2019-09-16T17:40:34+00:00 September 16th, 2019|
Stanley T. Lewis was hired as an associate attorney at BHBC in June of 1980, immediately upon graduation from Pepperdine University School of Law. Stan was admitted to practice in Alaska and Arizona.
In the 1980s, most attorneys at the firm were general practitioners, not specialists. As a result, Stan’s early experience involved a plethora of civil and criminal litigation. As Stan’s practice evolved, he continued to represent clients in litigation and conducted more than fifty criminal and civil trials. He successfully represented clients before state and federal courts, appellate courts, bankruptcy courts, and administrative agencies. Additionally, he was committed to resolving legal disputes through mediation, arbitration, judicial settlement conferences, and other forms of alternative dispute resolution. Stan enjoyed working with clients directly and, as a result, he loved working in the area of personal injury and with injured maritime workers.
Stan had extensive construction litigation experience on behalf of subcontractors, general contractors, design professionals, owners, and public entities. He litigated claims of changed conditions, design flaw changes, fast track construction project claims, and “Little Miller Act” claims. He also assisted owners/financiers in repossessions and transfers due to the insolvency of the general contractor.
Stan was well known to the other attorneys in his office for his expertise in the area of employment law. He resolved numerous employment and labor claims on behalf of his clients, developing wide expertise in working with private investigators, economists, psychologists, accountants, physicians, claims consultants, business valuation experts, and vocational rehabilitation experts. Stan served as a guest speaker on issues relating to employment claims, employee policy and procedure manuals, alternative dispute resolution agreements, and workplace privacy.
In later years, Stan concentrated his practice in the areas of healthcare, business and corporate law, and complex litigation. He represented healthcare providers in matters involving all aspects of the client’s business, from formation and organization of corporate entities to purchases and sales of healthcare businesses, and everything in between (obtaining certificates of need, recruitment and discipline, contracts, medical device and drug liability, state and federal regulatory matters, covenants not to compete, Medicare and Medicaid compliance and audits, professional liability defense, and ERISA, among others).
Stan understood that the practice of law was primarily about the client. The first question that Stan asked in any matter was: “What does the client want to do?” Stan’s practice was the embodiment of the principal that the client came first, last, and always. The next question was the most effective way to accomplish that end. As a result, Stan’s clients respected him and admired his tenacity on their behalf. Many of Stan’s clients became his life-long friends.
Stan was recognized for his ability to ask probing questions and to map out a strategy for successfully resolving the clients’ needs. Stan was strong and determined, and sometimes a little stubborn, but he got the job done, no matter what it required in terms of time, energy, and talents. He knew the importance of building a team and surrounded himself with attorneys, assistants, and staff who could get the job done and deliver a successful result.
Ultimately, for those who knew him personally, Stan was most respected as a family person. There was never any doubt that his wife, Joan, his two boys, Adam and Alex, their families, and the grandkids were the reason he got up every morning.
Stan passed away on August 30, 2019, after a long and bitter battle with cancer. He was surrounded by his family at home in Arizona. He is greatly missed by all who knew him and his legacy and reputation at the firm will last for a very long time. His most lasting impact was just being who he was.
When I was in college, I spent my summers working with construction crews back home in Alaska. In addition to giving me exposure to the industry, I learned about the importance of workplace safety. During my first day on the job on a project, I got a stern talking-to for coming to work without steel-toed boots. Every project manager and superintendent I worked under was determined to maintain an accident-free jobsite—and for good reason. Injuries can mean delays in work, loss of crew morale, and legal headaches.
Sometimes efforts to keep a project free of injuries can have unintended results. I worked for one supervisor who decided to hold a pizza party every Friday if the crew finished the week without an accident or injury. At one point, a co-worker had his thumb crushed while moving boxes. The other members of the crew urged him not to report the injury or seek first aid, because they wanted to get their free pizza. The poor guy went home nursing an injury that he felt he could not tell anyone about.
The temptation to simply keep quiet about even serious injuries can be strong, but managers must not succumb to it. Alaska law requires that an employer report any in-patient hospitalization resulting from a workplace injury to the Alaska Occupational Safety and Health section of the Department of Labor (“AKOSH”). The employer has eight hours to make the call to the AKOSH toll-free number. Even if the injury is not the result of some failure to follow safety measures, and even if the result is just a few hours in the emergency room, employers have to make the call.
