Fennemore Craig, P.C.


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Featured Articles

David Schachter| Less is more when it comes to trademark protected names

An international tour and travel company recently learned the hard way that selecting a powerful trademark requires more than just describing what your company does. In fact, the less descriptive the better.

Aviation, Aerospace and Autonomous Systems

Richard Jost and Jim Wadhams | Integrating Drones into the National Airspace System

Nevada Business, November 1, 2015

Richard Jost | Flying Unmanned Aerial Vehicles In Nevada

Nevada Lawyer, September 2015

The New York Times | Fennemore Craig Client Paragon Completes Near-Space Dive

Construction Law

John Kofron | Protecting your construction project requires more than an insurance certificate

The contractor is “… insured.” This soft phrase suggests the contractor, and its customers, are well protected from loss, but what does it mean under close scrutiny? Consider the following tips when evaluating construction project construction insurance.

Emerging Businesses and Technologies

Fennemore Craig looks to help startups grow with venture accelerator program

As a new startup, Jeff Isquith sought out the Fennemore Craig law firm to represent his company with intellectual property help.

Now, Scottsdale-based Ballistic Furniture Systems Inc. is one of two local companies in Fennemore Craig's new Venture Accelerator program. The program started last summer and seeks promising startups to offer deferred legal costs and expert legal help.

Employment and Labor Relations

Barney Holtzman | Make Your Business ADA Compliant

Ensuring your business physically meets standards of the Americans with Disabilities Act.

Business owners may be familiar with Title I of the Americans with Disabilities Act (ADA) requiring employers to make reasonable accommodations for employees with a disability. They should also know about Title III of the ADA as more than 20 lawsuits have already been filed in Southern Arizona on this issue.

Barney Holtzman | Top 10 Ways to Avoid Employment Litigation

Employment-related lawsuits are expensive and time-consuming. They can get personal too—resulting in hurt feelings and loss of morale.

Follow these tips to reduce the chance of litigation and strengthen the company’s defense in the event an employee or former employee files a lawsuit.

Shannon Pierce | Exercise caution when using this networking tool to research current and prospective employees

Construction Business Owner, September 2015

John Balitis | Same-Sex Marriage: Now It's in the Employers Court

When the U.S. Supreme Court decided Obergefell v. Hodges in June, it put to rest the question of whether gays and lesbians have the Constitutional right to marry. But that decision and the high court’s 2013 holding in United States v. Windsor, recognizing same-sex marriages under federal law, left a lot of work to be done by employers trying to determine their impact and to institute changes—some of them required and some prophylactic. It is up to employers to evaluate a broad spectrum of benefits in light of the rulings.

Barney Holtzman | Factors to consider when firing an employee

Factors to consider when firing an employee

All employers face the difficult decision to terminate an employee. In Arizona, employers can terminate an employee without cause and without warning. However, when terminations are challenged in court, juries are suspicious of employers and view terminated employees as victims.


Inside Tucson Business, September 3, 2015

John Balitis | Unpaid Internships: Pitfalls and Solutions

With summer in full swing, businesses that engage seasonal interns should review their internship programs to ensure compliance with applicable wage and hour laws. Under these programs, unpaid interns can gain important experience, and employers often receive valuable free labor in return. But recent developments show that the intern arrangement is not that simple. Multiple class action lawsuits have been prosecuted by former unpaid interns in recent years alleging they actually were “employees,” and therefore entitled to minimum wage and overtime pay.

John Balitis and Kevin Green | DOL Expands Coverage of the Family and Medical Leave Act

On Feb. 25, 2015, the U.S. Department of Labor (DOL) adopted new regulations that define the term “spouse” for purposes of the Family and Medical Leave Act of 1993 (FMLA). Under the regulations, which take effect March 27, the term “spouse” includes all individuals in same-sex and opposite-sex marriages, without regard to whether the states in which those individuals reside and work recognize same-sex marriage.

