The articles, white papers and blog posts in this section include those written by our attorneys and articles for which our attorneys were interviewed.
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- Utah Employment Law LetterApril 2014
Kirton McConkie employment litigation attorney Brinton Wilkins writes about a U.S. District Court for the District of Utah case where summary judgment was granted in favor of a county in a sexual harassment case filed by a court bailiff. The court found that given the law at issue—Title VII of the Civil Rights Act of 1964—and the evidence the parties presented, there was no way the county could lose. Thus, the court did not hold a trial. The bailiff, however, appealed that decision, arguing that she found evidence that justified a trial. Read the article to find out more.
- Utah Employment Law LetterMarch 2014
Kirton McConkie employment litigation attorney Ryan Frazier discusses whether employment decisions should be based on objective or subjective factors. While purely subjective factors in employment decisions can be risky, a recent decision from the U.S. 10th Circuit Court of Appeals shows courts will not automatically infer unlawful discrimination based solely on subjective factors in employment decisions.
- Utah Employment Law LetterFebruary 2014
Kirton McConkie employment litigation lawyer Ryan Frazier outlines the possible impact of the U.S. 10th Circuit Court of Appeals upcoming ruling on same-sex marriage will have on the application of several employment laws and the affect it will have on the administration of employee benefits. This article analyzes the implications of the ruling in the employment context.
- Utah BusinessFebruary 2014
Kirton McConkie franchise attorney Lee Wright cautions business owners to thoroughly understand a business model before launching into expansion to avoid . What determines whether a business is a franchise or business opportunity depends on the nature of the relationship, not what the owner calls it. Avoid penalties and fines by setting your business up correctly.
- Technology Transfer TacticsJanuary 2014
Kirton McConkie intellectual property attorney Ken Horton comments in this article on the potential risk to reputation universities face when deciding to commercialize and license intellectual property with patent assertion entities (PAE). See page 6 of the article.
- January 2014
Kirton McConkie employment litigation attorney Ryan Frazier discusses the potential for conflict between employee or applicant religious beliefs with workplace rules and employment practices. Find out more about a case before the U.S. 10th Circuit Court of Appeals (whose rulings apply to Utah employers).
- Utah Employment Law LetterDecember 2013
Kirton McConkie employment litigation lawyer Ryan Frazier addresses whether an employer’s liability for harassment under Title VII of the Civil Rights Act of 1964 may depend on whether the alleged harasser is a supervisor or just another coworker.
- Utah BusinessDecember 2013
Kirton McConkie immigration attorneys Elaine Young and Jake Muklewicz address the errors some employers make by failing to meet the terms of the E-Verify Memorandum of Understanding or following the procedures in the various E-Verify and I-9 manuals.
- Utah Employment Law LetterNovember 2013
Kirton McConkie employment and litigation lawyer Brinton Wilkins addresses the role perception plays in discrimination claims. Read on to see how employers can find a measure of protection in their honestly held perceptions.
- CharterologyFall 2013
Kirton McConkie real estate and charter school attorney Joel Wright outlines Utah's Procurement Code as it pertains to charter schools. He addresses what school administrators need to know for various spending levels.
- Utah Employment Law LetterOctober 2013
Kirton McConkie employment litigation lawyer Brinton Wilkins discusses a case where a municipal police officer from Orem, Utah learned the hard way that even an understandable decision can mean termination. Read on to see how even municipal laws can play an important role in making sure employees toe the line.
- Utah Employment Law LetterSeptember 2013
Kirton McConkie employment attorney Lance Rich discusses a case involving the claims of a Hispanic female feather tester who alleged her employer violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) when, among other things, her hours were reduced and she was eventually terminated as part of a reduction in force (RIF).