AKOSH is essentially the enforcement arm of the federal Occupational Safety and Health Administration. AKOSH will send an investigator out to the jobsite immediately following an injury. The investigator will interview individuals who witnessed the accident, including the injured person. He or she will also take photographs, ask for a copy of the employer’s safety plan, and look around for any OSHA regulation violations, even if they are unrelated to the injury. The inspector will also be looking for remediation of the conditions that caused the injury. The employer’s attorney may be present for this inspection.
AKOSH inspections do not happen only following an injury. Any employee can individually call the department and report a safety problem, prompting an inspection. AKOSH will conduct the inspection “as soon as practicable.” Alaska law provides stiff penalties for employers who respond with retribution against whistleblowers.
After an injury and an inspection, employers are anxious to know what comes next. AKOSH can wait up to 180 days to decide whether or not to issue a citation. If a citation is issued, the proposed penalty will usually be a monetary fine. However, a fine is not the heaviest burden on the employer. Citations generally describe each of the employer’s violations as “serious” or “other than serious.” The first category of violations can do serious reputational damage to a contractor. Not only is the existence of a serious violation public record on the AKOSH website, it is also something a contractor may have to report to project owners or general contractors when bidding for a job. It is a black mark that could prevent a contractor from getting work.
Why does Alaska and federal law levy such heavy penalties following accidents? Because injuries, especially in construction, are a serious concern. In 2017 Alaska led the country in per-capita workplace deaths, with the construction industry experiencing 9.5 deaths per 100,000 people employed in the industry. Nonfatal injuries are much more common. In 2017, there were 2.4 nonfatal reported injuries for every 100 people employed in construction. The number of unreported injuries was doubtless very high as well.
Finally, employers should know that not every injury automatically means a citation. Sometimes, the best safety practices in the world cannot prevent injury. If an injury is caused by equipment failure due to an equipment manufacturing defect, that is not necessarily an OSHA violation. If an employee is under the influence of drugs or alcohol and gets injured as a result, the employer may not be liable for the employee’s misconduct, provided the employer had no way of knowing or preventing what the employee did. These are some of the defenses an employer can present when fighting back against an unjustified citation. After all, AKOSH can make mistakes too. Strong legal representation can keep employers from being burdened by an incident that was simply not their fault.
The U.S. Small Business Administration (SBA) has been busy. SBA has released several rules lately, and more are coming. If you were hoping that SBA would increase the size standards for your receipt-based NAICS code, you are in luck. If you were close to sizing-out and you were hoping for an immediate increase of the higher size standard, then it really is your lucky day.
On July 18, 2019, SBA issued an interim final rule to raise its monetary size standards to adjust for inflation. This rule (including many new size standards) went into effect on August 19, 2019. Please note that SBA is also still accepting comments on this rule. The comment deadline is September 16, 2019, and comments can be submitted online at https://www.regulations.gov/docket?D=SBA-2019-0008.
Why is SBA adjusting is size standards? In order to fulfill both statutory and regulatory requirements to periodically review its size standards for inflation, SBA completed the review and has decided to adjust its monetary-based industry size standards (but not those based on employee numbers) for the inflation that has occurred since the last inflation adjustment, which was published in June 2014.
As result, adjustments were made to 518 industries and 9 subindustries that use receipts-based standards as well as 5 industries that use assets-based size standards. SBA also took this opportunity to adjust two program-specific receipts-based size standards for sales/leases of government property and stockpile purchases. SBA issued this inflation adjustment as an interim final rule, so that small businesses will get the benefit of the higher size standards as soon as possible, even though SBA plans to review (and potentially adjust) its size standards again in the near future based on its 5-year review of industry and Federal market conditions.
How much is the inflation adjustment? SBA found inflation of 8.37% for all receipts-based size standards (except the agricultural standard discussed below), so SBA adjusted those standards by multiplying the current size standards by 1.0837; SBA then rounded the result to the nearest $500,000. SBA found a 40.26% inflation adjustment was warranted for the $750,000 agricultural size standard, so SBA multiplied those 46 agricultural industries with a size standard of $750,000 by 1.4026 and rounded to the nearest $500,000, resulting in a new standard of $1,000,000 for all 46 agricultural industries.
