The content on this page was originally published in the “Sports & Entertainment Law” issue of COMMUNIQUÉ* (May 2020), the official publication of the lark County Bar Association. This issue features content written by members of Nevada’s legal community including:
- “Hang in There!”—Nevada’s Gaming and Hospitality Industry Faces the COVID-19 Crisis” By Jennifer J. Gaynor, Esq.
- “A Victory for Street Artists” By Caleb L. Green, Esq.
- “Special Report: Practicing Law During the COVID-19 Pandemic” By Alia A. Najjar, MD, Esq.
- “Las Vegas Justice Court’s Response to the COVID-19 Crisis” By Chief Judge Suzan Baucum
- “Social Distancing and Pro Bono” By Noah Malgeri, Esq.
- CCBA President’s Message: Learning to Pivot When Plans Go Awry” By Mariteresa Rivera-Rogers, Esq.
- “Nevada Appellate Court Summaries from 4-1-20” by Joe Tommasino
Additional content may be found in the full color issue of the publication (print and PDF versions), including:
- Bar Activities
- Court News
- The Marketplace
Special thanks to the advertisers and sponsors listed in Communiqué (May 2020):
- Advanced Resolution Management
- Aldrich Law Firm
- Ara Shirinian Mediation
- Bailey Kennedy, LLP
- Bank of Nevada
- Collinson Daehnke Inlow & Greco
- Dickinson Wright PLLC
- Esther Rodriguez
- Ghandi Deeter Blackham
- Holley Driggs
- Jason D. Mills & Associates
- Jason P. Stoffel
- Koeller Nebeker Carlson & Haluck LLP
- Las Vegas Legal Video
- Lawrence C. Hill & Associates
- Legal Wings, Inc.
- Lewis Roca Rothgerber Christie LLP
- Maricar “Rica” Andrade
- McDonald Carano
- Nevada Digital Forensics
- Nevada Legal Services
- Phil Aurbach
- Portraits to You
- Reisman Sorokac
- Roberts Stoffel Family Law Group
- State Bar of Nevada
- Welt Law
“Hang in There!”—Nevada’s Gaming and Hospitality Industry Faces the COVID-19 Crisis
By Jennifer J. Gaynor, Esq.
We’ve all seen the posters and memes with the cute little orange kitten, hanging on to a screen door with all of its might, with the inspirational message “Hang in There!” That kitten could well represent the gaming and hospitality industry today, given the unprecedented COVID-19 global pandemic and the associated shutdowns of casinos and other gaming properties across not only Nevada, but the world.
The gaming and hospitality industry, much like the travel industry, has been hit especially hard by the business closures mandated by the COVID-19 pandemic. According to mid-March estimates from the American Gaming Association, nearly 616,000 casino gaming and resort employees nationally are out of work due to casino closures, including some 206,000 workers in Nevada. As noted by US senator from Nevada, Catherine Cortez Masto, during discussions about the COVID-19 economic recovery package, “[Nevada’s] hospitality industry generates nearly $68 billion annually and supports more than 450,000 jobs across the state.”
In the short term, the industry is scrambling to simply sustain itself through the crisis: industry representatives and elected officials in the areas that are hardest-hit, including Nevada, have reached out to the federal government to get disaster relief for the gaming and hospitality industry. These efforts are a work in progress.
To the dismay of the gaming industry, the Paycheck Protection Program, the loan program administered by the Small Business Administration as part of the Coronavirus Aid, Relief and Economic Security (CARES) Act to help small businesses weather the COVID-19 shutdowns, has language that means it cannot be utilized by small businesses that make more than one-third of their revenue from gaming. Nevada’s representatives and the gaming industry are working to correct this.
What about the long term? Although it is difficult to look to the future when the future is so uncertain, it is clear that the industry, and Las Vegas in particular, is still gambling on a rosier future. All it takes is a walk down the eerily silent Las Vegas Strip to see that many of the brick and mortar construction projects are continuing to move forward, such as the expanded Las Vegas Convention Center, Resorts World, the new Virgin casino renovations, and, of course, the Las Vegas Raiders stadium project at the south end of the strip.
