January 2016

Click to download full issue (PDF).

Articles from the “Five Things” issue of the printed journal, Communiqué (January 2016) :

© 2016 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2016). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.

Nevada attorney Jennifer Roberts

Five Things Attorneys Should Know About Cybersecurity

By Jennifer Roberts, Esq.

Over the past few years, the increased need for protection against cyberattacks has not only created a demand for technology expertise, but has resulted in a niche industry in the legal marketplace. Cybersecurity involves the policies, procedures, and processes that are designed to protect data electronically stored and maintained by businesses and governments.

After hacks into the databases of several major companies, it became evident that the personal information electronically gathered by businesses required substantial protection. For example, earlier this year, Target agreed to settle a class-action lawsuit for $10 million relating to a breach that resulted in access to personal information of over 70 million customers, including the credit and debit card information of over 42 million patrons. See Miles Parks, “Target Offers $10 Million Settlement in Data Breach Lawsuit,” NPR (Mar. 31, 2015), available at http://www.npr.org/sections/thetwo-way/2015/03/19/394039055/target-offers-10-million-settlement-in-data-breach-lawsuit. This was followed by the intentional hack of customer information for the online website used by married adults looking for an affair, AshleyMadison.com, which resulted in the public announcement of at least one “celebrity” participant and the threat that all those with an account could be publicly named.

Even high levels of the government are vulnerable, as evidenced by the announcement a few months ago that the Pentagon’s e-mail system had been attacked. See Tom Vanden Brook & Michael Winter, “Hackers penetrated Pentagon email,” USA Today (Aug. 7, 2015), available at http://www.usatoday.com/story/news/nation/2015/08/06/russia-reportedly-hacks-pentagon-email-system/31228625/.
As clients look to protect against privacy and data breaches, here are five things attorneys in Nevada should know about cybersecurity issues.

1.  Nevada Law Requires Protections for Certain Personal Information

Although many high-profile data breaches have taken place within the last few years, NRS Chapter 603A was adopted by the Nevada State Legislature in 2005. The law was created to require security for certain personal information. Specifically, a business must take reasonable measures to protect the following information, when used in conjunction with a first name or first name initial plus last name, from “unauthorized access, acquisition, destruction, use, modification or disclosure,” see NRS 603A.210, if maintained in unencrypted files:

  • Social security number
  • Driver’s license, driver authorization card, or ID card number
  • Medical or health insurance identification numbers
    Bank account, credit card, or debit card numbers, plus PINs or passwords
  • User names, identifiers, or e-mail addresses together with passwords, access codes, or security questions and answers for an online account

NRS 603A.040, AB 179 (2015).

A business is not required to undertake special protections if they just have the last four digits of a social security number, driver’s license or driver’s authorization card number, or ID number, or any publicly available information from government records. See id. If a business accepts credit and debit cards, Nevada state law also requires compliance with payment card industry standards. NRS 603A.220.

2.  Clients Should Be Aware of the Federal Government Oversight Over Cybersecurity Violations

The Federal Trade Commission (FTC) has the authority to impose large fines against companies that have been subject to cybersecurity attacks. This was recently validated by the Third Circuit Court of Appeals in the case of Federal Trade Commission v. Wyndham Worldwide Corp., No. 14-3514 (3d Cir. Aug. 24, 2015), available at . The FTC is “an independent U.S. law enforcement agency charged with protecting consumers and enhancing competition across broad sectors of the economy.” Federal Trade Commission, “2014 Privacy and Data Security Update,” available at https://www.ftc.gov/system/files/documents/reports/privacy-data-security-update-2014/privacy datasecurityupdate_2014.pdf. Despite being able to take enforcement action against a company for breaches in privacy and data protection, the FTC also offers numerous resources and guidelines for companies to consider in helping prevent such breaches.

3.  The Breach Must Be Disclosed to Parties Who May Be Affected

Nevada law requires that if a cybersecurity attack occurs, those who may be affected must receive notice. If a business experiences a data breach, those whose personal information has been or may have been compromised must receive written or e-mail notice (or permitted substitute notice in certain circumstances), unless doing so would otherwise interfere with a law enforcement investigation. NRS 603A.220. So long as a business complies with Nevada law on protecting personal information and a data breach is not the result of gross negligence or intentional conduct by the company or any of its officers, employees, or agents, then the company will not liable for state-level civil damages resulting from the breach. NRS 603A.215(3).

