May. 31, 2017|By Seth T. Goertz
In December 2015, Rule 26(b) of the Federal Rules of Civil Procedure was amended to narrow the scope of admissible discovery. The purpose of the amendment was to bring a greater focus to the concept of proportionality. Nearly two years later, the amendment has resulted in widescale debate, but its actual impact remains unclear.
Phoenix Magazine Recognizes Attorneys Geoff Kercsmar and Todd Feltus “Top Attorneys” in Business LitMay. 16, 2017|By Gregory B. Collins
Each year, Phoenix Magazine publishes lists of the top professionals and businesses in Phoenix. This year, three K&F attorneys were recognized in the May edition of Phoenix Magazine as "Top Attorneys." Geoffrey Kercsmar and Todd Feltus were recognized for their work in business litigation. Greg Collins was honored in the category of intellectual property litigation.
Jan. 05, 2017|By Gregory B. Collins
The Internet has revolutionized how consumers make decisions. According to a recent survey, 92% of consumers now rely on online reviews before making a significant purchase. And remarkably, 88% of consumers trust online reviews as much as personal recommendation. The upshot: one negative online review can cost a company millions of dollars. Because of this, every company’s intangible assets and its goodwill are at risk on the Internet, every day. While not every negative online review is grounds for a defamation lawsuit, it is often the best—or only—means of addressing verifiably false online statements.
Sep. 30, 2016|By Geoffrey S. Kercsmar
On May 11, 2016 President Obama signed the Defend Trade Secrets Act of 2016 (the “DTSA”). The new law immediately brought trade secrets in line with three other types of intellectual property—patents, copyrights, and trademarks—in one major aspect. For the first time, the federal courts now have jurisdiction to address trade secret misappropriation. This jurisdiction is not exclusive or even guaranteed: state courts can still hear many trade secret claims, and federal jurisdiction is restricted to those trade secrets “used in, or intended for use in, interstate or foreign commerce.” Nonetheless, Congress appears eager to help address concern about trade secret theft, and the DTSA should prove favorable for those businesses affected by this issue.
This is good news for businesses. Growing businesses often owe their success to a nonpublic competitive advantage—some sort of distinguishing feature that separates a company’s product from its competitors’. Companies aggressively protect these distinguishing aspects of their product. Most have heard that Coca-Cola’s recipe is locked in a guarded safe and only known by two people, or that KFC’s “secret spices” are mixed by two different factories to ensure secrecy. Unfortunately, for most businesses, this level of security is unrealistic.
Sep. 26, 2016|By Eric B. Hull
Tonight, the first presidential debate will take place without the participation of Libertarian candidate Gary Johnson. By rule, Mr. Johnson needed “a level of support of at least 15 percent of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations’ most recently publicly-reported results at the time of the determination.” See Commission on Presidential Debates website. But as of today, he is hovering around 9% and is out.
But what if I told you that 9% is more support than Ross Perot had at the time he was included in debates in 1992. And after inclusion in the debates, Mr. Perot went on to register 19% in the general election, making him the only third-party candidate since 1924 to exceed the elusive 15% threshold in a presidential election. In fact, since 1924 only four third-party candidates have garnered even 5% of the final vote (technically 3 candidates – Perot did it twice). Add it up and this 15% threshold seems unfair. Pointless.
Jul. 13, 2016|By Gregory B. Collins
Earlier today, the Second Circuit Court of Appeals denied New England Patriots quarterback Tom Brady and the NFL Players Association’s request for en banc rehearing in the Deflategate case, National Football Management Council v. National Football Players Association, 820 F.3d 527 (2nd Cir. 2016). Sports fans and legal commentators have been weighing in with their opinions regarding the next steps here. As explained below, despite the Second Circuit Court of Appeal's ruling today, there is a very real chance that Tom Brady plays on September 11, 2016, when the Patriots take on the Cardinals in Arizona on Sunday Night Football.
UPDATE: On July 15, 2016, Tom Brady announced that he will not be requesting that the Supreme Court hear the case. He'll serve his suspension the first four games of the NFL season.
Jun. 17, 2016|By Callie Parkinson Maxwell
Effective August 6, 2016, Arizona law will allow employing entities and independent contractors to take advantage of a rebuttal presumption that an independent contractor relationship exists if certain conditions are met. House Bill 211, more commonly known as Declaration of Independent Business Status (DIBS), amends Title 23 of the Arizona Revised Statues by adding Chapter 10 relating to employment relationships, which includes two new statutes: A.R.S. § 23-1601 and A.R.S. § 23-1602.
May. 17, 2016|By Gregory B. Collins
On behalf of our clients, we have alleged that a competitor falsely advertises it products as “natural” when the product contains synthetic materials. Some attorneys have argued that because the Federal Trade Commission (“FTC”) has not defined “natural,” a jury is not competent to determine whether a product is in fact natural. Under this erroneous reasoning, a company could advertise any product as “natural,” no matter how artificial its ingredients. On April 12, 2016, the FTC made clear that Kercsmar & Feltus’s position on “natural” is the law.
Dec. 30, 2015|By Sean J. O’Hara
As business becomes more technical and knowledge-based, employers are increasingly asking their employees to sign covenants not to compete so they may protect trade secrets and confidential business information from being used by former employees who go on to work for competitors. As a result, individuals and companies contemplating new jobs or business opportunities are often faced with determining whether a non-compete agreement prohibits the new job—or whether the restriction is even legally enforceable.
Dec. 28, 2015|By Julia Guinane Wagner
Under federal law, daily fantasy sports are considered a game of skill, not chance. They are not considered gambling under the UIGEA. If it’s legal under federal law, why doesn’t Arizona allow residents to play daily fantasy sports?