan Sponsor “To Do” List Qualified Retirement Plans (Part 3)

As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the…more

401k, 403(b) Plans, Benefit Plan Sponsors, Defined Benefit Plans, Defined Contribution Plans

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Equitable Subrogation Part Deux: Mechanic’s Lien vs. Later Bank Deed of Trust

This post follows, almost two years to the day, Rick Erickson’s post of August 29, 2014. As noted by Rick Erickson in his August 29, 2014 post, the Arizona Supreme Court in the Weitz case (2014) had determined that equitable…more

Banks, Construction Loans, Deed of Trust, Equitable Subrogation, Lenders

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Arizona Corporation Commission Takes a Step Closer to Determining the Value of Distributed Generation for Arizona

On October 7, 2016, the Arizona Corporation Commission’s Hearing Division issued a Recommended Opinion and Order (“ROO”) in the Commission’s Investigation of the Value and Cost of Distributed Generation docket (Docket No…more

Net Metering, Renewable Energy, Solar Energy, Utilities Sector

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What the Trump Presidency Means for the Environment

To the victor belong the spoils, and President-elect Donald Trump’s victory in the presidential election (get used to it) and Republican Congressional control will significantly impact environmental programs and priorities going…more

Barack Obama, Clean Power Plan, Climate Change, DOJ, Donald Trump

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Impact of Delaware Fee-Shifting Provisions on Derivative Actions in California

A recent decision in the Delaware Supreme Court, in conjunction with the broad California exceptions to the internal affairs doctrine, may dictate the legal landscape of shareholder litigation in California in the near future…more

Bylaws, Derivative Suit, Fee-Shifting, Foreign Corporations, Forum Selection

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Tribal Groundwater Resources – Management Considerations Under Current Law

In the arid southwest, water is the most important and precious natural resource. In some communities, groundwater is the primary source, and often sole source, of water for domestic, agricultural irrigation, industrial, and…more

Department of the Interior, Groundwater, Groundwater Management Plan, Native American Issues, Tribal Lands

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Under Construction - September 2013: Utah’s Economic Loss Rule

In Utah, a plaintiff must generally in be in privity with the “original contractor, architect, engineer or real estate developer” to bring an “action for defective design or construction.” Utah Code Ann. §78 B-4-513(4). This…more

Assignments, Construction Defects, Design Defects, Economic Loss Doctrine, Privity of Contract

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Privacy Settings Won’t Keep Social Media Posts Out Of Court

On Jan. 7, 2015, in Nucci v. Target Corp., et al, the District Court of Appeal of the State of Florida, Fourth District, upheld a lower court’s order compelling plaintiff Maria Nucci to produce photographs originally posted to…more

Actual Injuries, Admissible Evidence, Discovery, Facebook, Fourth Amendment

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Privacy Settings Won’t Keep Social Media Posts Out Of Court

On Jan. 7, 2015, in Nucci v. Target Corp., et al, the District Court of Appeal of the State of Florida, Fourth District, upheld a lower court’s order compelling plaintiff Maria Nucci to produce photographs originally posted to…more

Actual Injuries, Admissible Evidence, Discovery, Facebook, Fourth Amendment

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A House of Cards: How Much Copyright Protection Remains for Architectural Works

Although copyright protection in the United States was extended to architectural works in 1990, this protection has become increasingly narrow. A recently issued Eleventh Circuit opinion, Arthur Rutenberg Homes, Inc. v. Jewel…more

Architects, Architectural Copyrights, Architecture, Construction Industry, Copyright

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Nevada Gaming Regulators Warn Against Medical Marijuana

Just as the application process for newly legal medical marijuana licenses has begun, Nevada’s Gaming Control Board (GCB) has issued guidance that should concern any current or aspiring gaming licensee who is also interested in…more

Gambling, Gaming, Marijuana, Medical Marijuana

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Arizona’s Revised Anti-Indemnification Statutes’ Effect on Insurance Requirements

In our last issue, we alerted you to Arizona’s revised anti-indemnification statutes (A.R.S. §§34-226 and 41-2586) regarding state and city public construction projects which became effective September 13, 2013. In this issue,…more

Commercial General Liability Policies, Contract Drafting, Indemnification, Insurance Industry, Negligence

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Someone Copied My Company’s Website Without Permission — What Can I Do About It?