4.  There are Many Ways to Protect Information against Cyberattack

Businesses with information requiring protection pursuant to NRS Chapter 603A must create and implement data and privacy protection policies and procedures. An initial step would be to review FTC and industry-specific publications on the topic. The policies and procedures, at a minimum, should outline and address who has access to data and personal information, who is responsible for monitoring such information, where personal information is stored and who has access to the storage, password access requirements, computer locking and logging off requirements, and how and to which employees are portable devices, such as laptops, company phones, and thumb drives given to and accessed by employees. If an employee has a company phone, downloads company information on a thumb drive to “work from home,” or borrows the company laptop for a work trip, it may be considered a breach if any of those devices are lost, so protections should be in place for these common situations.

Once a business has adopted its cybersecurity policies and procedures, customers should be advised of what data is collected and how the company keeps such information private. You are all familiar with such disclosures, but probably just skip over them and automatically check the box acknowledging that you reviewed the privacy guidelines before you proceed with your online purchase. However, you may want to just take a glance through them one day if you are providing personal information over the Internet.

NRS Chapter 603A.200 also mandates that a business establish reasonable procedures for destroying records. Therefore, the policies and procedures should contain details on the destruction of records, including how long records are kept, who is responsible for destruction, and the method of destruction and disposal.

In addition to written policies and procedures, a business must train its employees on cybersecurity protections and provide periodically provide refresher training sessions. The business should also routinely test and audit its data protection measures to help prevent and protect against an attack.

5.  Law Firms Need Cybersecurity Protection Too

It is not uncommon that a law firm will have personal information of clients, whether related to accounting and invoicing, a litigation matter, or a gaming license application. If a law firm cyberattack occurs, not only may a client’s personal information be accessible, but information protected by privilege and confidentiality can be compromised. A lawyer would hate to think of the consequences of client trade secrets, litigation strategy, or government investigative reviews being accessed and disclosed. Accordingly, law firms need to undertake strict protective measures to not only comply with Nevada law and FTC expectations, but to protect clients in accordance with the ethical obligations and responsibilities required of attorneys.

Jennifer Roberts is a partner at the international law firm of Duane Morris LLP. She focuses her practice on federal, state and local alcohol beverage licensing and control; gaming law, including gaming licensing, gaming compliance; and gaming law development; land use and zoning; business licensing and compliance; and regulatory and administrative law. She is also an adjunct professor of gaming law at both the William S. Boyd School of Law and the S.J. Quinney College of Law, University of Utah.

Five Things Nevada Attorneys Should Know About Electronic Discovery

By Ira Victor and Sean Brohawn, Esq.

1.  E-discovery is not the same as paper discovery.

Printing emails and other electronic files for production in paper form is not e-discovery! Printed emails and electronic files are not responsive to a proper e-discovery request.

NRCP 34(b) provides that a request for electronic information “may specify the form or forms in which electronically stored information is to be produced.” As a basic staring point, it is important to note that paper is not a “form” of electronically stored information. Instead, the rule permits a requesting party to specify an electronic format in which the data is to be stored for production.

But the fundamentally different nature of electronic information requires a fundamentally different approach. E-discovery is preserved, identified, collected, reviewed, and produced subject to discovery rules and widely accepted e-discovery protocols that are different from traditional paper discovery rules and conventions. These rules and protocols require a much greater level of cooperation, or coordination, between parties and their attorneys.

One widely-recognized e-discovery publication, entitled, “ The Sedona Principles,” provides several recommendations to promote the fair, orderly, and effective handing and production of electronic information. The Sedona Principles helped shape the e-discovery environment that led to e-discovery amendments to the Federal Rules of Civil Procedure.

The Sedona Principles suggest an early meeting between opposing counsel to identify the systems, software, and information assets that store and process potentially relevant electronic data. This information should enable a requesting party to narrowly tailor a request, so that certain computers or other data sources can be excluded from the search. The request would then identify search terms to be used to perform the searches, and extract files that contain terms likely to be contained in files that are relevant to the issues in the case.
To be most effective, this process requires a much greater degree of communication and cooperation between opposing counsel. The typically large volume and duplicability of electronic files can exact a toll from all parties in litigation, if over-inclusive search terms are applied. The early cooperation of opposing counsel facilitates the identification of the systems that may hold relevant information, the development of narrowly-tailored search terms designed to locate only relevant files, and the process of extracting the information itself.