John Balitis | The Restaurants, Dining Trends and Laws - Shaping Arizona's Culinary Scene

Arizona Restaurant News, November 2014

Arizona Restaurant News | John Balitis authored "Changing the landscape of location privacy without stalking customers"

The United States Supreme Court's recent prohibition on warrantless digital searches makes clear that we all have a heightend expectation of privacy in the use and content of our mobile devices. If law enforcement cannot automatically access our smartphones incident to an arrest, it stands to reason that private sector businesses seeking to exploit the data on our phones for marketing purposes should do so with caution. 

For the restaurant industry, this cautionary atmosphere raises questions about the use of "geofencing" to enhance traffic and sales. 

Phoenix Business Journal | What happens when court rulings conflict on Obamacare subsidies

Mass confusion was created today when two separate appellate courts issued conflicting decisions on health premium subsidies for consumers purchasing coverage on federally run insurance exchanges, such as the one in Arizona.

The 4th Circuit Court of Appeals ruled that the Affordable Care Act allows subsidies in the 36 states where exchanges are operated by the feds. But the Court of Appeals for the District of Columbia Circuit said no way, they aren't eligible for subsidies.

So which ruling will stand?

"No one really knows what it means, if you want to know the truth," said Devon Herrick, senior fellow with the National Center for Policy Analysis in Dallas.

He said it most likely will get pushed up to the U.S. Supreme Court for a final ruling.

"A decision in one (circuit court) is not binding on other federal courts outside their jurisdiction," he said.

This is all because the law's language is ambiguous, said attorney John Balitis, director of Fennemore Craig PC in Phoenix.

91.5 KJZZ | Federal Policy Changes Could Grant New Rights For Married Same-Sex Couples In Arizona

Under a new rule proposed by the Department of Labor, other couples like Blakely and Puskar-Blakely could be guaranteed leave from work to care for a sick family member. Currently, rights under the Family Medical Leave Act (known as the FMLA) are based on whether couples live in a state that recognizes their marriage.

The change would grant FMLA rights based on whether couples were legally married in any state.

"Even if you move from Minnesota, for example, to a state like Arizona, when you get to Arizona the fact that your marriage was valid in Minnesota will still allow you to derive your leave rights," said employment attorney John Balitis.

That would be a huge change for Arizona and other states that don't allow gay marriage. It comes after last year's Supreme Court decision in the case United States v. Windsor. The ruling struck down the federal definition of marriage as between one man and one woman, and Balitis said it created some complications.

"Because although Windsor made clear that the definition of marriage in DOMA was unconstitutional, it didn't provide any particular guidance about what to do with that ruling in relation to the FMLA," Balitis said.

KTAR News | Same-sex couples could soon get leave time in Arizona

Same-sex couples in Arizona could soon see an expansion of protections if a new proposal is implemented.

The United States Department of Labor has introduced a proposal that would change who qualifies under the federal Family and Marriage Leave Act.

"A spouse in a marriage has the right to take up to 12 weeks of unpaid leave to care for a marital partner with a serious health condition or to care for a child in that marriage," said John Balitis, a Valley employment attorney with Fennemore Craig.

After the Supreme Court invalidated a portion of the Defense of Marriage Act in 2013, which attempted to federally define marriage as between a one man and one woman, the US Department of Labor left the definition of a "spouse" for leave purposes up to the laws of individual states, said Balitis.

"So if you lived in a state that recognized same-sex marriage, such as Minnesota, historically you were able to take advantage of spousal-leave rights under the law," Balitis said. "(But) if you were a member of a same-sex marriage and lived in a state like Arizona, for example, that doesn't recognize same-sex marriage you were not entitled to those rights."

The new proposal would look to instead apply the definition of a spouse from the state where someone was married, effectively including married same-sex couple who fit the other criterion for leave time under the act.

"It essentially would change the definition of a spouse, for spousal leave purposes, from one that is premised on the law of the state in which the person resides, to the law of the state in which they were married," Balitis said.

Balitis said if the proposal is adopted it could have an effect on Arizona businesses and government employees who would become eligible for leave time, so companies need to make sure they're in compliance if it does take effect.