Perhaps more importantly, we’ve seen several of southern Nevada’s largest gaming and casino companies step up on behalf of their workers during this crisis. For example, Joe Asher, the CEO for William Hill’s US operations, created a foundation to help furloughed William Hill employees and is donating his salary to it. Similarly, a number of Wynn Resorts executives and board members are giving up at least a third of their salaries in exchange for stock as a way to free up much-needed cash during the crisis and to demonstrate that they are invested in the company’s future. Wynn Resorts also announced at the time of the March shutdowns that it plans to keep paying employees for 30 days at Wynn Las Vegas and Encore, and similar plans to continue paying employees (at least for some period of time) during the shutdown have been announced from companies including Sands Hotel & Casino, Station Casinos, Penn National Gaming, and The Cosmopolitan of Las Vegas.
Although it is difficult to predict what the long-term impact of these events will be, it is guaranteed that the industry will look somewhat different when we come out of this crisis. It is likely that companies will look to diversify into online gaming to a greater extent, will speed up movement to cash-free gaming alternatives as well as hands-free gaming options, and will increase social distancing and sanitization efforts on casino floors. My hope, however, is that we will also see our gaming and hospitality industry continue to step up to protect its workers and their future, and that all Nevadans will come together (literally, if not physically) to forge a bright post-pandemic future. We’ve seen Las Vegas come together following tragedy in the past, and there is little doubt that we will emerge from this #VegasStrong.
Jennifer J. Gaynor is a member partner at the Dickinson Wright’s Las Vegas office. She represents clients before the Nevada Legislature in Carson City and practices before various professional and licensing boards and state and local tax authorities, and represents clients on matters involving First Amendment law, public records and open meeting law, gaming law and regulatory agency actions.
A Victory for Street Artists
By Caleb L. Green, Esq.
In response to the widespread transmission of COVID-19, the state of Nevada has taken several measures to reduce the spread of the virus. This includes Governor Sisolak’s directive that temporarily banned non-essential businesses. As a result, several businesses throughout southern Nevada have ceased operation, boarding up their businesses. However, with the proper consent, street artists have adorned many of these boarded businesses with artistic murals and paintings to deter crime and uplift spirits within the Las Vegas community.
The consensual application of artistic works to physical buildings illuminates an interesting legal inquiry regarding the crossover of intellectual property law and real property. The novel case of Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020), as amended (Feb. 21, 2020), provides guidance on how courts balance the intellectual property interests of an artist against the property rights of a business owner.
Facts & Background
In 2002, Gerald Wolkoff, the owner of several New York warehouses, enlisted Jonathan Cohen, a renowned artist, to turn his warehouses into an exhibition space for artists. Under Cohen’s leadership, this artist space—known as 5Pointsz—evolved into the epicenter for street art, attracting thousands of visitors and extensive media coverage. In 2013, Cohen learned that Wolkoff sought to demolish the 5Pointz site and build luxury apartments in its place. Wolkoff deployed a group of workers to whitewash and destroy 49 of the existing artworks. Cohen and his host of artists, whose artworks were ultimately destroyed, sued under the Visual Artists Rights Act (VARA) and were awarded $6.75 million in statutory damages. On February 20, 2020, the Court of Appeals for the Second Circuit affirmed the judgment.
What is VARA?
VARA is an amendment to the Copyright Act that protects a limited set of an artist’s moral rights, specifically: (1) the right of integrity and (2) the right of attribution. An artist’s right of integrity includes the right to prevent modification, mutilation, distortion, or destruction of the artist’s work. While rights of attribution include an artist’s right to be recognized as the author of his or her work, to publish anonymously, and to prevent his or her work from being attributed to other artists, the statutory coverage of VARA is restricted to specific categories of fine art, namely, paintings, drawings, and sculptures.