Without such cooperation and communication, requests are uninformed, and therefore necessarily more likely to generate overbroad search results, and to intrude unnecessarily on the operations of the producing party.

2.  Persuasive ethical principles suggest that all Nevada attorneys should develop a basic knowledge of the rules and conventions related to the discovery of ESI.

A recent article discussed a California Bar opinion that identified specific actions and competencies all California attorneys should have related to e-discovery. “Ethical E-Discovery: What Every Lawyer Needs to Know,” Samantha V. Ettari and Noah Hertz-Bunz Legaltech News ((November 10, 2015). The article concludes that all California attorneys “have ethical obligations to develop and maintain core e-discovery competencies.” Among the required skills are the following:

  • Initially assessing e-discovery needs and issues, if any;
  • Implementing or causing implementation of appropriate ESI preservation procedures, such as circulating litigation holds or suspending auto-delete programs;
  • Engaging in “competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan”;
    Performing data searches;
  • Performing data acquisitions with both experts ‘in the room’;
  • Collecting responsive ESI (“in a manner that preserves the integrity of the ESI”); and
  • Producing responsive non-privileged ESI “in a recognized and appropriate manner.”
  • Additionally, the Comments to ABA Model Rule 1.1 provides in part that, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

3.  The ever-present, pervasive, and multiplying forms and uses of ESI often make it useful in civil litigation.

Potentially discoverable ESI of course exists in files on computer hard drives, in emails, and in text messages. But potentially useful and discoverable ESI may also exist in medical equipment and medical devices, workflow systems, digital watches, and vehicle computer systems.

ESI often is more useful than its paper counterpart because the ESI may contain metadata that would either be lost or become disconnected from its corresponding file, if the same file is printed and produced conventionally.

4.  Attorneys must act quickly to preserve crucial digital information

While this digital information can be useful to requesting parties, many potentially crucial sources are overwritten very soon after creation. This circumstance underscores the need in litigation involving ESI for immediate litigation holds that are sensitive to the systems that contain the ESI.

It also underscores a requesting party’s need to send an early, comprehensive preservation letter. An appropriate preservation letter should request that the parties meet to initiate a Sedona-like approach to the identification and preservation of ESI sources.

5.  E-discovery can be less expensive and time-consuming than attorneys think

E-discovery is expensive when parties wait to “see what we have.” This almost always results in a very costly process when e-discovery is finally considered. Parties then face the dilemma of facing the costs, or side-stepping e-discovery, often with negative results for clients. Smart litigators know that e-discovery is anchored in starting the process at the very start of a case. This approach reduces costs by focusing the efforts on relevant data, and providing ethical representation.

In the last few years, the number of high quality Free Open Source Software (FOSS) forensic applications has increased. This not only lowers costs, but a digital forensic experts skilled in the use of these applications can often uncover more useful information than is available from the traditional, and very costly proprietary forensic applications.

Ira Victor, GIAC G2700 GCFA GPCI GSEC ISACA CGEIT CRISC, is a digital forensic analyst with Nevada-based Data Clone Labs ( dataclonelabs.com). He helps litigators with game-changing techniques that speeds settlements. Victor has more than two decades of experience.

Sean Brohawn is an attorney with Brohawn Law in Reno, Nevada. Brohawn’s practice areas focus on real estate and business litigation. He has significant experience in the management of digital evidence at various stages of civil litigation.

NOTE: On November 18, 2015, Brohawn (left) and Victor (right) presented “Digital Forensics in Litigation: Foot-Dragging Trips You, Not Them” a CLE seminar produced by CCBA’s CLE Committee. This seminar was recorded and will be available in audio (.mp3), video (.mp4) and DVD formats from the CCBA. Contact CCBA at (702) 387-6011 or order online at http://www.clarkcountybar.org/events/recorded-cle-seminars/.