"Employers in states like Arizona need to then turn to their internal policies, their manuals and their handbooks, to make sure that they are consistent with the new rule," he said.

The proposal is currently in a public comment period until Aug. 11.

Phoenix Business Journal | John Balitis comments on proposed FMLA rule changes impacting same-sex spouses

Same-sex couples in states where they cannot legally marry, such as Arizona, could qualify for the federal Family and Medical Leave Act, under a new Obama administration proposal.

The U.S. Department of Labor has issued a proposed rule to expand who can qualify for long-term FMLA leave to include same-sex couples who are married in states that recognize such unions.

That is an expansion of a 2013 rule that included same-sex couples in FMLA benefits if they are living and working in a state that recognizes gay marriage.

The new federal rule changes that “state of residence” to where the marriage occurred.

Employment law expert John Balitis said that means if an Arizona same-sex couple gets married in California, Hawaii or another state that recognizes such weddings, they will qualify for FMLA at their jobs back here.

Arizona Republic - Ask The Expert | Gather facts for claim of age discrimination

I am a 54-year-old male exempt employee who has worked for the same private company for 15 years. A female employee, who is 25 years old with five years in the company, was promoted from a position below mine to one above mine. This position was not posted nor was anyone else in the department made aware of the opening. This person has been promoted four times. I have made it known that I want to advance in the company and it has been met with silence, although my reviews have been consistently positive. Am I the victim of age discrimination?

The facts you describe suggest that you could be the victim of age discrimination, even though you apparently are unaware of any direct evidence of your employer’s age bias, such as an open acknowledgment that age accounts for your failure to advance.

In such situations, state and federal law lay out specific criteria you must satisfy to show that you were treated unlawfully. First, your employer must have at least 15 or 20 employees, depending on whether you are seeking relief under state or federal statutes, respectively. Second, you must be a member of the protected age group, which includes employees who are age 40 and above. Third, you must show that you were treated less favorably than a fellow employee who is not in the protected age group. Fourth, you must be qualified for the promotion and performing your job duties satisfactorily.

Finally, if your employer articulates a non-discriminatory reason for its actions, you then must show that this reason is a pretext, or an invalid excuse, for what in reality was unlawful discrimination.

Assuming your employer is covered, you appear to satisfy all but the last criterion. If you can show that your employer’s stated reasons for passing you over are invalid, you could succeed in prosecuting an age-discrimination claim.

The first step in doing so involves filing a discrimination charge with the Arizona Civil Rights Division or the federal Equal Employment Opportunity Commission. You must participate in an investigation by one of these agencies before proceeding in court.

Legalize - Wage & Tax Laws | AZ-Lifestyle Magazine | June 2014

KFYI Radio | John Balitis comments on NBA sanctions for Clippers owner Donald Sterling

Phoenix Business Journal | John Balitis discusses the impact of raising the minimum wage for tipped workers

Arizona Business Gazette | John Balitis comments on employer's responsibility to provide safe working environments

Phoenix Business Journal | John Balitis comments on the impact of SB 1062 for hospitals

Shannon Pierce | Can't live without social media? #EmployersBeware

Social media is inescapable in modern workplace culture. It’s a commodity that led Twitter to complete a successful initial public offering and that likewise enabled a company like Snapchat to reject a $3billion all-cash offer from Facebook. As social media grows in power and prevalence, employers must understand how to harness it internally and protect themselves from it at the same time.

Shannon Pierce | Party Like Your Lawyer, Not Like a Rock Star | AZ Business Magazine

’Tis (or ’twil soon be) the season for family gatherings, gift giving and, of course, the company holiday party. Since no good deed goes un-litigated, ’tis also the season to prepare for the employee claims that always seem to arrive shortly after the company holiday party.

Phoenix Business Journal | John Balitis discusses how the Affordable Care Act impacts health insurance premiums

Estate Planning and Probate

Bryan Daum and Nancy March | 10 issues you should address in your estate plan today

Many business owners spend a lot of time and energy taking care of their business plans and customers, but do not spend equal time making sure their estate plans are current.