You encounter a website that looks very similar to your company’s website. The similarities make clear that your website was copied. Even worse, it was copied by a competitor. Whether you hired a professional to design…more

Copyright Infringement, Copyright Registration, DMCA, Intellectual Property Protection, Technology

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Nevada Supreme Court Issues Important Opinions Concerning Nevada’s Minimum Wage

On October 27, 2016, the Nevada Supreme Court published two opinions that directly affect Nevada employers and workers. Both dealt with Nevada’s Minimum Wage Amendment (MWA), an amendment added to the Nevada Constitution in 2006…more

Constitutional Amendment, Employer Group Health Plans, Minimum Wage, NV Supreme Court, Statute of Limitations

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Writ of Certiorari Denied in Oracle v. Google: Software Declaring Code, Including Structure, Sequence, and Organization Remains Protectable as Copyright

On June 29, 2015, the U.S. Supreme Court denied Google, Inc.’s petition for writ of certiorari, leaving intact the Federal Circuit’s holding that Oracle’s Java API software, and particularly the API declaring source code, is…more

Appeals, Copyright, Copyright Infringement, Copyrightable Subject Matter, Oracle v Google

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Patience and Perseverance Paves the Way for Air-izona

John Quincy Adams is credited with saying: “Patience and perseverance have a magical effect before which difficulties disappear and obstacles vanish.” This is certainly apropos for Arizona in light of recent federal actions…more

Clean Air Act, EPA, Exceptional Events Rule (EER), Exemptions, Final Rules

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Washington Answers the Question of Whether Title Companies Owe a Duty of Care to Third Parties…

Last year, the Ninth Circuit certified to the Washington Supreme Court the question of whether title companies owe a duty of care to third parties when they record legal instruments…more

Duty of Care, Mortgages, Real Estate Market, Third-Party, Title Companies

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To Settle Privacy Law Claims, California AG Requires Firm to Hire a Chief Privacy Officer and Assess Privacy Risks

In October 2015, California Attorney General Kamela Harris announced a settlement with Bay Area housing design startup Houzz, Inc. to resolve alleged violations of California privacy laws. According to the AG’s office, for…more

Audio Recording, Houzz, Prior Express Consent, Privacy Laws, Settlement Agreements

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The New EEO-1 Pay Reporting Burdens Employers

In conjunction with the seventh anniversary of the Lilly Ledbetter Fair Pay Act, the EEOC and Office of Federal Contract Compliance Programs (OFCCP) proposed employers of 100 or more employees additionally report employee pay…more

Confidential Information, EEO-1, EEOC, Fair Pay Act, Federal Contractors

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Commercial Drones Set To Take Flight

On June 21, 2016, the Federal Aviation Administration (FAA) unveiled a landmark set of new rules for the commercial operation of small Unmanned Aircraft Systems (sUAS), more popularly known as drones. The new rules will take…more

Certifications, Commercial Use, Cybersecurity, Drones, Federal Aviation Administration (FAA)

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New Federal Overtime Exemption Rule Will Become Effective December 1, 2016

The Fair Labor Standards Act is the federal law applicable to overtime compensation for employees. The U.S. Department of Labor (USDOL) announced this week that the overtime rule changes it proposed in 2015 will become effective…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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2016 End of Year Plan Sponsor “To Do” List Qualified Retirement Plans (Part 3)

As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the…more

401k, 403(b) Plans, Benefit Plan Sponsors, Defined Benefit Plans, Defined Contribution Plans

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Considerations When Using Descriptive or Generic Trademark Terms

I. Adding Distinctive Terms or Logos to a Descriptive or Generic Term Will Not Protect the Descriptive or Generic Term. A descriptive trademark1 is one that immediately brings to mind a use, purpose, function,…more

Descriptive Trademarks, Functionality, Generic, Popular, Trademark Application

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Homebuilders Do Not Owe a Duty of Care to Non-Original Homeowners

Recently, the Arizona Court of Appeals answered another lingering question of paramount importance to the construction industry – whether homebuilders and other construction industry professionals may be indefinitely subject to…more

Construction Defects, Construction Industry, Economic Loss Doctrine, Homeowners, Negligence

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Arizona Supreme Court Affirms Corporation Commission’s Constitutional Authority

The Arizona Supreme Court has affirmed the broad constitutional powers of the Arizona Corporation Commission, in an opinion issued on August 8, 2016. The decision comes in Residential Utility Consumer Office v. Arizona…more

Administrative Authority, Appeals, AZ Supreme Court, Constitutional Challenges, Fair Value Standard

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Under Construction - December 2015

Letter from the Editor - Welcome to the final 2015 edition of our Under Construction newsletter. It is hard to believe that 2016 is right around the corner! Drones are a hot topic right now. The first article in this…more

City Councils, Construction Defects, Drones, Federal Aviation Administration (FAA), General Contractors

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The Tie that Binds: Enforceabliity of Merger Provisions Against Non-signatory Shareholders

