January 2014

Note: This page features only a few of the main articles from our bar journal. COMMUNIQUÉ is printed and mailed to all CCBA members. An electronic version (PDF) of the full issue is available too.

Five Things Every Lawyer Should Know about Bankruptcy

By Laura A. Deeter, Esq.

© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2014, Vol. 35, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

While the economy may be recovering, there are still thousands of bankruptcy cases filed every year, so you may find yourself or a client in the midst of a bankruptcy. Whether trying to collect your fees or protect your client’s interests, here are five things every lawyer should know about bankruptcy.

1. What are the different bankruptcy chapters?
There are three main types of bankruptcies. A Chapter 7 bankruptcy, or liquidation, is available to individuals or businesses who choose to liquidate all of their nonexempt assets. A Chapter 13 bankruptcy is available only to individuals and allows them to reorganize and enter into a structured plan allocating all of their disposable income (income after allowed expenses) toward the payment of their debts. A Chapter 11 bankruptcy is available to individuals and businesses and allows them to reorganize through a plan of reorganization with stringent requirements for debt payment in order for the court to confirm their plan.

2. Do I need to file a proof of claim?
If you want to have any chance at being paid through a bankruptcy, you must file a timely proof of claim. In a Chapter 7, if there are non-exempt assets, you will receive a notice telling you to file a claim. In a Chapter 11 or 13, the notice of bankruptcy provides deadlines for filing your proof of claim. The form is available on the bankruptcy court website along with instructions.

3. What does the bankruptcy trustee do?
A bankruptcy trustee administers the bankruptcy estate on behalf of the creditors. A trustee is appointed by the court once a case is filed. The trustee has many duties, including preserving assets of the estate, liquidating assets of the estate, and making sure the debtor complies with applicable bankruptcy law. Chapter 7, 11, and 13 trustees also have other specific duties depending on the type of case filed.

4. What is the automatic stay?
The automatic stay goes into effect as soon as a bankruptcy petition is filed. It prohibits any actions that attempt to collect a debt from the person or entity who filed the bankruptcy petition. However, the automatic stay will not stop any criminal proceedings against a debtor or cases determining child support or custody. Any contact made to collect debt after the filing of a case is sanctionable, and one must proceed with caution once the case is filed to see if the debt will remain collectable post filing.

5. What is a 341 meeting and should I go?
The 341 meeting is a mandatory meeting of creditors, where the trustee questions the debtor regarding his or her bankruptcy filing to ensure the debtor has complied with all requirements. It also allows creditors the opportunity to ask the debtor questions regarding his or her bankruptcy filing. If you are a creditor and have questions regarding the Debtor’s assets or bankruptcy petition, then you should attend.
This is a small glimpse into the world of bankruptcy. If you have any questions regarding bankruptcy, please consult with an attorney who practices in the area.

Laura A. Deeter is a partner at the Ghandi Deeter Law Offices. The firm practices in the areas of bankruptcy, family law, probate, and guardianship. Questions can be directed to Laura at laura@ghandilaw.com.

Five Things Every Lawyer Should Know about DUI Law

By Craig Mueller, Esq.

© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2014, Vol. 35, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

1. The “under the influence” theory of criminal liability in a DUI prosecution

When an individual defendant receives a criminal complaint charging him with driving under the influence, different theories of liability are alleged. It is important to note that the prosecution is not required to prove all theories; merely one will suffice for the conviction of the defendant. The first theory is commonly referred to as the “Under the Influence Theory.” The complaint will state that on a certain date, the defendant was driving while under the influence of an intoxicant to any degree, however slight, which rendered him unable to safely operate a vehicle.

2. The “presumption” theory of criminal liability in a DUI prosecution
The theory most prosecutors hang their hats on is the “presumption theory.” Under this theory the prosecution must merely show that the defendant was driving or in actual physical control within two hours of the evidentiary sample taken. Poor driving is not a factor in the prosecution, with most observers believing you could have won the Indy 500, but if the BAC was .08 or more, you have committed a crime.

3. Physical control of vehicle
Physical control issues often appear, i.e. the driver was out of the car or sleeping when the officer arrived. What factors constitute criminal conduct are best outlined in Rogers v. State 105 Nev 230, 773 P.2d 1226 (1989).

4. Legality of the stop and subsequent detention.
In order for law enforcement to stop a vehicle the officer must have “reasonable suspicion.” Reasonable suspicion is a legal standard in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’; it must be based on ‘specific and articulable facts’.” Under a traffic scenario, a violation of a moving vehicle statute or an administrative requirement (i.e. invalid license plate) is required.

In order to arrest an individual, probable cause for the arrest must be established. Probable cause to arrest exists when police have trustworthy information of facts that are sufficient to warrant a person of reasonable caution to believe that a crime has been committed by the person held. In general, the Field Sobriety Test is used to establish probable cause to arrest. The standardized field sobriety tests include the Horizontal Gaze Nystagmus (HGN) test; the Walk and Turn Test; and the One Legged Stand test.

