Articles

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.

Kirton McConkie's adoption law group outlines 12 things to consider in private or independent adoptions in Utah.

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.

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.

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.

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

Kirton McConkie business and tax attorney Matthew Wride was interviewed by Forbes about possible future tax consequences of crowdfunding.

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.

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.

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?

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.

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.

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.

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).

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.

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.

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.

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.

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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.

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.

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.

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.

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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.

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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.

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 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 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

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.

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.

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.

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.

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.

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.

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.

Kirton McConkie Estate Planning attorney Geoff Germane outlines options available to those who may have outgrown their familiy limited partnership (FLP).

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 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.

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.

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.

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.

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 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.

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.

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 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.

Intellectual Property lawyer and former USPTO examiner Ken Horton offers several strategies for preventing patent restriction requirements from being imposed, overcoming imposed requirements and reducing the impact on the patent application.

The Employment section lawyers at Kirton McConkie edit and provide articles for The Utah Employment Law Letter (HRhero.com). Following is an article from the March issue written by Employment and Business attorney Darryl Lee and Employment and Litigation lawyer Lance Rich.

Business and Litigation lawyer Shawn Gunnarson  writes about the emerging nations pushing for government control over the Internet. The Internet is currently run by a private, California-based company, but all that could change. Read this article to find out why you should care about what is happening globally concerning Internet governance.

Business attorney Randy Johnson outlines the basic structure of and unique exclusions in a typical Directors & Officers policy to help readers maximize coverage and minimize surprises.

Intellectual Property attorney (and former USPTO examiner) Ken Horton takes readers through the basic steps of analyzing a patent rejection and then writing the reply.

Kirton McConkie adoption attorney David Hardy was interviewed on television by journalist Anderson Cooper about Utah's adoption laws, particularly about fathers' rights. To see the clip, please click here.

Business and Litigation lawyer Shawn Gunnarson outlines ways companies can protect trademarks in light of the new ICANN domain names.

Business attorney Randy Johnson provides criteria defining franchises and how to avoid becoming an accidental franchise.

Intellectual Property attorney Ken Horton was interviewed by Susan Decker of The Washington Post regarding the current trend in strategy to fight patent suits that shun the courtroom in favor of government reviews.

The Employment section lawyers at Kirton McConkie edit and provide articles for The Utah Employment Law Letter (HRhero.com). This article from the February issue was written by Kirton McConkie Employment and Business attorney Darrell Lee.

Real Estate attorney Bill Meaders provided a question and answer format about his experience with real estate transactions for Law360.

Kirton McConkie Business attorney Randy Johnson wrote this article for Inside Counsel in which he outlines the core functions of the bureau and how it intends to carry out its responsibilities.

Business and Litigation lawyer Shawn Gunnarson challenges companies about reliance on the Internet in an article for Inside Counsel. He points out that serious thought should be given to how deeply the Internet is embedded in an organization’s business plan and to the internal Internet policies on which that plan relies.

Intellectual Property attorney (and former patent examiner) Ken Horton outlines methods for quickening the USPTO patent appeals process in this Law360 article.

Business attorney Randy Johnson cautions companies about exercising care in how service providers are classified, particularly given stiff penalties from the IRS.

Litigation lawyer Rod Andreason offers a warning about written contracts. In the article, he states, "No matter what your written contract says, your business could still be liable for doing, or not doing, things you never even discussed before signing the contract."

Even if applying for a generic Top Level Domain (gTLD) doesn’t make sense for your organization, ignoring the application process would be a mistake, warned Litigation lawyer Shawn Gunnarson. The article outlines how companies can protect against intellectual property infringement related to Internet domain names.

Business attorney Randy Johnson addresses how a single-member LLC is recognized as a separate legal entity for liability purposes, but disregarded as a separate entity for tax purposes and how, in some respects, these concepts are at odds.

Internet governance has entered the mainstream of management issues. Business and Litigation attorney Shawn Gunnarson warns that this issue must be understood and mastered for an organization to effectively pursue its goals.

Business and Litigation lawyer Shawn Gunnarson outlines why more businesses should understand the impact ICANN has on the Internet as well as companies that rely on the Internet.