The Predicament - One challenge encountered in M&A deals is how to bind all shareholders of the target company to all deal terms. For private companies with few shareholders, this is not much of a challenge. However, many…more

Acquisitions, Breach of Warranty, Buyers, Clawbacks, Escrow Accounts

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Incorporating a Partnership to Take Advantage of the Qualified Small Business Stock Rules (Update)

This is an update to a 2013 Legal Alert by Bahar Schippel and Bill Kastin titled: Excluding 100% of Gain From the Sale of Qualified Small Business Stock Acquired in 2013. Among the tax breaks included under the Protecting…more

Alternative Minimum Tax, C-Corporation, Capital Gains, Partnerships, Protecting Americans from Tax Hikes (PATH) Act

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Corporate Communicator - Winter 2016: 2016 Annual Meeting Season

Dear clients and friends, We present our traditional year-end issue of Snell & Wilmer’s Corporate Communicator to help you prepare for the upcoming annual report and proxy season. This issue highlights SEC reporting and…more

Audits, Board of Directors, Clawbacks, Conflict Mineral Rules, Conflicting Proposals

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The New FCPA Cooperation Plan - Revitalized program or regurgitation of existing policy?

On April 5, 2016, the U.S. Department of Justice (DOJ) issued an Enforcement and Guidance Plan (Plan) concerning the Foreign Corrupt Practices Act (FCPA). While the new Plan could be interpreted as a novel departure from past…more

Anti-Corruption, Corporate Misconduct, DOJ, FCPA, Halliburton

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New IRS Notice Requirement for 501(c)(4) Organizations ** September 6 Filing Deadline Fast Approaching **

On July 8, 2016, the Internal Revenue Service (IRS) issued Revenue Procedure 2016-41 implementing a provision of the Protecting Americans from Tax Hikes Act of 2015 (the “PATH Act”). The provision, Section 405 of the PATH Act,…more

501(c)(4), Filing Deadlines, IRS, Non-Profits, Notice Requirements

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Arizona Supreme Court Adopts Learned Intermediary Doctrine

The Arizona Supreme Court has issued an opinion adopting the learned intermediary doctrine in Arizona. The Supreme Court rejected the Arizona Court of Appeals’ earlier decision holding that the learned intermediary doctrine was…more

AZ Supreme Court, Duty to Warn, Learned Intermediary, Medical Devices, Pharmaceutical Industry

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Developer Awarded Cost of Preparing Administrative Record in CEQA Lawsuit

Lawsuits under the California Environmental Quality Act (“CEQA”) typically proceed as petitions for administrative mandamus. This means the petitioner is asking the court to review an agency’s decision and ultimately issue a…more

Administrative Proceedings, Administrative Record, CEQA, Construction Project, Environmental Impact Report (EIR)

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More Questions than Answers – The DOJ’s Sudden Change in Tactics in the Apple iPhone Encryption Dispute

In the ongoing iPhone encryption battle between the Department of Justice (“DOJ”) and Apple, March 22, 2016 might have been a pivotal moment in the national discourse on digital privacy rights, encryption, and the bounds of…more

All Writs Act, Apple, DOJ, Encryption, iPhone

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Under Construction - September 2016

Letter from the Editor - Welcome to the Fall 2016 edition of our Under Construction newsletter. We hope your summer has left you relaxed and refreshed to successfully finish out the remainder of the year. Most states…more

Caltrans, Commercial Leases, Construction Contracts, Construction Industry, Contract Disputes

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Under Construction - December 2015

Letter from the Editor - Welcome to the final 2015 edition of our Under Construction newsletter. It is hard to believe that 2016 is right around the corner! Drones are a hot topic right now. The first article in this…more

City Councils, Construction Defects, Drones, Federal Aviation Administration (FAA), General Contractors

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New OSHA Silica Exposure Regulations Enacted – Decades After They Were Proposed

On March 24, 2016, the Labor Department’s Occupational Safety and Health Administration (“OSHA”) finalized new regulations for workplace silica exposure…more

New Regulations, OSHA, Silica, Toxic Exposure, Workplace Hazards

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Punitives Slashed in Wyoming Carbon Monoxide Case

In a case closely watched by tort reformers, a federal appeals court has whittled a $25.5 million punitive damages award to $1.95 million in a carbon monoxide poisoning lawsuit in Wyoming. Reversing much of the lower…more

Appeals, Carbon Monixide Exposure, Due Process, Fourteenth Amendment, Punitive Damages

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Under Construction - March 2016

Welcome to the first edition of our Under Construction newsletter for 2016. Indemnity laws and clauses are a big part of construction contracts. They can make or break a project. Defend and indemnify obligations have the…more

Construction Contracts, Construction Defects, Construction Industry, Contract Drafting, Contract Negotiations

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Vendees' Liens—Construction Lenders Beware!

