Publications Archive

Kirton McConkie employment litigation attorney Ryan Frazier writes about a case in which an employee, in a retaliatory move, stole his former employer’s primary trade secret—its software product source code—and then freely handed it over to a major competitor.

The Supreme Court on Tuesday ruled in a pair of cases that the Federal Circuit's standards for awarding attorneys' fees to prevailing parties in "unreasonable" patent infringement cases must be eased. Read Kirton McConkie intellectual property lawyer Ken Horton's response to Law360 on why the high court's decisions matter. Click title to read.

Kirton McConkie technology lawyer David Shaw was interviewed for this E-Commerce Times article about net neutrality. "While barring unreasonable commercial behavior that can harm the Internet may sound like Net neutrality, it may have pernicious consequences for consumers. 'Effectively, what it does is invite litigation for the next decade about what is harm to the Internet,' said attorney David J. Shaw. While its effort is laudable, the FCC is ignoring the basic problem of supply and demand, he added."

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.

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.

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.

Kirton McConkie employment litigation attorney Ryan Frazier was interviewed for this article on managing the paperwork generated by the hiring process.

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.

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).

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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).

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 case discussed in this article helps illustrate when an employee may have a justifiable belief that he has been the subject of race discrimination.

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.

Kirton McConkie employment and business litigation attorney Ryan Frazier was interviewed for the special Law Day 2013 supplement.

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.

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 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.

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.