Castillo is a victory for artists’ intellectual property and moral rights. Below are a few takeaways from this landmark case:
1. Street art may be protectable under VARA and property owners should take caution before destroying or altering it.
The Castillo court affirmed that the artists’ street art adorning Wolkoff’s building constituted art of “recognized stature”—a basic requirement for invoking VARA protection. The Second Circuit provided a clear definition of VARA protected works as those of “high quality” that have been acknowledged as such by the relevant community. The court went on to acknowledge that evidence from art historians, art critics, curators, and other experts supporting the quality of a work could demonstrate street art as one of recognized stature warranting moral-right protections under VARA. The Castillo court also noted that the temporary lifespan of street art did not bar the artists’ VARA claim against Wolkoff.
2. Property owners can limit their liability under VARA by taking proper measures.
The Castillo court noted that Wolkoff could have mitigated his liability by either: (1) entering into a written agreement with the artists prior to installation of their creative works, or (2) providing 90-day notice and giving artists an opportunity to preserve their artistic works before destruction of the artworks or property, pursuant to VARA.
3. Artists may obtain a more favorable judgment from a bench trial proceeding than a jury trial.
Castillo is a unique case because both the jury and judge operated as finders of fact. Towards the end of the trial, the parties stipulated to waiving a jury trial. Accordingly, the jury operated as an advisory jury and both the jury and judge provided findings of fact. Ultimately, the judge’s findings were more favorable to the plaintiff than the jury’s findings. Of the 45 destroyed works, the advisory jury found VARA violations for only 36 of the works, whereas the court found violations for 45.
Caleb L. Green is a William S. Boyd School of Law graduate, an intellectual property attorney at Dickinson Wright PLLC, and the Corporate Sponsorship and Fundraising Chair of the Las Vegas Chapter of the National Bar Association.
Special Report: Practicing Law During the COVID-19 Pandemic
By Alia A. Najjar, MD, , Esq.
Throughout history, whether bacterial or viral and however spread, plagues have been with us. Until recently, most of us have not experienced the devastation caused by such a plague. COVID-19 has certainly impacted how we all conduct business, as well as how we live our lives. As attorneys, however, we must continue to stand ready to assist our clients, colleagues, and society in general to weather this terrifying storm. While it would be impossible to predict the full impact that this virus will have on our practices, those who practice before the courts in Clark County must be mindful of its impact on the courts.
Nevada state courts
The Eighth Judicial District Court issued several orders in response to the state of emergency. While is not clear whether such orders will be in effect when this article is published, some of the changes will likely continue to impact cases even after these orders have been lifted.
All scheduled non-essential district court hearings are to be conducted via telephonic or video-conferencing; decided by the papers on file; or rescheduled unless otherwise directed by the judge during the pendency of the order, which is to be reviewed at 30-day intervals. During the pendency of the order, all proposed orders, stipulations and orders, requests for orders shortening time, and other documents submitted to the court for judicial signature must be submitted electronically to the appropriate department’s email address. Litigants without the ability to electronically file documents may mail such documents as stated in Administrative Order 20-10. All other litigants submitting or filing documents must do so electronically. Further, no courtesy copies are to be sent to the court. Proposed orders and other documents submitted to the court were to be done so electronically or by mail as required. Original signature requirements, except where notary services are required, are suspended. The court also provides a process for sealing documents and requires the use of the code “TSPCA” on the document to be sealed.
The court also noted that the statute of limitations, requests for a trial de novo, and the expert affidavit requirement for medical malpractice matters could not be waived by the court. On March 31, 2020 and as amended on April 1, 2020, however, the governor signed an emergency directive stating that “Any specific time limit set by state statute or regulation for the commencement of any legal action is hereby tolled from the date of this Directive until 30 days from the date the state of emergency declared on March 12, 2020 is terminated.” http://gov.nv.gov/News/Emergency_Orders/2020/2020-04-01_-_COVID-19_Declaration_of_Emergency_Directive_009_(Revised)/. Thus, the deadlines for filing such actions, including medical malpractice actions, were tolled.
Civil and criminal jury trials scheduled during the pendency of the order are suspended. Further, the order stays jury and bench trials in civil cases for purposes of NRCP 41(e). Due to difficulties that will likely persist after the administrative order is lifted, courts are likely to more readily grant further trial continuances where difficulties persist, such as witness availability. The court recognized that service of process may be more difficult, and thus properly documented service issues related to COVID-19 are considered good cause for extending the time for service. However, motions to extend service of process must still be filed prior to the expiration of the time to serve. The court also stayed the deadlines for initial disclosures, expert disclosures, supplementing discovery, serving and responding to written discovery, pre-trial disclosures, and filing case conference reports for 30 days.