Courtney Miller O'Mara | The Challenges of an Estate Trustee

Northern Nevada Business Weekly

Tax, Business and Estate Planning

There has been an important change in the rules for IRA rollovers, which are transactions that let you withdraw cash from one IRA and redeposit it in another IRA without paying a current tax.

Tax Developments in 2014

The following is a summary of some important tax developments that have occurred in the last year that may affect you, your family, your investments, and your livelihood. Please call us for more information about any of these developments and what steps you should implement to take advantage of favorable developments and to minimize the impact of those that are unfavorable.

Gaming and Hospitality

Dan Reaser and Katherine Hoffman | Commission considers next gen gaming

Northern Nevada Business Weekley, September 14, 2015

Intellectual Property and IP Litigation

David Schachter | Strategies: Patent and Trademark Office not high on pot retailers and products

Signs are everywhere that Colorado’s blooming marijuana industry has gone from the thing few felt comfortable talking about to a mainstream business promising huge financial rewards.

David Schachter | Strategies: Don’t assume your own your intellectual property

Many a business has been tripped up assuming that it owns its intellectual property.

Just as IP itself is, by definition, a largely intangible thing, the rules surrounding ownership of IP can be equally hard to get your hands around.

David Schachter | What you need to know to protect your business from patent trolls

By now most of us have either encountered, read about or received a threatening letter from a patent troll – those enterprising vermin whose exploits, aimed at squeezing dollars out of others through the use, many would say abuse, of the U.S. Patent laws, have cost patent owners millions and vexed the high tech industry and lawmakers for decades.

Nonprofit and Tax-Exempt Organizations

Kendis Key Muscheid and Richard Jost | Nevada's New Charitable Contribution Solicitation Law Tightens Up Process

Beginning this year, nonprofit corporations soliciting charitable contributions in Nevada have new requirements for both reporting and disclosures under NRS82.382 to 82.417, inclusive, pursuant to AB 60 of the 2013 Session.

Plaintiffs' Personal Injury

Wall Street Journal | Glass Action: Google Glass Chronicles Personal Injury Struggles

What businesses do or don’t do to protect people from injury may soon be used against them in a court of law — by claimants wearing Google Glass. Clients at law firm Fennemore Craig P.C., including a double amputee, are wearing Glass to chronicle their personal injury struggles, generating evidence that can bolster their legal claims. It’s another example of how businesses are creating uses for Google’s wearable computer, which briefly went on sale to the public Tuesday, before a mass consumer release expected later this year.

Real Estate

Benjamin Bauer | Issues in Commercial Real Estate Purchase Form Contracts

Many commercial real estate purchase and sale transactions are implemented using “standard form” contracts provided by one of the parties to a transaction. These “forms” are developed based on experience in particular transactions that may or may not fit your situation.


Extra, Extra…. IRA Charitable Rollover Revived for 2014

Extra, Extra….  IRA Charitable Rollover Revived for 2014.  A number of popular tax breaks that expired at the end of 2013 have been revived.  On December 16th, the Senate passed a one-year extension of expired tax provisions retroactive to January 1, 2014.  This reauthorizes the IRA charitable rollover through December 31, 2014.  Donors age 70 1/2 and older may transfer up to $100,000 from their IRA to a qualified public charity.  The transfer will be made free of federal income tax and the gift qualifies for the donor's 2014 required minimum distribution (RMD).  Please call us for more information about this development and what steps you should implement to take advantage of it.

In The News

July 20, 2016
Fennemore Craig Attorney Elected to Fresh Start Women’s Foundation Auxiliary Board [NEWS]

July 19, 2016
Fennemore Craig Attorney Elected Board Chairman of Directors for Habitat for Humanity [NEWS]

July 5, 2016
Fennemore Craig Announces Laura Wassmuth as Health Care Litigation & Regulation Practice Group Chair [NEWS]


Publications and Events
March 31, 2016
OCR Launches Phase 2 of HIPAA Audit Program [NEWSLETTER]

July 21, 2016