Archive for: May, 2015

Generally, a Covenant Not to Compete is “[a]n agreement, generally part of a contract of employment or a contract to sell a business, in which the covenantor agrees for a specific period of time and within a particular area to refrain from competition with the covenantee.”  Black’s Law Dictionary 364 (6th ed. 1990).   The Covenant Not to Compete is known by multiple other names: the “restrictive covenant,” “non-competition agreement,” or as an “agreement not to compete” (hereinafter the “Covenant”).  Griffin Toronjo Pivateau, Putting the Blue Pencil Down: An Argument for Specificity in Noncompete Agreements, 86 Neb. L. Rev. 672, 675 (2008). (more…)

Does Your Business Comply With Nevada’s Workplace Safety Program Laws?

Does Your Business Comply With Nevada’s Workplace Safety Program Laws?

Does your company have a Written Safety Program?

Did you know that a Written Safety Program is required by law?  Every employer in Nevada which has 11 or more employees or which manufactures explosives is required to have a written Safety Program.

Your Written Safety Program (“WSP”) must include:

  • A training program for employees, targeting areas of specific concern or where there have been recurring injuries;
  • If you have more than 25 employees, or manufacture explosives, you must have a safety committee which includes an employee representative.  Your employee representative on the safety committee must be paid “as if that employee were engaged in the employee’s usual work activities” for time spent on the committee;
  • The WSP manual and training must be available in a language and format that is understandable to each of your employees;
  • A statement explaining that the managers, supervisors, and employees are responsible for carrying out the program;
  • An explanation of the methods used to identify, analyze, and control new and existing hazardous conditions; and
  • A method for ensuring that employees comply with the safety rules and work practices.

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FAQ: What You Should Know About Selling Your Business

FAQ: What You Should Know About Selling Your Business

Why are you building a business?

In addition to providing yourself employment together with the flexibility, control and responsibility of business ownership, most people build businesses to sell them at a gain in order to retire or to build another business.

 

How should you document the sale of your business?

There are primary two ways to sell your business. You can sell the assets or you can sell the equity (typically stock, LLC membership interests, or partnership interests).   These are documented quite differently and can have completely different tax benefits to the parties.  Additionally, a question that needs resolved is whether continuing liabilities of the business remain with the seller or become the obligation of buyer (typically documented by an indemnity from seller). (more…)

Under the most recent version of the Federal Rules of Civil Procedure, a party objecting to a request for production of documents may not rely on the hackneyed objection that the request is “not reasonably calculated to lead to the discovery of admissible evidence.”  Under the new standard, the threshold question is whether a request is “relevant to any party’s claim or defense.”  Fed. R. Civ. P. 26(b)(1).

Second, when responding to request for production of documents under Fed. R. Civ. P. 34, an objecting party must state both the specific grounds for the objection but also must state whether any responsive materials are being withheld on the basis of the objection.

I was at a business networking event this morning and was at the welcome desk helping folks get signed in, get a name tag, etc.  A lady turned away from the table and was asked the perfect question–the question we were all there to answer: “Hi, Janice, what kind of work do you do?”  The answer shocked me.  Sadly, I was introduced to the worst elevator speech ever.  She answered, “I am a business owner.  We offer all kinds of goods and services.”  That response drew a well-deserved bewildered look and another question (and chance to redeem herself), “what kinds of goods and services?”  The response–“all kinds.”

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Trademarks & Copyrights – An Intellectual Property Primer

Trademarks & Copyrights – An Intellectual Property Primer

Trademark Defined

A trademark is a word, name, symbol, or device that is used to distinguish one’s goods from others’ goods.  A service mark is a mark that is used in the marketing of services rather than goods. The processes for protecting trademarks and service marks are the same, so for simplicity, we will use the term “mark”.

Marks can be protected in three ways: common law use, federal registration, and state registration.  You do not have to register a mark under the common law; rights in a mark can be established by proof of legitimate use of the mark. However, only limited protection is provided under the common law. (more…)

In Nevada, the elements for a claim of intentional infliction of emotional distress (sometimes called the tort of outrage) are:

  1. Defendant acts with “extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress”;
  2. Plaintiff suffered severe or extreme emotional distress; and
  3. Defendant’s conduct is the actual or proximate cause of plaintiff’s emotional distress.