Motions to extend service of process must be filed prior to expiration of time to serve and properly documented service issues related to COVID-19 is considered good cause. All deadlines for initial disclosures, expert disclosures, supplementing discovery, serving and responding to written discovery, pre-trial disclosures, and filing case conference reports were stayed for 30 days. Though some deadlines were stayed for this 30 day period, the cases themselves are not stayed, and thus parties may still file motions and should prepare for moving forward with cases once stays on deadlines expire.
The court also ordered that all scheduled hearings, conferences, or other meetings assigned to the court ADR program were to be conducted via video or telephone, decided on the papers, or rescheduled. Short jury and bench trials were suspended for 30 days to be rescheduled. For the court annexed arbitration program, the one-year deadline from the date of arbitrator appointment to the date of the hearing pursuant to NAR 12(B) is extended. However, this only applies to cases where the deadline expired between March 17, 2020 and May 17, 2020.
Judicial settlement conferences scheduled during the pendency of the order were vacated. Parties should confer and submit five agreeable dates after June 1, 2020 to Department 30 to be rescheduled. If scheduled through the Senior Judge Program, parties should contact the program directly.
Time to respond to offers of judgment served on or after March 13, 2020 were suspended during the pendency of the order, with parties having 10 days to respond to pending offers once the order is lifted. However, parties are free to accept while the order is in effect. For more information regarding these and other changes, see http://www.clarkcountycourts.us/general/court-rules-and-administrative-orders/#Administrative%20Orders.
Similar to the state court, the federal court has issued its own set of emergency provisions. On March 16, 2020, the federal court continued all civil and criminal trials and associated deadlines until April 10, 2020 pending further court order; postponed all non-case related events scheduled in the courthouse (such as Inn of Court) pending further court order; and excluded the time period of the continuances pursuant to this order under the Speedy Trial Act with regard to criminal matters. Subsequently, on April 9, 2020, the court amended the order, noting that the court had determined that jury trials must be further postponed, and that each presiding judge was to address any needed continuance of trial in their individual cases.
On March 20, 2020, the federal court temporarily closed the Clerk’s Office (please note that this does not impact filings and all deadlines remain in effect until otherwise ordered by the presiding judge). Filings are processed via electronic filing and either mail or delivery to drop boxes in the lobby of the courthouses. Mailed filings are deemed filing on the date indicated on the postage stamp. Manual filings may be served on opposing parties without securing a file stamped copy. Payment by check or money order are accepted by mail or drop box. No cash payments during this time.
Courts will attempt to conduct hearings by video conference or telephone (with the defendant’s consent in criminal cases) and the courtroom will be closed. Members of the public can call in to listen to hearings. The order does not impact motions that can be resolved without court appearances. This order was to be amended or vacated no later than April 30, 2020, and at the time of this writing, it was not clear whether this was likely to be further extended.
On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) authorizing the use of video and telephone conferencing under certain circumstances and with the consent of the defendant for various criminal hearings during the course of the COVID-19 emergency. See CARES Act, H.R. 748, Public Law No. 116-136. Subsequently, on March 30, 2020, the federal court issued Temporary General Order 2020-05, which authorized the use of video or telephone conferencing (if video conferencing is not available) for certain criminal proceedings as provided in the CARES Act. Pursuant to Section 15002(b)(3) of the CARES Act, this authorization will remain in effect for 90 days unless terminated earlier. If emergency conditions persist 90 days from the entry of the court’s order, the court will review and determine whether to extend. For more information regarding federal court changes, see https://www.nvd.uscourts.gov/court-information/rules-and-orders/general-orders/.
Again, as attorneys, we must remain vigilant in ensuring our clients’ rights are protected, but we must remember to be patient and courteous with one another during this stressful and everchanging time. We are all in this together. For additional guidance and helpful resources for attorneys, see https://www.nvbar.org/covid-19-update/.