A recent Arizona Court of Appeals decision highlights a lien priority risk for secured construction lenders when the financed project fails. The problem—known as a “vendee lien”—is most likely to arise when up-front deposits are…more

Appeals, Condominiums, Construction Industry, Construction Liens, Construction Loans

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American Indian Tribes and Canadian First Nations: The Impact of Gaming Law and Policy on the Industry

In the United States, Indian gaming is a $29 billion industry, with some 240 American Indian tribes operating more than 450 gaming operations in 28 states. Alan Meister, Casino City’s Indian Gaming Industry Report (2016). In…more

Canada, Casinos, First Nations, Gaming, Gaming Legislation

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As Lake Mead Dwindles, Arizona and Other Colorado River Basin States Continue to Plan for a Drier Future

It has become a familiar refrain. For each of the past three years, the United States Bureau of Reclamation, which operates the major reservoirs on the Colorado River, has announced a new “record low” water elevation in Lake…more

Bureau of Reclamation, Inland Waterways, Water, Water Supplies

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Senate Bill 165: Transferable Tax Credits for Film Industry

The film industry is a very exciting business and requires the involvement of many individuals and entities to complete a production. Bringing a commercial or full-feature film to millions of viewers is dependent upon the…more

Film Tax Credits, Movies, New Legislation

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Increased Scrutiny and Punishment for Corporate Executives for Antitrust Violations

On February 19, 2016, an antitrust official with the U.S. Department of Justice (DOJ) announced the agency’s increased emphasis on individual accountability, and a renewed commitment “to holding accountable the highest-level…more

Antitrust Provisions, C-Suite Executives, Cartels, DOJ, Personal Liability

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Hold that paintbrush! A glimpse into design-control in planned communities

By: Erica Stutman You are choosing a new paint color for the outside of your house, and you think, “Since all the other houses are beige, I’ll do mine purple.” Not so fast – you better check your community’s governing documents…more

CC&Rs, Homeowners' Association, Planned Communities

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2016 End of Year Plan Sponsor “To Do” List Qualified Retirement Plans (Part 3)

As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the…more

401k, 403(b) Plans, Benefit Plan Sponsors, Defined Benefit Plans, Defined Contribution Plans

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Software Patents – Not a Waste of Money After All?

Since the Supreme Court ruling in Alice Corp. v. CLS Bank International, that a specific software algorithm was ineligible for patent protection, rumors abound that all software-related inventions are unpatentable. Although the…more

Abstract Ideas, CLS Bank v Alice Corp, Computer-Related Inventions, Patent-Eligible Subject Matter, Patents

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What Do I Do With This Stuff? Dealing With Abandoned Property After Foreclosure

You’ve successfully foreclosed on a commercial building in California, and, thankfully, the borrower moved out after foreclosure or after a period of tenancy. But the borrower left behind all sorts of property – furniture,…more

Abandoned Property, Commercial Real Estate Market, Commercial Tenants, Foreclosure, Landlords

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Recent Developments in the Gold King Mine Spill

On Tuesday, May 4, 2016, the U.S. Senate Committee on Indian Affairs chair, Sen. John Barrasso (R-WY), and committee member, Sen. John McCain (R-AZ) formally requested a federal criminal investigation into the Gold King Mine…more

Criminal Investigations, DOJ, Environmental Violations, EPA, Hazardous Substances

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Doing Business In Arizona - A Legal Guide

Contents: Part I: A Brief Factual Look at Arizona: - Population and Job Growth - Personal Income - Exports - Leading Industries - Location - Business Costs - Labor Force - Education - Government -…more

Business Ownership

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Despite Changing Economic Reality, Federal Court Holds Indian Tribes Have Sovereign Immunity in Bankruptcy, Absent Waiver

As the Indian gaming industry continues to thrive, Indian tribes are increasingly engaging in other commercial endeavors including banking, construction, energy, telecommunications, manufacturing, retail and more. Based on a…more

Bankruptcy Code, Casinos, Fraudulent Transfers, Hotels, Native American Issues

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Spotting an Accidental Franchise (and Why It Matters to You)

Imagine you own a successful business with retail locations in several Southern California cities offering desserts in a unique fun-filled party atmosphere operating under the name Dessert Dreams. A Chicago investor vacationing…more

Compliance, Employer Liability Issues, Franchise Tax Board, Franchises

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Cybersecurity Requirements Proposed for New York Financial Companies