5. Evidentiary testing
Under the law, if an officer has established probable cause that the driver is under the influence, he may seek an evidentiary test of breath, blood, or urine to determine the level of intoxication. The attorney should check if the breath machine was calibrated within the last ninety days. The blood test is required to be taken in a medically acceptable manner and tested by an expert who must be qualified in court.

Craig Mueller is a long time resident of Nevada. After graduating high school in Las Vegas, he received an appointment to the United States Naval Academy and a subsequent commission in the Navy. After concluding his naval career, he attended law school and returned to Las Vegas. Craig’s law career included a position with the Clark County District Attorney’s Office as a prosecutor on the DUI team. He has subsequently practiced in the area of DUI for nearly twenty years.

Five Things Every Lawyer Should Know about Federal Trademark Applications

By Laraine Burrell and Nancy Ayala, Esq.

© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2014, Vol. 35, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

The apparent low-cost and perceived ease of the federal trademark application process may influence a non-trademark lawyer to file an application for a client. However, expensive problems arise if a lawyer is unaware of the following challenges to the federal trademark process:

1. Challenges from the United States Patent and Trademark Office (USPTO) examiner
A USPTO examiner reviews a trademark application for priority of use and likelihood of consumer confusion and determines whether, under the Trademark Manual of Examining Procedure (TMEP), the mark is entitled to registration. If the examiner determines the mark should not be registered, she will issue an “Office Action” that explains why registration is denied. Responding to an Office Action may require the filing of a complex trademark brief arguing for registration. Only if the application overcomes the examination process can it move forward to the next stage, which is publication.

2. Challenges before the Trademark Trial and Appeal Board (TTAB)
If the mark is approved for publication in the USPTO’s Official Gazette, third parties who believe they might be damaged by registration of the new mark have 30 days to file a TTAB “Opposition” proceeding during which the registration is opposed. An Opposition is a litigation proceeding that tracks the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the TTAB Manual of Procedure (TBMP). It requires an early case conference, allows for discovery, and a trial or testimony period.
The sole issue addressed in an Opposition is whether a mark is entitled to federal registration. No damages, attorneys’ fees, or costs are awarded. Therefore, the Opposition creates potentially expensive litigation without ability to recoup the money spent protecting a client’s mark.

3. Challenges after registration
A TTAB “Cancellation” proceeding is brought to cancel a mark that is already registered. The Cancellation is procedurally similar to an Opposition. The only issue in a Cancellation proceeding is whether a mark is entitled to retain its registration.

4. Challenges in federal court
Trademark applications and registrations can also be challenged in federal court. Parties to a TTAB action can concurrently file a federal court action. The power behind a federal action is that other trademark and related claims can be asserted. Also, damages may be awarded and an injunction may issue that prevents a party from using the subject trademark. The court also has the authority to cancel a federal registration when appropriate. TTAB actions are typically stayed pending the resolution of a federal action.

5. Minimizing challenges
Appropriate due diligence should be conducted before embarking on the federal trademark registration process, including using a trademark search service to identify other mark owners who might challenge your client’s mark. Although non-trademark lawyers should become familiar with the Lanham Act, 15 U.S.C. § 1051 et seq.; the TMEP; and TBMP, they  should seek guidance from an experienced trademark attorney who not only prosecutes trademark applications but also litigates trademark issues.

Laraine Burrell and Nancy Ayala are intellectual property prosecution and litigation attorneys with Greenberg Traurig LLP.

Five Things Every Lawyer Should Know about Non-Compete Agreements

By Chad D. Olsen, Esq.

© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2014, Vol. 35, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

In August 2012, the Wall Street Journal reported that “[t]he number of published U.S. court decisions involving noncompete agreements rose 61 percent since 2002.” Ruth Simon & Angus Loten, Litigation Over Noncompete Clauses Is Rising, Wall St. J., Aug. 15, 2012, at B1. To draft an enforceable non-compete agreement, counsel must consider the following:

1. Purpose
An employer has the right to protect business information with non-compete agreements, provided the agreement “is supported by valuable consideration and is otherwise reasonable in its scope and duration.” NRS 613.200(4). If a non-compete agreement is unreasonably restrictive, ambiguous, or punitive, then courts may construe the agreement against the employer or void the agreement as against public policy.

2. Consideration
In certain situations, consideration for non-compete agreements “may include continued employment after the employee’s agreement to the covenant.” Traffic Control Servs. v. United Rentals Northwest, Inc., 120 Nev. 168, 87 P.3d 1054, 1059 (2004). Consideration may also include promotions, benefits, training, entrusting the employee with proprietary information, or “garden leave,” which is an English concept whereby the employer pays the employee during the period in which the employee is restrained from competing. See Greg T. Lembrich, Garden Leave: A Possible Solution to the Uncertain Enforceability of Restrictive Employment Covenants, 102 Colum. L. Rev. 2291 (2002).