- September 2013
Kirton McConkie estate planning attorney Geoff Germane discusses how the domestic Asset Protection Trust makes Utah attractive for asset protection and enhancement options like few other jurisdictions in the country. Most families and business owners want to enjoy their assets, but also want to control them, decide who else gets to enjoy them, protect them from creditors and predators, save them from as many taxes as possible, and even pass them along in some form or another to the next generation(s). Germane sums the new law up as having your cake and eating it, too.
- JAMS Dispute Resolution AlertSummer 2013
Kirton McConkie technology attorney R. Shawn Gunnarson is quoted in this article about the potential onslaught of domain name disputes as ICANN prepares to let 500 new top level domains go live.
- Utah Employment Law LetterAugust 2013
When originally passed, Title VII of the Civil Rights Act of 1964 did not prohibit pregnancy-related discrimination. This changed when the Pregnancy Discrimination Act (PDA) was enacted as an amendment to Title VII in 1978. Unfortunately, female employees still struggle with perceived and real pregnancy discrimination. The issue becomes complicated when the employee works in a position with physical requirements that may be unrealistic for a pregnant woman—for example, as a police officer. Read the article to see how The City of Chandler, Oklahoma, addressed issues involving a pregnant police officer.
- The Salt Lake TribuneJuly 30, 2013
Kirton McConkie adoption attorney David Hardy was interviewed for this article on families who are turning to friends and family through gift boutiques, online and silent auctions, yard sales and donations to fund the initial cost of adoption. Hardy commented that relying on others to help pay costs raises a red flag.
- Utah Employment Law LetterJuly 2013
According to Murphy’s Law, anything that can go wrong will go wrong. There are ways employers can blunt the force of Murphy’s Law by understanding their legal obligations. The article addresses how one employer made sure its actions complied with the law and avoided the pain caused by Murphy’s Law.
- The Salt Lake TribuneJune 26, 2013
Kirton McConkie adoption lawyer Larry Jenkins was interviewed for this article on the recent Supreme Court ruling related to the Indian Child Welfare Act (ICWA). He hails the decision as a "common sense approach" that "really is looking out for the child."
- Deseret NewsJune 25, 2013
Kirton McConkie adoption attorney Larry Jenkins was interviewed for this article on the recent Supreme Court case, which has been remanded to the lower court to determine if a child put up for adoption by the biological belongs with the white couple that had planned to adopt her or her biological father, who argued his rights under the Indian Child Welfare Act (ICWA).
- Deseret NewsJune 19, 2013
Kirton McConkie adoption attorney David Hardy was interviewed for this article about the possibility of a putative registry to establish paternity so biological fathers who intend to help support and raise a child can preserve their rights.
- The Utah Employment Law LetterJune 2013
The case discussed in this article helps illustrate when an employee may have a justifiable belief that he has been the subject of race discrimination.
- May 2013
Utah lawmakers recently passed the Internet Employment Privacy Act (IEPA) prohibiting employers from requiring employees or job applicants to disclose their passwords or user names for personal social media accounts. Employment attorney Darryl Lee outlines IEPA requirements, exceptions and violations.
- A Kirton McConkie publicationMay 1, 2013
Kirton McConkie's adoption law group outlines 12 things to consider in private or independent adoptions in Utah.
- Media One Law Day supplement in the Salt Lake TribuneApril 28, 2013
Kirton McConkie employment and business litigation attorney Ryan Frazier was interviewed for the special Law Day 2013 supplement.
- Inside CounselApril 26, 2013
Information security programs are mandatory for certain industries and most government agencies. It can bewilder in-house counsel to navigate the technical and administrative requirements. One framework is gaining acceptance as a best practice for information security programs: the SANS Institute’s Top 20 Critical Controls.
- Estate PlanningApril 2013
When "FLP" signifies "falling out of love with partnership," families should weigh their options and determine the most favorable approach to implement. Estate Planning lawyer Geoff Germane addresses the solutions families should consider when disenchanted with their family limited liability companies.
- Inside CounselApril 12, 2013
The transition from outside to inside counsel (or compliance officer) can be far more difficult than throwing out the billable hour. Focusing on three ingredients—people, process and technology—helps in-house counsel solve business problems in the corporate environment.