Nevada Judge Mathew Harter

Five Things Attorneys Should Know About Requesting Costs

By Judge Mathew Harter

1.  Awards of Costs Can be Either Mandatory or Discretionary

NRS 18.020 sets forth the various bases for mandatory awards of costs for the prevailing party. Probably the most common is NRS 18.020(3), which allows for reimbursement of costs in cases where the plaintiff sought to recover more than $2,500 in money damages. Schwartz v. Estate of Greenspun, 881 P.2d 638 (1994), is an example wherein the court reiterated that the mandatory provisions under this statute are not ambiguous, mandatory means mandatory. For all other actions, a prevailing party in a district court action may be awarded all or only part of their requested costs under NRS 18.050. In Mays v. Todaro, 626 P.2d 260 (1981), the court held that in these type of cases, an award of costs is completely discretionary with the district court and the district court will only be reversed in the event of abuse.

2.  Timeliness of the Request

Beware! The time parameters regarding a request for costs are extremely short. Pursuant to NRS 18.110(1), the prevailing party is required to both file and serve the request for costs within 5 days after the entry of judgment. However, the Court in Eberle v. State ex rel. Nell J. Redfield Trust, 836 P.2d 67 (1992) (upheld over 20 years later in Franchise Tax Bd. of Cal. v. Hyatt, 335 P.3d 125 (2014)), held that the district court may at its discretion grant additional time beyond the 5 day time period, even impliedly on its own accord. To be prudent, the prevailing party should expressly request the additional time if needed. Under NRS 18.110(4), the losing party then has only 2 days after being served with the prevailing party’s memorandum to file and serve a motion to have the district court review (“retax and settle”) the request for costs.

3.  Format of the Request

Under NRS 18.110(1), the request for costs must be in memorandum format filed with the Clerk of the Court including: (1) a verification under oath by the party or their attorney; (2) stating to the best of their knowledge the items are correct; and (3) that the costs were necessarily incurred. If the request for costs is contested by the losing party, it must be in proper motion format. EDCR 2.20 sets forth the format requirements for local motion practice.

4.  Content of the Request

NRS 18.005(1)-(16) defines exactly what “costs” are eligible for reimbursement. NRS 18.005(17) is a catchall provision which allows for “any other reasonable and necessary expense that was incurred in connection with the action.” The Court in Cadle Co. v. Woods & Erickson, LLP, 345 P.3d 1049 (2015), held that the request for costs must: (1) be actual, not a just a “guestimate”; (2) include proper, actual documentation of the cost incurred; and (3) be reasonable and necessary. The requests for photocopies, runner fees and deposition transcripts in Cadle Co. were remanded back because they did not meet the aforementioned criteria. Of note is what many attorneys erroneously include in their request for costs. In LVMPD v. Yeghiazarian, 312 P.3d 503 (2013), the court indicated that amounts incurred for secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills their client are to be included in the motion for attorney’s fees.

5.  Requests for Expert Witness Costs Just Got More Complex

NRS 18.005(5) allows for the reimbursement of 5 expert witnesses at $1,500 each unless the district court determines that a larger fee is “necessary.” Recently, the Court of Appeals of Nevada in Frazier v. Drake, 357 P.3d 365 (2015) drastically changed the requirements for reimbursement of expert witness fees. Frazier held that the district court must now have “evidence” that the expert witness costs were reasonable, necessary, and actually incurred “that goes beyond a mere memorandum of costs.” Frazier indicated that the district court should consider several factors including: (1) the importance of the expert to the parties’ case, (2) the degree to which the expert aided the trier of fact, (3) whether the testimony of the expert was repetitive, (4) the extent and nature of the work performed by the expert, (5) whether independent investigations or testing had to be done by the expert, (6) the amount of time the expert spent writing a report, preparing for court and spent in court, (7) the expert’s area of expertise, (8) the expert’s education and training, (9) the actual fee charged by the expert, (10) fees traditionally charged by similar experts on related matters, and (11) comparable fees charged in similar cases (using local rates if the expert is from out-of-state). Frazier also held that the district court must ultimately issue “an express, careful and preferably written explanation of the court’s analysis of factors pertinent to determining the reasonableness of the requested fees and whether the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”

In summary, it is critical to watch the strict time deadlines in requesting costs and do not expect that a district court will grant you a discretionary extension under Eberle. If time is going to be an issue, it would be prudent to file a motion for an order shortening time to expressly request the additional time or even make the request immediately at the end of the trial if it is known that extra time will be needed. Make it easy on the district court by drafting an organized, cogent memorandum of costs, including actual documentation of the costs incurred. A well-drafted and organized memorandum of costs will increase the likelihood of getting your client’s costs reimbursed compared to a poorly drafted, haphazard request. If you used expert witnesses and are seeking reimbursement of these costs, you must address the Frazier factors noted above in your request. The district court cannot investigate these factors on its own. Finally, it is obviously prudent to try to convince the district court that your case falls within the mandatory provisions of being awarded costs. However, if you are unsuccessful at this, do not be offended if the district court does not award every cent of the costs that you requested as it is up to their discretion. Sometimes costs incurred in good faith can ultimately be determined to be unnecessary.