3. Duration
The time in which the employee is restrained from competing must be reasonably limited in light of the particular circumstances of the employment. See Ellis v. McDaniel, 95 Nev. 455, 596 P.2d 222, 224 (1979). A non-compete agreement is “unreasonable . . . if it is greater than is required for the protection of the [employer] . . . or imposes undue hardship upon the person restricted.” Hansen v. Edwards, 83 Nev. 189, 426 P.2d 792, 793 (1967). Factors in determining reasonableness may include the employee’s livelihood, harm to the employer, consideration, public interest in promoting business competition, the employee’s age, and market demand for the employee.

4. Scope
While courts often discuss the scope of a non-compete agreement in terms of geographic restrictions, whether an agreement is reasonable in scope also depends on the type of business or activity. “[W]hen an employer’s business is national in scope, an unlimited geographical scope may be reasonable so long as the field is sufficiently limited.” Accelerated Care Plus Corp. v. Diversicare Mgmt. Serv. Co., No. 3:11-cv-00585-RCJ-RAM, 2011 WL 367879, *4 (D. Nev. Aug. 22, 2011) (“In this Information Age, a per se rule against broad geographic restrictions would seem hopelessly antiquated.”). Restrictions as to the scope are reasonable if consistent with the scope of the employee’s duties and limited to where the employee has established contacts and good will.

5. Waiver
Although Nevada courts have not yet published opinions on these issues, non-compete agreements should include affirmations of the consideration and reasonableness, as well as waivers of the employee’s ability to challenge the consideration and reasonableness. See Joe Virene, Ten Drafting Tips For Covenants Not To Compete, http://www.jdsupra.com/legalnews/ten-drafting-tips-for-covenants-not-to-c-17328/ (Aug. 26, 2013). To satisfy waiver requirements, employers should include a space for signatures that specifically authorizes the waiver provision.

Chad D. Olsen is an associate at Payne & Fears, LLP. Mr. Olsen handles matters involving employment law, business torts, contract disputes, construction defects, and insurance coverage.

Five Things Every Lawyer Should Know about the Indian Child Welfare Act

By Alyssa D. Campbell, Esq.

© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2014, Vol. 35, No. 1). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

1. What is the Indian Child Welfare Act?
The Indian Child Welfare Act (ICWA), codified as 25 U.S.C. § 1901, et seq., is a federal law passed by Congress to keep American Indian families intact. The law specifically addresses the removal of Indian children from their families because, historically, American Indian children were being removed from their families at an alarming rate and then being adopted by or placed with non-native families. The intent of Congress in creating ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” 25 U.S.C. § 1902. ICWA also sets federal requirements that apply to both state and tribal child custody proceedings. Some states, such as Oklahoma, have also adopted state-level Indian child welfare acts.

2. When does ICWA apply?
ICWA applies in any state court proceeding for the foster care placement of or the termination of parental rights to an Indian child. This includes state-initiated actions such as cases involving deprived, neglected, or delinquent children, cases in which the child is removed from the family, or adoption or termination of parental rights cases. ICWA also applies to cases involving guardianship and conservatorship of an Indian child in which the parent cannot have the child returned upon demand. 25 U.S.C. § 1903(1). However, ICWA does not apply to divorce or paternity cases involving the biological parents of the child, regardless of whether the parents are Native American.

3. Who is an Indian child?
ICWA defines an Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). Each Indian tribe determines the eligibility requirements for membership.

4. What is the legal practitioner required to do to comply with ICWA?
ICWA requires the attorney for the party seeking the foster care placement of or termination of parental rights to an Indian child to notify the parents or Indian custodian, as well as the Indian child’s tribe, by registered mail with return receipt requested of the pending proceedings and of the tribe’s right to intervene. If the attorney does not know the identity of the child’s tribe, the attorney may provide notice to the U.S. Secretary of the Interior in the same manner. Additionally, the attorney should insure that no hearing is held for at least ten days after receipt of the notice. 25 U.S.C. § 1912.

5. What protections does ICWA provide for the Indian family?
ICWA requires the state provide active efforts to the family in cases in which the state is involved. “Active efforts” is not defined by ICWA, but there are guidelines on this published in the federal register. ICWA also requires that placement preferences for Indian children be followed. 25 U.S.C. § 1912. In addition to requirements to notify the Indian child’s tribe to allow for the tribe to intervene, ICWA also authorizes an Indian tribe to seek invalidation of an action when a party did not comply with the provisions of ICWA. 25 U.S.C. §§ 1914, 1915.
This article is intended to provide the legal practitioner with an awareness of ICWA. Indian law and ICWA are complex areas of law and the legal practitioner should exercise appropriate caution and diligence when undertaking cases of this nature.

Alyssa D. Campbell is a partner with Legal Advocates for Indian Country, LLP and practices Indian law primarily in Oklahoma.