- Utah Employment Law LetterApril 2013
A female U.S. Forest Service (USFS) employee applied for a management position, but was not selected though she was arguably the most qualified applicant. Instead, the USFS broadened its search, eventually awarding the job to a man with different qualifications than the female USFS employee. Read on to find out whether a court allowed her claims to proceed to trial.
The Utah Employment Law Letter is edited by Kirton McConkie employment lawyer Darryl Lee and written by various firm employment and immigration attorneys.
- Inside CounselMarch 29, 2013
The introduction of a privacy program within an organization can sometimes cause tension with the information security function. These tensions arise out of the common goals and purposes shared between the two groups. This article addresses how in-house counsel can provide leadership to executives and prove instrumental in harmonizing the privacy and security programs within their organizations.
- Utah Valley Healthcare FoundationMarch 2013
Kirton McConkie Estate Planning attorney Geoff Germane outlines a few of the changes from the American Taxpayer Relief Act of 2012 and what the changes mean to taxpayers.
- The Columbia Science and Technology Law ReviewMarch 23, 2013
Internet governance has long been troubled by an unresolved problem. Its dominant organization, the Internet Corporation for Assigned Numbers (ICANN), suffers from inadequate accountability. The Board’s unconstrained powers present the issue of power beyond right, the quintessential problem for constitutional law. This article proposes to resolve ICANN’s longstanding predicament by describing a strategy to strengthen its accountability.
- Law360March 20, 2013
Kirton McConkie intellectual property lawyer Evan Witt was quoted in this Law360 roundup about the U.S. Supreme Court ruling on Kirtsaeng v. John Wiley & Sons Inc. The Supreme Court found that the Copyright Act's first-sale doctrine was not limited by geography and applied equally to goods made both in the U.S. and abroad, reversing a victory for John Wiley & Sons Inc. in the textbook publisher's copyright suit against a man who resold foreign editions of its books.
- Law360March 20, 2013
Kirton McConkie intellectual property attorney Dax Anderson comments on the U.S. Supreme Court's reversal of publisher John Wiley & Sons Inc.'s infringement case involving the Copyright Act's first-sale doctrine.
- Law360March 18, 2013
In what is turning out to be the year of immigration, Republicans and Democrats are finally coming to consensus on many of the major aspects of comprehensive immigration reform. Kirton McConkie immigration and tax lawyer Elaine Young helps employers understand how reform affects them and what changes may be on the horizon.
- Inside CounselMarch 15, 2013
Can we reasonably expect the custodians of our data to take the steps necessary to safeguard our information? Or is that hope a pipe dream? In this article, the authors walk in-house counsel through the current reality of data protection to help companies see the upside of protecting consumers’ personal data.
- TechHiveMarch 11, 2013
Kirton McConkie technology lawyer R. Shawn Gunnarson is quoted in this article about Amazon's domain name applications under the new ICANN gTLD expansion. Authors and other book sellers weigh in about why Amazon should not be allowed to own .read, .book and .author. Gunnarson comments that Amazon submitted its applications according to ICANN rules.
- ALM Law JournalMarch 2013
Kirton McConkie technology lawyer Dave Shaw cautions companies of all sizes to be more diligent with privacy policies. California has started enforcing its online privacy law and the Federal Trade Commission (FTC) is making changes to federal
regulations regarding the online use of information from children, closer scrutiny than ever is being paid to this issue. With more scrutiny comes hefty fines and legal implications. This article examines compliance issues and what companies must do to ensure they are not in violation.
- Utah Employment Law LetterMarch 2013
Kirton McConkie employment and litigation attorney Darryl Lee cautions employers to review and revise handbook and related policies and procedures to ensure they maintain strong at-will-employment relationships with employees.