Las Vegas Justice Court’s Response to the COVID-19 Crisis
By Chief Judge Suzan Baucum
The Las Vegas Justice Court has implemented drastic changes in order to comply with recent directives for social distancing.
First, the following schedule is being used temporarily for criminal matters. [See right for schedule.]
Second, all criminal out-of-custody hearings (other than preliminary hearings) are continued for at least 60 days based upon departmental calendars. Attorneys should communicate with the court via e-mail (preferred) or phone to obtain new court dates. A listing of all e-mails and phone numbers appears at http://www.lasvegasjusticecourt.us/.
Third, for the time being, a person will be released on his or her own recognizance, and given a return court date for no sooner than 60 days, if:
- The person is arrested on a misdemeanor bench warrant, other than a bench warrant for battery constituting domestic violence or DUI; or
- The person is arrested on a civil bench warrant.
Fourth, all traffic pre-trial matters are suspended for at least 60 days.
Fifth, certain “essential” civil hearings will be conducted through in-person appearances, although appearance by alternative means under Supreme Court Rules is encouraged when possible. Examples of “essential” hearings include protection orders (TPO’s), unlawful towing, and objections to claims of exemption. All currently scheduled “non-essential” civil hearings will be conducted by video or telephone, decided on the papers, or rescheduled unless otherwise ordered. Small-claims hearings and trials are considered “non-essential.”
Sixth, all jury trials (civil and criminal) are being rescheduled.
Seventh, the issuance of defaults is now suspended, but the court is processing default-judgment applications.
Eighth, all evictions have been suspended unless a tenant poses a danger, is committing a crime, or is damaging the property.
Ninth, the issuance of all writs of execution has been suspended.
Finally, the court has dedicated phone lines as follows:
- Criminal: (702) 671-3201
- Civil: (702) 671-3478
- Traffic: (702) 671-3444
Please use these numbers to reschedule court appearances, arrange appearances by alternative means, or provide other necessary information to the court during this difficult time.
Social Distancing and Pro Bono
By Noah Malgeri, Esq.
With the state, country, and much of the world on lock-down, so much of the routine activity of our lives has come to a standstill. Elective medical procedures are being postponed, we can’t go to the gym, and we are all finally learning how to use that webinar app to communicate with our colleagues. Some are already speculating that “things will never be the same” after we get through the current waning public health and burgeoning economic crises. Through it all, we are being cautioned to stay away from each other.
One thing that has not changed, however, is that Clark County children, from newborns to teens, continue to flow into the foster care system due to abuse and neglect. One can scarcely imagine the level of confusion or even terror experienced by young children trying to make sense of the rapid changes they observe in their world due to the pandemic, and the anxiety they intuit on the faces of the adults around them and on television, compounded by being taken away from all familiar circumstances. Soon additional stress, in the form of judicial proceedings to find them a permanent and safe home, will arrive. The social distancing for them is multifaceted and traumatic.
Over 150 such children, currently in foster care, patiently await volunteer attorneys to help them navigate this intimidating process. So many of our amazing colleagues here in Clark County have already answered the call to come to the aid of these children. You too can become a part of this important work. The time commitment is low, hearings are currently remote, the training takes the form of a free-two hour CLE you can join online, and the impact is tremendous. Please use your skills in this time to bring reassurance and comfort to a scared child right now. Contact Noah Malgeri, Director of the Pro Bono Project at Legal Aid Center of Southern Nevada, Inc., at firstname.lastname@example.org to learn how to get involved.
Noah Malgeri, Esq. is the Pro Bono Director at the Legal Aid Center of Southern Nevada. Before coming to Legal Aid Center of Southern Nevada, Mr. Malgeri worked as a patent litigation attorney at three large, national law firms. Prior to private practice, Mr. Malgeri served as a Captain in the U.S. Army JAG Corps. In that capacity, he worked as an international and operational law advisor and criminal prosecutor for U.S. Army, V Corps in Heidelberg, Germany and Iraq. Mr. Malgeri helped to plan and execute the opening stages of Operation Iraqi Freedom, for which service he was awarded the Bronze Star Medal.
Communiqué is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.
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