Business attorney Randy Johnson cautions companies raising capital through private securities offerings about their finders fees agreements for raising capital.

Business attorneys Gary Winger and Alex Pearson outlined how the new LLC law differs from the existing law currently regulating LLCs. The was originally to be effective July 1, 2012 for all new LLCs, but implementation was delayed. Refer to the article by these authors in the July 2012 issue of Utah Business for the latest information.

Voluntary codes of conduct offer a viable alternative to government regulation. This article evaluates twenty-one codes and identifies which have greatest potential for conflict-resolution. Effective codes balance competing rights consistent with international law norms, respect multiple traditions, and address a general audience.

International, Business and Franchise attorney Lee Wright alerts business owners to the costly mistake of choosing licensing or distributorships when franchising is actually the appropriate business model. From his experience with many franchisors, Mr. Wright explains how easy it is to cross the line over to franchising and the potential consequences of intentionally or inadvertently setting up the wrong business structure.

Business and Tax attorney Matthew Wride outlines five practical ways business owners can protect personal assets without elaborate asset protection planning.

Business lawyer Shawn Gunnarson was quoted by The Economist regarding the Internet as a powerful catalyst for change, particularly political change. In the article, Gunnarson states, "In most places the internet is now a crucial driver of the economy. More importantly, the Arab spring has shown governments that social-media networks can become powerful tools for the organisation of political protest."

Business attorney Randy Johnson addresses the benefits of planning for partnership dissolution at the outset of a company’s formation--when partners are enthusiastic about the future, rather than when the relationship has soured. Practical information is offered on how to prepare a partnership plan, including some sources of friction that should be covered by an agreement between the partners such as profit distribution, resolution of disputes, responsibilities, capital contributions and an exit strategy.

Intellectual Property attorney Ken Horton provides strategies for appealing adverse patent examiner decisions. As a former patent examiner, Mr. Horton knows the process from the inside and shares valuable insights.

Business and Litigation attorney Shawn Gunnarson and and Business attorney David Shaw discuss a trademark infringement verdict against a Web hosting firm that they say is a wakeup call for the industry. The federal judgment calls attention to the need for an expansion of the current safe harbor in federal law to cover trademark infringement claims against Internet service providers, search engine optimizers, Web hosting service providers and other entities providing services for online businesses.

International Business and Taxation attorney Paul Savage was interviewed for a Wall Street Journal article about Groupon Inc.'s possible plans to open an international headquarters in Switzerland. In summary of his discussion with the WSJ reporter, Mr. Savage was quoted as saying, "If Groupon's model involves doing business in a country where they might be getting a royalty for licensing their name, Switzerland has a very favorable treaty network for royalty payments."

Government/Utilities and Business lawyer David Shaw was extensively quoted by Broadband Communities on the three phases of planning a municipal broadband project. Mr. Shaw offers practical considerations when municipalities are considering a partnership with a broadband company. He speaks from experience as legal advisor on broadbrand projects to Powell, WY, Wired West in Massachusetts, UTOPIA in Utah and other municipal entities.

Business and Estate Planning attorneys Thomas Mecham and Brent Andrewsen address estate and gift tax exemptions slated to change after the 2012 tax year. Learn what you can do now to take advantage of current estate planning laws.

Litigation lawyers Greg Moesinger and Ryan Frazier outline strategies commercial landlords can consider when faced with a non- or short-paying tenant. While there is no perfect path as landlords and tenants balance their relationship with each other, especially in a down economy, these simple strategies may help landlords walk through the process in a stronger position.

Business and Litigation lawyer Shawn Gunnarson was quoted in this Financial Times article addressing the change announced by ICANN to significantly alter the Internet domain structure with a decision to allow the creation of hundreds of new internet suffixes to rival .com and .net.

Informational Technology and Business lawyer Shawn Gunnarson reports on the decision by ICANN to add hundreds of new top level domains to the Internet, fundamentally reshaping the online experience for individuals and businesses. His article describes the change and explains the opportunities and risks it presents.

Real Estate attorney Tom Checketts outlines what businesses and homeowners should know about Utah's unique condemnation laws and the rights property owners have during the process.

Real Estate and Commercial Leasing attorney Lance Dunkley authored this article describing proposed accounting practice changes related to operating leases.