Judge Mathew Harter is a native Nevadan (Bonanza H.S. 1984) elected to Eighth Judicial District Court, Family Division, Department N in 2008. He graduated from UNLV with a B.S. in Bus. Admin. then received his J.D. Cum Laude from Western Michigan University (Cooley Law School) in 1994 where he served on Law Review, the National Moot Court Team and at indigent law clinics. He then clerked for Judge Gerald Hardcastle and then went directly into private practice, practicing primarily in Family Law during which time he also served as an Arbitrator for District Court.

Nevada attorney Jack Fleeman

Five Things Attorneys Should Know About Family Law

By Jack W. Fleeman

Volumes have been written about what an attorney must know to have a reasonable level of competency in the area of family law. Of course, that level of discussion and analysis is not possible in an article in the Communiqué. As such, rather than attempt to write a severely abridged version of a family law treatise here, my goal is to draw attention to five things that non-family law attorneys should think about, or at least be aware of, before venturing into family court.

1.  Jurisdiction and Power of the Family Court

The Eighth Judicial District Court of Nevada (Clark County) family division was established because the county has a population of more than 100,000 people. See NRS 3.0105. The judges within the family division are district court judges with exclusive jurisdiction over a broad range of matters that impact the familial unit including divorce, custody, paternity, guardianship, and adoption. See NRS 3.223. This legislative grant of exclusive jurisdiction has not, however, limited the power of the family division judge to hear and dispose of matters outside of the familial realm. The Supreme Court of Nevada has explicitly held that the family division judge is a district court judge “empowered with constitutional judicial power” to dispose of cases even when the case may be “outside the scope of the family court’s jurisdiction” under NRS 3.223. Landreth v. Malik, 127 Nev. 175, 251 P.3d 163, 172-73 (2011).

2.  Family Law Specific Rules

There are family law specific rules within the Nevada Rules of Civil Procedure (NRCP). Most of these family law specific rules are discovery requirement rules related to annulment, divorce, separate maintenance, custody, and paternity matters, as well as post-judgment proceedings in these matters. See NRCP 16.2 – 16.21. These rules are important to know because the discovery process in family law cases is governed by these rules, not the general civil rule found in NRCP 16.1.

Another family law specific section of the rules is NRCP 65(f), which states that normal requirements of notice and giving of security when seeking injunctive relief are “not applicable to suits for divorce, alimony, separate maintenance or custody of children” where the “court may make prohibitive or mandatory orders, with or without notice or bond, as may be just.”

Beyond the NRCP, the Rules of Practice for the Eighth Judicial District Court Rules (EDCR) have an entire section, “Part V,” that governs family division matters. This section contains a myriad of rules dealing with everything from conducting child interviews, to mandatory mediation, to the burden of proof when a party applies for a domestic violence protective order.

3.  The Changing Legal Landscape

Family law in Nevada is fluid, with significant changes to substance and procedure seemingly occurring every year. In fact, in recent years, even some of the core legal terms have taken on new meaning. For example, for many years the term “joint physical custody” was undefined. This changed in 2009 when the Supreme Court of Nevada in Rivero v. Rivero, 125 Nev. 410, 421, 216 P.3d 213, 222 (2009), provided a definition of joint physical custody as any custodial timeshare where each parent has at least 40 percent of the time, over a year, with his or her child. This bright-line rule was short lived. This year, the Court decided to blur the 40 percent rule, holding that the district court has “broad discretion” to award joint physical custody to a parent with less than 40 percent, if such an award is in the child’s “best interests.” Bluestein v. Bluestein, 131 Nev. Adv. Op. 14 (2015).

The Bluestein decision is just one example of the dozens of cases over the past few years that show the evolution of family law through the common law process. But that is not the only process where changes have occurred. Significant changes have also come through the legislative process.