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The following abstract explains Nevada law on contract damages, and explains how our courts view, determine, and award damages.

EXPECTATION/COMPENSATORY DAMAGES

Expectation/Compensation Damages as the General Goal of Contract Damages.

The general goal of contract damages is to provide compensation for the injured party based on the injured party’s expectation interest.  3 D. Dobbs, Law of Remedies § 12.2(1), at 22 (2d ed. 1993); Restatement (Second) of Contracts § 347cmt. a (2008).  Although there are other remedies available for an injured party in a breach of contract situation, the general and traditional goals of awarding damages in a breach of contract case are aligned with the expectation/compensation remedy. Dobbs, § 12.2(1), at 22. (more…)

Identity Theft is a Crisis of The Modern Era

We are seeing more and more cases of identity theft all the time.  The recent breaches at Home Depot, Target, Anthem, and Sony illustrate the breadth of the problem.. This issue is certainly a topic of national concern. While there are legal means to redress this problem, the best protection is to avoid identity theft altogether.  The following are some suggestions for preventing, or at least limiting the extent of, identity theft. (more…)

In Nevada, the elements for a claim slander per se are:

  1. An alleged defamatory oral statement;
  2. That the plaintiff committed a crime, has contracted a loathsome disease, that a woman is unchaste, or an allegation must be one which would tend to injure the plaintiff or his trade, business, profession, or office; and
  3. Proximate cause and damges.

Nev. Ind. Broad. Corp. v. Allen, 99 Nev. 404, 664 P.2d 337 (Nev. 1983).

 

See elements for other claims at the Nevada Law Library

Should I Sign This Letter of Intent?

Should I Sign This Letter of Intent?

What is a Letter of Intent?

Letters of Intent (“LOI”) can be very useful in setting forth the basic deal points of a transaction, but if they are construed as binding, the parties may get more (or less) than they bargained for.   Surprisingly, it may not be enough to say only once in a LOI that it is not a binding agreement.

In the famous case of Pennzoil v. Texaco, 729 S.W. 2d 768 (1987), the Texas court held that the LOI in that case contained enough terms that the billion plus dollar deal was enforced despite the fact that the LOI specifically said it was non-binding.  The parties were bound to their short form term sheet instead of a deal that contained bargained for and terms with all of the I’s dotted and T’s crossed. (more…)

The following abstract explains contract construction rules and how they are interpreted by Nevada courts.

AMBIGUOUS CONTRACT

  • If contract is ambiguous, then it will be construed against drafter. Dickinson v. State, Dept. of Wildlife, 110 Nev. 934, 877 P.2d 1059 (1994);
  • Any ambiguity in insurance contract must be interpreted against drafting party and in favor of insured. Farmers Ins. Grp. v. Stonik, 110 Nev. 64, 867 P.2d 389 (1994);
  • Where two interpretations of contract are possible, court will prefer interpretation which gives meaning to both provisions rather than interpretation which renders one of the provisions meaningless. Quirrion v. Sherman, 109 Nev. 62, 846 P.2d 1051 (1993);
  • Court may look to circumstances surrounding execution of contract and subsequent acts or declarations of parties to interpret unclear contract provisions. Trans Western Leasing Corp. v. Corrao Constr. Co., Inc., 98 Nev. 445, 652 P.2d 1181 (1982);
  • In construing ambiguous contract, court should place itself as nearly as possible in situation of parties. Barringer v. Gunderson, 81 Nev. 288, 402 P.2d 470 (1965);
  • The rule that the construction given to a contract by parties should carry great weight applies only to ambiguous contracts and not to contracts which are clear, certain and definite in their terms. Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103 (1952);
  • Where language used in contract is equivocal or ambiguous, subsequent acts or declarations of parties showing practical construction put upon words may be resorted to for purpose of ascertaining their intention. Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103 (1952).

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