Below is a re-creation of Table 1 from the Interim Final Rule. It demonstrates the specific impact of the inflation adjustment on size standards of varying levels. The third column shows the newly adjusted size standards, including SBA’s adjustments made for rounding.
The Rule at a Glance information below includes a link to the rule, which includes a full copy of the affected size standards. If you have any questions about this rule, how to calculate your business’s size, or how this rule may impact your business, please contact Carissa Siebeneck Anderson or Jon DeVore.
The civil court system acts as a mechanism to resolve disputes. Because of the prevalence of conflicts in the United States, most people will be on the receiving end of a lawsuit at least once in their lives. The most common types of lawsuits are complaints arising out of car accidents, slip and fall lawsuits, the commencement of divorce proceedings, product liability cases, and disagreements over the provisions of a contract. No matter what the reason for the lawsuit, there are a number of things that you should consider. Here are top ten things to do when a lawsuit has been filed against you.
(1) Do not ignore it. Once, when my daughter was driving from Denver to Seattle, her “engine light” came on. Instead of seeking out the assistance of a mechanic, she took a piece of electrical tape and covered up the flashing light. “Out of sight, out of mind.” Needless to say, that strategy didn’t work out, as her car conked out in the middle of the Great Salt Lake. This same strategy is also ineffective when dealing with lawsuits. When someone receives a complaint, there is a natural tendency to want to ignore it. The thought is that if you ignore it, the problem will go away. However, just like my daughter’s engine light, that is not the case. If a complaint is not answered within the timeframe required by the law or civil rules, the party bringing the lawsuit can obtain a default judgment, which basically declares them the prevailing party due to the defendant’s lack of participation. In other words, the plaintiff will be declared the winner by virtue of the defendant’s failure to answer the complaint. While there will be some rare situations where a default judgment makes sense, in general, having a default judgment entered against you results in a negative outcome. Therefore, if you receive a complaint, it is important not to ignore it, but to deal with it head on.
(2) Stay cool. While no one ever wants to get sued, and while it is only natural to feel a sense of anger that you are being hauled into court, it is important to stay cool and not to let your emotions dictate your response. More and more, lawsuits are simply a part of doing business and a reality of our complicated society. The best approach to a lawsuit is to view it as an opportunity to tell your side of the story and to refute what the other side is claiming. The more you can approach the lawsuit with a detached point of view, the better off you will be.
(3) Do not discuss the lawsuit with others. In just about every cop show there is that moment when a police officer reads the accused their Miranda rights, which starts with, “you have the right to remain silent.” While a lawsuit is a civil matter and not a criminal case, this warning applies with equal vigor. When a lawsuit has been filed against you, it is always best not to make any public comments about the matter, as anything you say “can and will be used against you.” This is especially true when it comes to texting or social media. You do not want your posts to come back to haunt you, so it is always best not to say anything at all.
(4) Figure out the deadlines – because deadlines matter. Depending on what court you are in and what rules apply, there will be different deadlines for filing an answer to the complaint. It will be important for you to figure out when the answer is due. By understanding the deadlines involved, you will have a better understanding of the urgency the matter.
(5) Preserve the evidence. One of the lessons routinely revisited by celebrity and political scandals is that it is often the attempt to cover something up that gets you in trouble, as opposed to the original event. After a lawsuit is filed, one of the first things that happens is “discovery,” which is the process of each side disclosing the relevant evidence. If evidence goes missing, the court can enter a number of sanctions against the party that destroyed it. The sanctions can range from a monetary fine to a finding that the party that destroyed evidence is liable. The court can also instruct the jury that when evidence is destroyed, there is a presumption that the evidence would have been detrimental to their case. In extreme cases, a party can actually be held independently liable for the tort of “spoliation of evidence,” which allows for the award of damages against a party that destroyed evidence. With all of this, the court system is well equipped to punish a party that either does not preserve evidence or intentionally destroys evidence. Either way, it is almost always better to just preserve the evidence.