The 78th (2015) Session of the Nevada Legislature saw the enactment of bills that have already begun to have an impact on the practice of family law. Among the numerous changes, the legislature has for the first time included a preference for an award of joint physical custody where “a parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.” See AB 263, Section 6 (Chapter 125C, Nevada Revised Statutes 2015). This principle seems straight-forward on the surface because the majority of parents already ended up with joint physical custody before the change. However, the term “preference” has already caused debate within the Family Law Section of the State Bar, and there is reportedly a disagreement among judges, as to whether “preference” means “presumption” in this context. And, if it does mean “presumption,” what burden of proof is required to rebut it. Suffice it to say, the practitioner going into family court should, at a minimum, review the recent legislative changes that impact family law, and understand that there is disagreement among lawyers and judges as to what those changes mean.

In addition to case law and statutes, the aforementioned EDCR Part V is in the process of undergoing substantial revision—perhaps more aptly called a re-write—that will have a significant impact on the practice of family law. This upcoming revision, which among other things reportedly includes drastic changes to the timing rules for filings in family court, is just another example of the need for the practitioner to make sure he or she is up to speed on the ever changing legal landscape of family law.

4.  Emotions and Expectations

Two keys to being a successful family law lawyer are: (1) to be prepared for the emotional charge that exists in these types of cases; and (2) to properly set the client’s expectations. Clients in family law cases often come into a consultation with expectations shaped by third-hand accounts of what happened in their sister-in-law Jenny’s divorce in Florida 20 years ago. It is essential for these clients, who may demand unreasonable things such as lifetime alimony after a two-year marriage, to understand that while there is no formula for alimony in Nevada, their specific desires are not reasonable given the facts in their case. It is also important for them to understand that the infidelity in the marriage, while perhaps morally wrong, is not going to be remedied by an award of primary physical custody (absent a showing that the infidelity directly impacted the child’s best interests) or a greater share of the community property (absent a showing that the infidelity resulted in community waste).

Nevada is a “no fault” state, focused on the best interests of the children when custody is at issue. Thus, the family court judge, much to the dismay of clients, is simply not able to provide relief (other than granting the divorce) for broken marital vows; nor can the judge force a parent to be a better dad or mom.
All of these things are important to tell your clients during a consultation so that their expectations are reasonably set at the outset of their case. Having the information allows the client to process the grief of the divorce and/or custody battle over the length of the case, rather than all at once when the judge issues orders after trial.

5.  A Wealth of Resources

The Family Law Section of the State Bar of Nevada, in addition to being a very generous section in terms of pro bono service, is one of the most approachable sections of the bar. In my experience, the members, including the most experienced and well respected members, are more than happy to pick up the phone and discuss a case with a lawyer new to the area of family law. The comradery among family law practitioners is on display at the Advanced Family Law CLE each December, as well as at the Annual Family Law Conference in Ely, Nevada. In fact the Ely conference, which takes place at the beginning of March, has more attendees each year than the annual state bar conference. I would encourage anyone interested in taking a family law case to attend one of these conferences.

Jack W. Fleeman is an attorney at the Pecos Law Group.
His practice includes representing clients in a wide range of domestic relations matters, including complex divorce, custody, child support, paternity, relocation, adoption, and termination of parental rights.

Nevada attorney Jennifer Hostetler

Five Things Attorneys Need to Know About the Age Discrimination In Employment Act

By Jennifer K. Hostetler, Esq.

1.  What is the Age Discrimination in Employment Act (ADEA)?

The Age Discrimination in Employment Act of 1967 (“ADEA”) protects employees and job applicants age 40 and older from discrimination with respect to any term, condition, or privilege of employment including in hiring, firing, promotion, layoff, compensation, benefits, and job assignments because of the employee’s or applicant’s age.

The ADEA also makes it unlawful to retaliate against an individual for opposing employment practices that discriminate against those age 40 and older, for filing an age discrimination charge, or otherwise participating in an investigation or proceeding under the ADEA.

The ADEA, however, does not make it unlawful for employers to take certain actions prohibited by the ADEA in limited circumstances. For example, age may be considered a bona fide occupational qualification when reasonably necessary to the normal operation of the particular business. Additionally, it is not unlawful for an employer to observe the terms of a bona fide employee benefit plan or to observe the terms of a bona fide seniority system as set forth in 29 U.S.C. § 623(f)(2).