- MacNewsWorldMarch 1, 2013
Kirton McConkie intellectual property attorney Ken Horton was interviewed by MacNewsWorld on Apple's recent victory over Samsung in a Japanese district court allowing the company to continue to sell iPads and iPhones in Japan.
- ForbesMarch 1, 2013
Kirton McConkie business and tax attorney Matthew Wride was interviewed by Forbes about possible future tax consequences of crowdfunding.
- Inside CounselMarch 1, 2013
The threat to corporate information involves not only profits but also national security, and Washington is worried. Both houses of Congress perennially propose legislation to improve cybersecurity in the private sector. Attempts at legislation have failed, most recently in 2012. Now, the Obama administration is taking action. Kirton McConkie business and litigation attorney Matthew Richards co-authored this article.
- Inside CounselFebruary 15, 2013
Kirton McConkie business and litigation attorney Matthew Richards co-authored this article about the growing concern over publicized data breaches, government sanctions against offending organizations, high-profile international policy disputes and myriad regulations. Learn what in-house counsel can do while working with their chief information security officers (CISO) to help mitigate concerns.
- Utah Employment Law LetterFebruary 2013
Kirton McConkie employment and litigation lawyer Lance Rich addresses questions related to the Family and Medical Leave (FMLA) and Americans with Disabilities Act (ADA): Does an employee engage in protected activity under FMLA by notifying his employer of his plans to take FMLA leave, or must he actually take FMLA leave? If an employer accommodates an employee’s disability for a substantial period of time, does the Americans with Disabilities Act (ADA) prevent it from later firing him when he can’t perform the essential functions of his job? How can employers show that the ability to perform certain tasks is essential for a given job?
- Inside CounselFebruary 2, 2013
In 1984, the Supreme Court dealt with the question of whether agencies have the power to construe the statutes they are assigned to administer. Now before the Supreme Court in City of Arlington v. FCC is the question of whether or not similar rules apply when an agency is determining the scope of its own power and jurisdiction.
- HR Hero LineJanuary 29, 2013
Kirton McConkie immigration lawyer Elaine Young was interviewed for this article. She comments on the advantages employers may see if the plan is passed as well as the learning curve and administrative delays if the employment status verification system, E-Verify, becomes mandatory. The proposal, she says, emphasizes enforcement of immigration laws, so employers should continue to perform I-9 self-audits.
- Inside CounselJanuary 23, 2013
Congress passed the American Inventors Protection Act (AIPA), which provided, among other provisions, that U.S. patent applications would be published 18 months after filing. In this article, Metcalf addresses issues that have arisen over the years.
- Bloomberg's Patent, Trademark & Copyright JournalJanuary 2013
Kirton McConkie intellectual property attorney Ken Horton outlines additional insights from the the U.S. Court of Appeals for the Federal Circuit regarding when a document posted online qualifies as a printed publication and, therefore, as prior art that can be cited against a patent or patent application under 35 U.S.C. § 102(b).
- The Project to Restore America newsletterJanuary 10, 2013
Kirton McConkie regulatory lawyer Craig Metcalf writes about how Americans complain the government in Washington is gridlocked and can't get anything done. He contends a lot does get done, just in a different way from what most people would expect or like.
- Inside CounselJanuary 9, 2013
Kirton McConkie regulatory lawyer Craig Metcalf addresses the case of Federal Communications Commission (FCC) v. Fox Televisions Stations and the FCC's use of vague policy statements on indecency issues.
- Utah Employment Law Letter (January)January 2013
The holiday rush is over and it’s time to make annual New Year’s resolutions relating to good employment practices. This article gives 11 helpful tips for improved human resources management.
- Inside CounselDecember 26, 2012
When regulation is imposed there is almost always a corresponding discussion of its cost. Regulation, almost by definition, detracts from economic production and therefore results in a cost. The regulation may be justified on other grounds, such as safety, health, security and the like. However, rarely does regulation result in increased economic output, although some may argue that certain regulations ultimately result in increased production.