(6) Look for available liability insurance. Most people and businesses have insurance that will cover a wide spectrum of liabilities. For example, in most states, it is mandatory that all drivers purchase automobile liability insurance. When a car accident occurs, the insurer will hire a lawyer for the responsible driver and pay up to a certain amount (policy limit) to resolve the claim. Most businesses have what is called commercial general liability insurance, which will provide coverage for a number of liabilities, including when a person suffers an injury while on the property belonging to the business. Other insurance policies include directors and officer’s coverage, cyber-risk insurance, and professional liability insurance, also known as errors and omissions. The language in each policy will dictate what the insurer will and will not agree to cover, but there is always a chance that you will be covered. Therefore, even if you doubt there is insurance coverage available, it is always a good idea to investigate the issue, particularly as you may have an obligation to notify the insurance company within a specific time frame.
(7) Evaluate whether bankruptcy might be an appropriate option. While many tend to shy away from filing for bankruptcy, there are certainly situations when filing for bankruptcy protection makes the most sense. This would include a situation where a business just needs a “time out” from creditors in order to allow the company to reorganize. If a party is going to consider this option, it is best to make this decision at the beginning of a case. Again, bankruptcy is a tool that is available to businesses and individuals and should be considered when a lawsuit has been filed.
(8) Review any related agreements or documents for an arbitration clause. Since the 1990s, more and more contracts have arbitration clauses. These provisions require that any dispute be resolved not in a court, but before a neutral arbitrator. The idea behind an arbitration clause is that an arbitration is far less costly than a court proceeding and a resolution can be accomplished in a matter of months, as opposed to years. If there is an arbitration clause that applies, it is important to recognize this on the front end of a case, as there are some court decisions that state that if a person does not promptly demand arbitration, but instead, allows the court proceeding to carry on for a period of time, the arbitration clause is waived, meaning that the dispute cannot be arbitrated because of the delay. With this in mind, it is important to identify the existence of an arbitration clause and demand that the dispute be arbitrated promptly.
(9) Try to avoid litigation. One of the things that everyone can agree upon is that litigation is enormously expensive. It is not unprecedented for it to cost in excess of a $1 million to take a case to trial, especially if the trial requires expert testimony. Therefore, both sides will often benefit from an early settlement. In a situation where both sides are well aware of the applicable facts, it is often best to settle even before a lawsuit is answered. Therefore, when a lawsuit is received, consider whether it is possible to settle, including whether the parties would be willing to engage a mediator to assist the parties in coming to a resolution. By doing so, the parties can save time and energy, as well as the cash that will be needed to litigate the matter.
(10) Contact a lawyer. In many respects, this should be number one on this list. No matter what the situation, it is always a good idea to get the advice and recommendations of a person experienced in defending lawsuits. A lawyer will be able to help you navigate the maze of the legal system and provide you with insight that is critical when defending a lawsuit.
If you ever find yourself facing a lawsuit, keep these ten items in mind. Of course, if you want to consult with a lawyer to determine if you would benefit from the services of a lawyer, the dedicated and experienced lawyers at Birch Horton Bittner & Cherot are ready and willing to assist. If we are unable to assist you, we will be able to point you in the direction of someone who can.
A trademark registered with the National Trademark Registry can be an effective way to protect a unique and clever name, slogan, or logo. The Registry, an agency of the federal government, is guided by the Lanham Act, which establishes the rules and regulations for protecting the owner of a federally-registered mark. Once a trademark is issued, no other person can use that same mark and it will grant the holder of the trademark the ability to file a trademark infringement action.
Under the Lanham Act, there are a number of restrictions on what can and cannot be a trademark. For example, a mark cannot contain a flag or insignia of any nation and it cannot be merely a description of goods. Nor is a mark that consists of an “immoral or scandalous matter” permitted. In determining whether a mark is “immoral or scandalous,” the Registry considers whether the general public would see the mark as being “disgraceful, offensive, disreputable, or vulgar.” Recently rejected applications for trademarks have included, “YOU CAN’T SPELL HEALTHCARE WITHOUT THC” and “MARIJUANA COLA,” because the Registry concluded that such marks would be offensive, as they promote drug use. Conversely, marks with an anti-drug stance, including “D.A.R.E. TO RESIST DRUGS” and “SAY NO TO DRUGS,” have been approved.