2.  Which employers are required to comply with the ADEA?

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

3. Does an employee or job applicant have to exhaust administrative remedies before filing suit?

The ADEA requires individuals to exhaust available administrative remedies as a condition precedent to filing a civil action for damages. The employee or job applicant alleging discrimination must file a timely charge with the Equal Employment Opportunity Commission or, in Nevada, the Nevada Equal Rights Commission and obtain a “right to sue” letter from that agency. The “right to sue” letter notifies the individual that he has 90 days after receiving notice of the right to sue to file a civil action.

4.  How long does an individual have to file an administrative charge of discrimination?

In general, the employee or applicant must file a charge within 180 calendar days from the day the discrimination took place. In Nevada, the 180-calendar-day filing deadline is extended to 300 calendar days. Federal employees and job applicants follow a different complaint process and generally must contact the employer’s Equal Employment Opportunity counselor within 45 days of the discrimination.

Can an individual waive his/her rights under the ADEA?

An employer may ask an employee to waive his/her rights or claims under the ADEA. Such waivers are common in separation agreements or in the settlement of ADEA claims. However, the ADEA, as amended by the Older Workers Benefit Protection Act of 1990, requires a release to be knowing and voluntary and establishes specific minimum requirements for an ADEA release to be valid. At minimum, a valid ADEA waiver must: (1) be in writing and be understandable; (2) specifically refer to ADEA rights or claims; (3) not waive rights or claims that may arise in the future; (4) be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled; (5) advise the individual in writing to consult an attorney before signing the waiver; and (6) provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it. Additional requirements must be met if an employer requests an ADEA waiver in connection with an exit incentive or other employment termination program.

Jennifer K. Hostetler is the Chief Deputy Attorney General of the Personnel Division of the Nevada Attorney General’s Office. Her practice includes representing and advising Nevada executive branch departments, divisions, and agencies in all aspects of state and federal employment law.

Nevada attorney Matt Policastro

Five Things Attorneys Should Know About Estate Planning

Nevada attorney Var Lordahl

Var Lordahl, Esq. & Matt Policastro, Esq.

1.  Estate planning is not just for the wealthy

A properly drawn estate plan can be beneficial to any client, not just those with substantial net worth. While the term “estate plan” often brings to mind complex trusts and tax planning strategies, in actuality, the vast majority of estate plans are created for individuals and families whose net worth is far more modest.

Regardless of a client’s assets, a comprehensive estate plan can provide who receives custody of children in the event that the testator dies or becomes incapacitated, and will include medical directives and a healthcare power of attorney in the event that the testator is no longer able to make medical decisions. These documents greatly ease the tension and stress on the immediate family of an ill or deceased testator.

An estate plan provides for the ultimate disposition of the client’s property, which reduces the likelihood of a costly legal battle over that property. This is particularly significant in cases of blended families or adopted children. Moreover, a properly executed will is the simplest, although not necessarily the best, method to disinherit an heir. A will also permits the client to name an executor to administer the estate, as opposed to relying upon the court to appoint an administrator.

2.  An estate plan that includes a trust avoids probate and may help minimize expenses of the estate

As most lawyers learned in law school, property held in trust avoids probate. Although Nevada’s probate laws are not quite as burdensome and time consuming as some jurisdictions, there are nonetheless very real reasons that a client would want to avoid probate upon the client’s death.

For some clients, the desire for privacy is paramount. While the probate process necessarily makes a decedent’s will public record, including any provisions in the will disinheriting family members or showing other preferences, a trust is generally administered privately.

Additionally, where a decedent has over $100,000 in probate assets, the probate process generally requires court approval for the executor to take most actions with respect to the probate assets, it requires inventories and accountings of the probate estate, and it requires court approval to close the estate. A trust, on the other hand, can generally be administered by the trustee according to the terms of the trust will little to no judicial oversight. Additionally, to the extent that an estate plan includes both a valid financial power of attorney and a trust, such arrangement can help avoid a costly guardianship proceeding if the testator becomes incapacitated.

Some attorneys mistakenly worry about lifetime tax consequences of a revocable trust. Such worries are generally unfounded, however, because revocable trusts are treated as “grantor trusts” and, therefore, are disregarded for income tax purposes.

