Confidential business information automatically becomes protected in the law once the statutory definition in NRS 600A.030 is met. There is no requirement that the parties expressly identify the information as a “trade secret”. Should a dispute arise as to the use of the information, determining whether the information used is protected is a matter of applying the statutory definition as a question of fact. Frantz v. Johnson, 116 Nev. 455, 465 n. 4, 999 P.2d 351, 358 n. 4 (2000).
Courts may consider, however, such factors as: (1) the extent to which the information is ascertainable from sources outside the business and the ease with which it can be obtained; (2) whether the information was confidential or secret or was treated as such by the business; and (3) the employee’s knowledge of the confidential information and whether the same was known by competitors. Id., 116 Nev. at 467, 999 P.2d at 358-59. The business is presumed to make reasonable efforts to maintain the secrecy of information that is marked “Confidential” or “Private” in a reasonably noticeable manner. This presumption may only be overcome by clear and convincing evidence that the owner did not take reasonable efforts to maintain the secrecy of the information. NRS 600A.032.
An LLC may be dissolved at any time specified in its articles of organization, upon the occurrence of an event specified in the operating agreement, the affirmative vote of all its members, or upon entry of decree of judicial dissolution. NRS 86.491. In circumstances of judicial dissolution of an LLC, “the District Court may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business of the company in conformity with the articles of organization or operating agreement.” NRS 86.495.
Dissolution requires distribution of an LLC’s assets in the following priority: (1) to creditors, including members who are creditors (does not include contributions); (2) to members in respect to their right to the profits and other compensation by way of income on their distribution; and (3) to members in respect of their contribution of capital. NRS 86.521. “Subject to any statement in the operating agreement, members share in the company’s assets in respect to their claims for capital and in respect to their claims for profit or for compensation by way of income on their contributions, respectively, in proportion to the respective amounts of the claims.” (more…)
Readiness Checklist for Mediation
Counsel should consider discussing the matters below with their client prior to mediating a litigated matter. Doing so will better prepare the client and counsel for the mediation itself and will improve the opportunity for resolution at mediation. For a printer-friendly version of this article, click here.
Explain the Process of Mediation
- What Is Mediation?
- What is the Role of the Mediator?
- What is Your Role at Mediation?
- How Does Mediation Compare to Litigation?
- Why Mediate?
- Who May Attend The Mediation?
- Is Mediation Confidential?
- What Will Happen At The Mediation?
- What Is A Separate Session?
- Can You Speak With Your Attorney Privately Any Time You Want?
- How Long With Mediation Last?
- What Helps To Get The Case Settled?
- Obtain client suggestions for non-monetary solutions, such as future business or payment in kind that may be desirable
- Decide whether an apology to or from the client might be appropriate
Selecting a Mediator
- Discuss the desired education, experience, and background of your mediator. Is subject matter expertise really necessary, or are mediator skills more important?
- Describe how the mediator selection process works (if specified by contract or otherwise)
- Determine whether an evaluative or facilitative mediator would be best for this case
Explain How the Status of the Dispute Influences the Mediation Process
- Has suit/arbitration been filed?
- Is trial/arbitration looming?
- How long will trial/arbitration take to a final resolution?
- Have there been any continuances?
- Is the tribunal likely to grant a request for a continuance from the other side, further delaying the matter?
- Are there pending dispositive motions before the court/arbitrator which create some risk?
- How should that risk inform the client’s decision-making?
- Discuss your honest assessment of chances of success on the pending motion
- Whether mediation is more likely to be successful with the risk hanging over the parties’ heads (creating uncertainty) or after a decision is made (may be too late or the client could spend more money for the court to “punt” on the matter until trial).
- Has the judge/arbitrator made any preliminary decision in the dispute?
- Has the judge/arbitrator indicated an early assessment of either party or their case?
- Either explicitly or implicitly?
- What is the status of discovery?
- How much is completed?
- Are party depositions completed?
- Discuss your honest assessment of the other party as a witness and likely impact they will have as a witness on decision by judge/jury;
- Discuss your honest assessment of your client as a witness and likely impact they will have as a witness on decision by judge/jury;
- What discovery needs to be completed?
- What is the estimated cost of completing discovery?
- Are expert witnesses needed?
- What is the estimated cost of the expert witness through the close of discovery?
- What is the estimated cost of the expert witness through the end of trial?
- Regarding previous settlement discussions:
- What are the impediments to settlement presently?
- How can the client and counsel best seek the assistance of the mediator to overcome those impediments?
The Impact of Opposing Counsel on the Case and the Mediation
- Discuss how opposing counsel presents in front of a judge/arbitrator/jury and the likely impact it may have on a decision
- Discuss how a mediator may assist the parties in dealing with opposing counsel
- Discuss the opposing counsel’s likely approach to the mediation
Settlement Authority at Mediation
- Determine your recommendation for a favorable settlement range (please do not discuss a client’s “bottom line” unless you want the client to “anchor” on that number and exhibit inflexibility to move beyond it at mediation)
- Discuss the pros and cons of settlement at certain dollar ranges
- What is the likely result for the client on its best day should the matter go to trial?
- What is the likely result for the client on its worst day should the matter go to trial?
- What is the likely result for the client on an average day should the matter go to trial?
Anticipated Costs of Litigation or Arbitration
- What is the likely cost to litigate to resolution (deposition costs, expert fees, attorney fees, etc?)
- The pre-trial costs
- The cost to try the case
- How much has the client spent to date on the litigation
- Is there a right to appeal an ultimate resolution by the court/arbitrator?
- Whether an appeal is available only at the end of the case
- What is the likelihood of either party to appeal should they lose at trial?
- An estimated of the cost to appeal
- An estimated time to complete appeal
- Whether the resolution of the appeal is likely to result in re-trying the matter or a portion of it
- Cost and Fee-shifting:
- Are the parties subject to a fee-shifting contractual provision, statute, or rule making an award of fees likely or possible
- Are litigation costs are recoverable from the other side
- The extent to which expert fees are recoverable (REMINDER: NRS 18.005 allows only “$1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”)
- How long it may take for the court or arbitrator to resolve the case
What Are the Chances of Success at Trial?
- What is the attorney’s honest assessment of the strength of the plaintiff’s claim, considering both liability and damages?
- If you obtain a judgment, does the defendant have assets available for collection?
- What is the attorney’s honest assessment of the strength of the opposing case?
- The likelihood that the trial will bring adverse publicity
- Discuss the risks of an adverse judgment, including:
- The availability of adequate liability insurance
- The availability of adequate funds or assets to satisfy a judgment
- Whether a judgment jeopardizes the survival of the client’s business
Jay Young is a mediator in Las Vegas, Nevada.