The subjective nature of such determinations, which appear to have evolved with changing societal norms, is that it can be in conflict with Constitutional protections afforded to free speech under the First Amendment. The United States Supreme Court recently took up this issue in Iancu v. Brunetti. In that case, Erik Brunetti, an artist and entrepreneur, applied for a trademark for the following mark: “FUCT,” which was the name of his clothing line. The Registry denied his request for a trademark on the basis that “FUCT” was “totally vulgar” and had “decidedly negative sexual connotations.” Brunetti challenged the constitutionality of the government’s denial of his trademark on the basis that such a decision violated his right to free speech under the First Amendment.
Finding in favor of Brunetti, and holding that the Lanham Act’s prohibition against the registration of “immoral or scandalous” trademarks infringed the First Amendment, the Court reaffirmed the general notion that the government cannot discriminate based on the content of ideas or opinions. In reaching this 6-3 decision, a number of the Justices recognized that this decision could result in the registration of trademarks that many would deem patently offensive, including racial epithets and sexually explicit terms. Justice Alito, however, reiterated the importance of the First Amendment stating, “it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.”
Cases reviewing the First Amendment which repeatedly recognize the protection of “ideas that offend,” acknowledge that it is a cornerstone tenant of our democracy. However, as the Court signaled in its decision that some restrictive legislation regarding the prohibition of obscene or lewd trademarks could be permissible and survive a constitutional review, it is likely that the debate will continue.
As most Alaskans have come to know, Arctic Man is an extreme race involving a skier and a snowmobile. It is a uniquely Alaskan race that combines extreme conditions with the beautiful Alaska landscape. At the beginning of the race, the skier starts at the top of a mountain which drops 1,700 feet in less than two miles to the bottom of a narrow canyon. When the skier reaches the bottom, he joins up with his snowmobiling partner by grabbing a tow rope. Over the next two miles, the snowmobile pulls the skier uphill at speeds reaching up to 85 miles per hour. Just before reaching the top, the skier drops the tow line and goes over the side of a second mountain, dropping another 1,200 feet to the finish line. Typically, there are more than 10,000 spectators from around the world watching the race.
During the 2014 Arctic Man, a scuffle broke out that has
resulted in a change to the constitutional law of the land. Here’s what happened: Russell Bartlett was attending the 2014
Arctic Man as a spectator. Late on the
last day of the competition, after what was likely a long day of drinking,
Mr. Bartlett got into a confrontation with a police officer, Sergeant Luis
Nieves. Mr. Bartlett claims that
Sgt. Nieves became angry because Mr. Bartlett refused to speak to the
officer and refused to answer his questions.
Later, Mr. Bartlett ran into another officer, Trooper Bryce Weight,
who was interrogating some minors he suspected of drinking. Mr. Bartlett intervened, telling the
trooper he should not be talking to minors without their parents’ consent. Because Mr. Bartlett positioned himself
too close to Trooper Weight, and was allegedly being belligerent, the trooper
pushed Mr. Bartlett away.
Sgt. Nieves saw this encounter and proceeded to arrest
Mr. Bartlett for disorderly conduct.
During the arrest, Mr. Bartlett was slow to comply, so he was also
charged with resisting arrest. After the
arrest, Sgt. Nieves is alleged to have said, “I bet you wish you would
have talked to me now,” referring to the earlier incident where Mr. Bartlett
refused to speak to him.
Eventually, the charges against Mr. Bartlett were
dropped. Thereafter, Mr. Bartlett
filed a civil lawsuit claiming that the police officers had violated his First
Amendment right to free speech. He
alleged that his protected speech was his refusal to speak with Sgt. Nieves
earlier on the day of his arrest. He
contended that Sgt. Nieves arrested him in order to punish him for
exercising his right not to speak. The
U.S. District Court for the District of Alaska dismissed the case on the basis
that a claim for a constitutional deprivation of free speech arising out of an
arrest cannot stand where there is probable cause for the arrest. In other words, the court concluded that
where a police officer has a reasonable basis to make an arrest, he cannot be
held liable for depriving the person arrested of his or her constitutional
right to free speech, even if there was a causal connection between the arrest
and an attempt to stifle speech. Because
there was probable cause for Mr. Bartlett’s arrest, his constitutional
claim was dismissed.