3.  Many types of assets are unaffected by a testator’s will or trust

A will controls the disposition of probate assets. A trust controls the disposition of assets transferred to the trustee. Many types of assets, however, pass free of probate to listed death beneficiaries upon the death of the accountholder. Life insurance policies, IRAs, 401(k) accounts, and some investment accounts are assets that frequently pass via beneficiary designation. Additionally, joint tenancy interests and community property with right of survivorship interests pass automatically to the surviving owner(s) at the death of the first owner.

As a result, a client who disinherits a child in a will but forgets to remove that same child as beneficiary of the client’s life insurance policy risks accidentally leaving a large lump sum payout to the “disinherited” child. Similarly, a client should sever any joint tenancies held with an otherwise disinherited heir.
With respect to qualified retirement plans, listing a client’s trust as the death beneficiary of an IRA, for example, could cause the IRA to lose the majority of its valuable tax deferment features. An experienced estate planner, however, can create a “conduit-type” or “accumulation-type” see-through trust that will preserve a qualified retirement plan’s tax benefits while still allowing the trust to be a beneficiary of the plan.

A well-conceived estate plan should therefore take into consideration and account for all of a client’s assets, even those that do not pass via probate or via trust.

4.  Estate taxes are not usually a primary consideration in all but the largest of estates

In 2016, the federal estate and gift tax unified credit will be $5.45 million for a United States citizen, and $10.90 million for a married couple (“Unified Credit”). Unless a client’s total net worth approaches these figures (after marking provisions for any past taxable gifts made by the client and after including certain life insurance proceeds), the federal estate tax is usually no longer a major driving factor in many clients’ estate plans. Moreover, since the American Taxpayer Relief Act of 2012 made permanent Unified Credit “portability,” certain traditional trust arrangements, such as the classic “A-B-C” trust structure, are no longer always necessary to ensure that a married couple reaps the entire benefit of their combined Unified Credit. However, additional considerations may need to be considered for federal generation skipping transfer tax purposes.

For most testators of more modest means, income tax considerations may now rule the day. Pursuant to Section 1014 of the Internal Revenue Code, assets of a decedent’s estate get a fair market value basis “step-up” at death, meaning that the beneficiaries receive a tax-free increase in basis. A testator who makes a lifetime gift of the asset, however, does not get a stepped-up basis. In other words, whereas federal gift tax considerations frequently encouraged lifetime gift-giving in the past, for individuals with a current net worth comfortably beneath the Unified Credit amount, holding on to the assets until death is now often the preferred strategy due to the favorable income tax consequences.

5.  A well drafted estate plan can provide powerful asset protection to beneficiaries

While most Nevada attorneys are aware of Nevada’s self-settled asset protection trust laws, Nevada trusts containing effective distribution standards and spendthrift provisions can provide an even greater level of protection to third party trust beneficiaries.

As an example, assume that mom creates a revocable trust and names her daughter as trustee. Upon mom’s death, the trust becomes irrevocable and 100 percent of the trust’s assets are to be held for the benefit of the daughter as a beneficiary. The trustee, who is the daughter, is authorized to make income and principal distributions to herself as beneficiary at the discretion of the trustee for her “health, education, maintenance and support.” In such a scenario, even though the daughter is both the trustee and the beneficiary, the trust assets are largely protected from the daughter’s creditors, assuming all trust formalities are followed, so long as the assets remain in trust.

This scenario also provides formidable protection against a daughter’s future ex-spouse in a divorce proceeding because the assets remain in trust. Parents are also increasingly adding “prenup” clauses to their trusts, which require married children to obtain valid antenuptial or postnuptial agreements before they can receive distributions from a trust.

Ultimately, an estate plan is an imperative life planning tool for all clients, regardless of net worth.

Var Lordahl is of counsel to the Las Vegas office of Dickinson Wright PLLC, whose practice includes estate planning, taxation, nonprofit, and probate law. Mr. Lordahl obtained his J.D. from the University of Illinois and his LL.M. in taxation from New York University.

Matthew Policastro is a member in the Las Vegas office of Dickinson Wright PLLC, whose practice includes estate planning, taxation, nonprofit, and probate law. Mr. Policastro obtained his J.D. from Syracuse University and his LL.M. in taxation from Georgetown University.