The New York Department of Financial Services has proposed new cybersecurity regulations “designed to promote the protection of customer information as well as the information technology systems of regulated entities [financial…more

Banks, Covered Entities, Customer Protection Rule, Cybersecurity, Data Security

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UPDATE: UCC Amendments Signed by Governor Brewer

The 2010 Amendments to Article 9 of the Arizona Uniform Commercial Code are now effective. UCC Amendments Pass Both Houses of the Arizona Legislature - This alert was previously published on April 17,…more

Article 9, Proposed Amendments, Uniform Commercial Code (UCC)

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Workplace Investigations

If you are an employer or HR professional and have not had to conduct a workplace discrimination investigation, consider yourself lucky, or possibly naïve. At some point every employer will be confronted with the employee who,…more

Anti-Discrimination Policies, Complaint Procedures, Discrimination, Internal Investigations, Interviews

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Employer Wins Dismissal of Federal Claims for Wiping Data from Terminated Employee’s Smart Phone

In one of the first reported cases of its kind, a federal district court in Texas recently dismissed federal claims brought under the Electronic Communications Privacy Act (“ECPA”) and the Consumer Fraud & Abuse Act (“CFAA”)…more

Bring Your Own Device, Computer Fraud and Abuse Act (CFAA), Corporate Counsel, ECPA, Former Employee

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Summary of FDA Draft Guidance: Factors to Consider Regarding Benefit-Risk in Medical Device Product Availability, Compliance, and Enforcement Decisions

On June 16, 2016, the Food and Drug Administration (FDA) released a draft guidance entitled Factors to Consider Regarding Benefit-Risk in Medical Device Product Availability, Compliance, and Enforcement Decisions[2]. The…more

Draft Guidance, FDA, Manufacturers, Medical Devices

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Nationwide Injunction Halts Enforcement of DOL Regulation on Overtime Pay

Last week, a federal judge from the United States District Court for the Eastern District of Texas entered a nationwide preliminary injunction prohibiting the U.S. Department of Labor (“DOL”) from implementing updates to the…more

DOL, FLSA, Minimum Salary, Over-Time, Preliminary Injunctions

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The Department of the Interior Issues New Rules Regulating the Leasing of Tribal Lands

New regulations enacted by the U.S. Department of the Interior (DOI) applicable to tribal leases will have far reaching impacts on businesses, particularly renewable energy projects, utilizing tribal lands…more

Commercial Leases, Department of the Interior, Renewable Energy, Tribal Lands

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When to Think About an Interlocutory Appeal

You’ve just received a pretrial decision that seems to doom your client. You brace yourself for delivering the news and buckling down for a difficult trial. After all, there is no way to appeal that decision right now. Or is…more

Interlocutory Appeals

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Arizona Passes Proposition 206, Increasing the Minimum Wage and Requiring Paid Sick Leave for Hundreds of Thousands of Employees

During an election night fraught with surprises, one thing became clear: hundreds of thousands of Arizona employees will get a raise on January 1, 2017. Also, private sector employees in Arizona will have a right to accrue paid…more

Ballot Measures, Local Ordinance, Minimum Wage, Paid Sick Leave Act, Sick Leave

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Nevada Legislation Restores Rights to Note Purchasers

The Nevada Legislature ended its 2015 session on June 1. The Nevada Legislature meets in odd numbered years for 120 days, so it will not meet again until 2017, unless the Governor calls a special session. The Legislature enacted…more

Amended Legislation, Creditors, Deficiency Judgments, Foreclosure, Guarantors

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Lenders Can Prepare for Tenant Offset Rights in SNDAs

Tenants’ limited recourse to their landlords has made “offset rights” a major issue in negotiating Subordination, Non-Disturbance and Attornment Agreements (SNDAs). Tenant offset rights arise when the tenant has the right…more

Commercial Leases, Default, Foreclosure, Landlords, Lenders

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Corporate Communicator - Winter 2016: 2016 Annual Meeting Season

Dear clients and friends, We present our traditional year-end issue of Snell & Wilmer’s Corporate Communicator to help you prepare for the upcoming annual report and proxy season. This issue highlights SEC reporting and…more

Audits, Board of Directors, Clawbacks, Conflict Mineral Rules, Conflicting Proposals

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Global Connection - June 2015

The latest edition of Global Connection offers insight into a potential money laundering crackdown in the real estate sector, information on the Federal Trade Commission’s approach to data breach investigations and a legal alert…more

Corporate Taxes, Data Breach, Filing Requirements, FinCEN, Foreign Affiliates

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Contact

One Arizona Center, 400 East Van Buren Street
Suite 1900
Phoenix, Arizona 85004-2202, United States

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