The case was appealed to the Ninth Circuit Court of
Appeals, where the court disagreed with the lower court’s ruling. The Ninth Circuit concluded that just because
there is probable cause to make an arrest does not mean that the individual
arrested cannot bring a claim for depriving a citizen of their constitutional
right to free speech. The case was
appealed to the United States Supreme Court, who agreed to hear the case.
On May 28, 2019, the Supreme Court reversed the decision of the Ninth Circuit. In so doing, the Court created a new standard for determining the viability of a constitutional claim based on the assertion that an arrest took place to stifle free speech. In reaching its opinion, Justice Roberts, writing for the majority, reiterated the longstanding rule that in order for a plaintiff to succeed with such a claim, they must prove the absence of probable cause for arrest. In other words, in order to prevail, a plaintiff will need to prove that the officer had no reasonable basis to make an arrest. Justice Roberts then carved out an exception to this rule. He concluded that if the plaintiff can present objective evidence showing that similarly-situated people would not have been arrested, the claim can proceed to trial, even if there was probable cause to arrest.
Justice Roberts provided an example to illustrate the
application of this newly-created exception to the rule. He described a situation where a person was
engaged in protected speech when a police officer arrested that person,
arguably in an effort to stifle the person’s speech. If the basis for the arrest was that the
person had jaywalked, and if it can be shown that no one else is ever arrested
for jaywalking in that area, the constitutional claim can proceed, even if there
was probable cause supporting the arrest.
Justice Roberts appeared to create this exception to avoid a situation
where a police officer can manufacturer an arrest for the purpose of preventing
Several of the other justices were not pleased with this exception to the general rule. First, Justice Clarence Thomas argued that no such exception existed in the common law. Specifically, he pointed out that claims for false imprisonment, malicious arrest, and malicious prosecution did not have the newly-created exception, but instead required a showing that no probable cause existed. He went on to point out that the statutory cause of action for a deprivation of constitutional rights, as set forth in 42 U.S.C. § 1983, is supposed to be guided by the common law, yet the common law never envisions the newly-created exception.
In addition, Justice Sonia Sotomayor pointed out a
practical problem with the new exception.
She provided examples illustrating how difficult it would be to prove
that a similarly-situated person would not have been arrested, had they not
been exercising their free speech, such as a police officer arresting a person
who was recording police conduct on their iPhone, which is protected speech,
because they had stepped onto the corner of the private property where the
arrest was taking place. Justice Sotomayor queried how that person could prove
that a similarly-situated person not recording would not have been arrested. She
warned the lower courts to be careful in the manner they implement this
exception because of her fear that the newly-created standard makes a
constitutional claim far too difficult to prove.
With this, the law of the land has now been
changed. It is not clear whether this
change in the law will be good or bad, or whether it will encourage or
discourage illegal arrests, but Mr. Bartlett and Arctic Man can take some
credit for creating this new law.
However, while Arctic Man can now claim to have altered this country’s
constitutional law, it is unclear whether this notoriety makes Alaska or Arctic
Man look great. The decision of the
court seems to portray the race in a very negative light. Justice Roberts, in his written decision,
describes the race as being known for not just extreme racing, but also “extreme
alcohol consumption.” He also calls the
small town of Paxson, Alaska, which hosts many of the spectators and
participants, as “one of the largest and most raucous cities in Alaska.” The description of Mr. Bartlett’s
conduct did not help, as his apparent disdain for police officers is typically
not well received by the general public.
The court also leaves the impression that Alaska is the Wild West where
everyone is intoxicated, minors are looking to steal kegs of beer, and police
officers are routinely accosted and abused.
All in all, this does not paint a very good picture of Alaska. Therefore, while I think it is novel to have Arctic
Man serve as a backdrop to the evolution of our constitutional law, I wish
Alaska would have been cast in a better light.