- The Status and Threats to International Law on Freedom of Religion or BeliefThe Future of Religious Freedom: Global Challenges2012
What is the status of religious freedom in the world today? What barriers does it face? What are the realistic prospects for improvement, and why does this matter? The Future of Religious Freedom addresses these critical questions by assembling in one volume some of the best forward-thinking and empirical research on religious liberty, international legal trends, and societal dynamics. For information on this book, click here.
- The Corporate CounselorDecember 2012
Non compete covenants are fairly common in employment agreements, especially where an employee may have access to confidential information or possess specialized, unique skills. Noncompete covenants are designed to ensure that employees do not directly compete with the employer when the employment relationship ends. Lawmakers and courts, however, do not seem to share an employer’s enthusiasm for noncompete covenants.
- Utah Employment Law LetterDecember 2012
Employers often use the holiday season to show their appreciation for employees’ hard work and celebrate with employees in the workplace. Unfortunately, however, even an office holiday party planned with the best of intentions can create legal liability for you or even turn tragic.
- Inside CounselDecember 12, 2012
On August 21, in in EME Homer City Generation, L.P. v. Environmental Protection Agency, the D.C. Circuit vacated the Environmental Protection Agency’s (EPA) Transport Rules governing air pollution emissions, which travel across state boundaries. The rules defined emission reduction responsibilities of 28 upwind states. The rules governed SO2 and NOx emissions, primarily from coal and natural gas fired power plants.
- Inside CounselNovember 27, 2012
In a 9-0 ruling, the U.S. Supreme Court ruled in Sackett v. EPA that the Environmental Protection Agency (EPA) had violated due process rights in an enforcement proceeding brought under the Clean Water Act. The Act prohibits “the discharge of any pollutant by any person” into a “navigable water” without a permit. Upon finding a violation, the EPA can issue a “compliance order” or file a civil enforcement action. The statute gives the EPA power to fine violators up to $35,700 per day. The EPA contends the amount doubles to $75,000 per day when the EPA prevails against a person who has been issued a compliance order but failed to comply.
- The Utah Employment Law LetterNovember 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the current issue written by Kirton McConkie Employment and Litigation lawyer Lance Rich. The newsletter is edited by Employment and Business attorney Darryl Lee.
- The Salt Lake TribuneOctober 28, 2012
Kirton McConkie adoption lawyer David Hardy was interviewed for The Salt Lake Tribune article on the adoption tax credit that may end in December 2012.
- The Utah Employment Law LetterOctober 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the September issue written by Kirton McConkie Employment and Litigation lawyer Brinton Wilkins. The newsletter is edited by Employment and Business attorney Darryl Lee.
- The Journal EntryOctober 2012
The time is quickly expiring to take advantage of current increased gifting limits. Every individual with an accumulated estate in excess of $1,000,000, particularly those with estates well in excess of that amount, should take advantage now before the opportunity expires December 31, 2012
- Utah Employment Law LetterSeptember 16, 2012
Kirton McConkie immigration lawyer Elaine Young outlines a new immigration enforcement policy that opens new doors to thousands of immigrant youths who have graduated from American high schools but are not authorized to work in United States because they are here unlawfully. The new policy gives them a degree of legal protection from deportation and will authorize employment.
- Utah Employment Law LetterSeptember 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the September issue written by Kirton McConkie Employment and Litigation lawyer Lance Rich. The newsletter is edited by Employment and Business attorney Darryl Lee.
- Utah Employment Law LetterAugust 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the August issue written by Kirton McConkie Employment and Litigation lawyer Lance Rich. The newsletter is edited by Employment and Business attorney Darryl Lee.
- Healthcare Finance NewsAugust 23, 2012
Kirton McConkie business and international attorney Chad Grange was extensively quoted in an article for Healthcare Finance News on the downward trend for life science venture capital funding. Grange takes a more bullish stance on the trends stating stars in the industry will attract venture capital in the future.
- Law360August 21, 2012
Kirton McConkie's Ken Horton published an article in Law360 regarding the final rules on third-party prior art submissions recently issued by the U.S. Patent & Trademark Office. In the article, Horton offers nine tips for third-party prior art submissions.
- The Salt Lake TribuneJuly 30, 2012
Kirton McConkie adoption attorney David Hardy was interviewed for a The Salt Lake Tribune article on open adoptions and the state of the matter in Utah.
- Utah Employment Law LetterJuly 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the August issue written by Kirton McConkie Employment and Litigation lawyer Brinton Wilkins. The newsletter is edited by Employment and Business attorney Darryl Lee.
- The Wealth Counsel QuarterlyJuly 2012
Kirton McConkie Estate Planning attorney Geoff Germane outlines options available to those who may have outgrown their family limited partnership (FLP).
- Utah BusinessJuly 2012
Kirton McConkie Business attorneys Gary Winger and Alex Pearson published an update to the Utah Revised Uniform Limited Liability Company Act in the July 2012 issue of Utah Business magazine. The LLC Act was slated to go into effect July 2012, but has been delayed until at least July 1, 2013.
- The Utah Employment Law LetterJune 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the May issue written by Kirton McConkie Employment and Litigation lawyer Lance Rich. The newsletter is edited by Employment and Business attorney Darryl Lee.
- Video interview for Salt Lake Chamber of CommerceJune 20, 2012
Kirton McConkie business and litigation lawyer Shawn Gunnarson was interviewed by Marty Carpenter of the Salt Lake Chamber of commerce on a significant change to the internet that could impact many businesses. Gunnarson specializes in Internet governance issues for business.
- Law360June 15, 2012
Kirton McConkie intellectual property lawyer and former patent examiner Ken Horton addresses a recent case where the U.S. Patent and Trademark Office Board of Patent Appeals and Interferences reversed an obviousness rejection because it relied solely on a legal principle.The board specifically held that reliance solely on a per se rule of obviousness is improper and ruled that when rejecting a claim as obvious over the prior art, the examiner must compare the claimed invention, including all its limitations, with the teachings of the prior art rather than relying on the legal principle alone.
- AdweekJune 13, 2012
Kirton McConkie business and litigation attorney R. Shawn Gunnarson was quoted in an Adweek article today on ICANN's release of 1,930 new gTLDs applicants. He comments on ICANN's proposed selection process.
- Law360June 13, 2012
Kirton McConkie business and litigation attorney R. Shawn Gunnarson was quoted in the Law360 article, stating, "When those generic-term domains go online, brand owners will have many decisions to make about what to do with their trademarks." He added, "Companies would be well-advised to make a concrete list of trademarks they want to protect and the new domains for which they want to register their marks. Since no one knows whether the new domains will catch on, it would likely be prudent to overreact and file more defensive registrations than may seem necessary, he said.
- The Utah Employment Law LetterMay 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the May issue written by Employment and Litigation lawyer Brinton Wilkins. The newsletter is edited by Employment and Business attorney Darryl Lee.
- A Kirton McConkie publication2012
Franchising can be a road to financial success, provided the franchisor approaches the process with realistic expectations and a sound business concept. In this guide, we outline nine basic aspects of your existing business that are essential to begin franchising.
- A Kirton McConkie publication2012
The franchise attorneys at Kirton McConkie answer questions they are frequently asked when a business owner or a company’s senior management is contemplating ways to expand a business. Often franchising comes to mind, but there are other business structures, including licensing, distribution agreements, direct sales and business opportunities.
- The Utah Employment Law LetterApril 2012
The Employment section attorneys at Kirton McConkie edit and write articles for The Utah Employment Law Letter (HRhero.com). Following is a link to one article from the April issue written by Kirton McConkie Employment and Litigation lawyer Lance Rich. The newsletter is edited by Employment and Business attorney Darryl Lee.