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HOW DO CONTRACTORS GET PAID IN FULL FOR THEIR NEVADA CONSTRUCTION WORK?

FAQs

What is consumer fraud in Nevada?

One of the Nevada statutes I turn to frequently is NRS 41.600, entitled “Actions by Victims of Fraud.” This statute allows any person who is a victim of “consumer fraud” to recover his or damages, equitable relief (which can include “rescinding” or unwinding the bad deal), and attorney’s fees. The statute gives a specialized definition of “consumer fraud.” The most important part of this definition is that “consumer fraud” includes any “deceptive trade practice” described in NRS 598.0915 to 598.0925.

Turning to the statutory definition of “deceptive trade practice” reveals multiple lists of conduct that counts as a deceptive trade practice and, therefore, consumer fraud. Some of the items are fairly specific and some are general. There are more than 57 separate items.

Whenever I encounter any kind of fraud or consumer dispute, I will review theses lists to see if one or more of the items match the situation with which I am dealing. Some particularly potent items on the statutory list of deceptive trade practices include:

  • Knowingly making any false representation in a transaction, NRS 598.0915(15);
  • failing to make delivery of goods or services for sale or lease within a reasonable time, NRS 598.092(4);
  • knowingly misrepresenting the legal rights, obligations or remedies of a party to a transaction, NRS 598.092(8);
  • conducting a business or occupation without all required state, county or city licenses, NRS 598.0923(1);
  • failing to disclose a material fact in connection with the sale or lease of goods or services, NRS 598.0923(2); and
  • violating a state or federal statute or regulation relating to the sale or lease of goods or services, NRS 598.0923(3).

Investors and those who market investments should pay particular attention to NRS 598.092(5), which says that a deceptive trade practice includes advertising or offering an opportunity for investment and:

  • representing that the investment is guaranteed, secured or protected in a manner which he or she knows or has reason to know is false or misleading;
  • representing that the investment will earn a rate of return which he or she knows or has reason to know is false or misleading;
  • making any untrue statement of a material fact or omits to state a material fact which is necessary to make another statement, considering the circumstances under which it is made, not misleading;
  • failing to maintain adequate records so that an investor may determine how his or her money is invested;
  • failing to provide information to an investor after a reasonable request for information concerning his or her investment;
  • failing to comply with any law or regulation for the marketing of securities or other investments; or
  • representing that he or she is licensed by an agency of the State to sell or offer for sale investments or services for investments if he or she is not so licensed.

So when you are a consumer or investor with a question about your rights, check the statutory list of deceptive trade practices. If you are a business, please be aware that some of your customers may check this list as well. As always, I am more than happy to discuss with you any questions you might have about Nevada consumer fraud.

As an Out-of-State Attorney, How Do I Make My Appearance in a Nevada State Court or Administrative Proceeding?

An out-of-state attorney may not appear in a Nevada state court case without the court’s permission. Obtaining such permission requires a two step process. First, the attorney submits a completed Verified Application for Association of Counsel Under Nevada Supreme Court Rule 42 to the Nevada State Bar together with the attorney’s certificate(s) of good standing, and requests a Statement from the Nevada State Bar. Second, after receiving the requested Statement, the attorney’s local counsel files with the state court or administrative agency a Motion to Associate Counsel. The Motion to Associate Counsel includes a copy of the foregoing verified application, State Bar of Nevada Statement, and the attorney’s certificate(s) of good standing.  The State Bar of Nevada Supreme publishes a form SCR 42 Pro Hac Vice Application.

To apply for permission, the out-of-state attorney must meet the following conditions:

(a) The lawyer is not a member of the State Bar of Nevada;

(b) The lawyer is not a resident of the State of Nevada;

(c) The lawyer is not regularly employed in the State of Nevada;

(d) The lawyer is not engaged in substantial business, professional, or other activities in the State of Nevada;

(e) The lawyer is a member in good standing and eligible to practice before the bar of any jurisdiction of the United States; and

(f) The lawyer associates an active member in good standing of the State Bar of Nevada as counsel of record in the action or proceeding.

The granting or denial of a motion to associate counsel under SCR 42 rule is discretionary. And The court, arbitrator, mediator, or administrative or governmental hearing officer may revoke the authority of the person permitted to appear as counsel under SCR 42 to make continued pro hac vice appearances. SCR 42(6).

During the proceeding, the out-of-state attorney must renew his or her pro hac vice admission annually by paying the applicable fee to the State Bar of Nevada. SCR 42(9).

SCR 42(16) states that “[t]he Nevada attorney of record shall be responsible for and actively participate in the representation of a client in any proceeding that is subject to this rule.” In addition, “[t]he Nevada attorney of record shall be present at all motions, pre-trials, or any matters in open court unless otherwise ordered by the court.”

As an Out-of-State Attorney, am I permitted to participate in a Nevada arbitration or mediation?

Nevada Supreme Court Rule 42(1)(a)(3) dictates that an out-of-state attorney must be admitted pro hac vice to participate in “all arbitration, mediation, or alternative dispute resolution procedures in this state that are court annexed or court ordered, or that are mandated by statute or administrative rule.” Likewise, pro hac vice admission is necessary for “all services incident to any of these proceedings including, but not limited to, discovery and settlement negotiations.” SCR 42(1)(a)(4). Nevertheless, “this rule does not apply to arbitration, mediation, or alternative dispute resolution procedures in which the parties engage voluntarily or by private agreement.” SCR 42(1)(b). Although the rule and exception have some ambiguity, I believe that, at a minimum, an attorney desiring to participate in a Nevada arbitration or mediation that has been ordered by a court should apply for pro hac vice admission.

As an Out-Of-State Attorney, May I Sign a Complaint or Answer in Nevada Federal Court Prior to Obtaining Nevada Local Counsel?

Per Local Rule IA 11-2(c), “[a]n attorney whose verified petition is pending must not take action in this case beyond filing the first pleading or motion. The first pleading or motion must state the attorney “has complied with LR IA 11-2” or “will comply with LR IA 11-2 within ___ days.” Until permission is granted, the clerk must not issue summons or other writ. Local IA 11-2(e) states that in civil cases, an attorney must comply with all provisions of the rule within 45 days of his or her first appearance.

As an Out-of-State Attorney, How Do I Make an Appearance in Nevada Federal Court?

An out-of-state attorney may not appear in a Nevada federal court case without the court’s permission. Local Rule IA 11-2(a) and (b) outline the requirements for such an appearance. The out-of-state attorney files a Verified Petition for Permission to Practice in this Case Only by Attorney Not Admitted to the Bar of this Court and Designation of Local Counsel using the court’s form. To apply for permission, the out-of-state attorney must meet the following conditions:

 

  • The attorney is not a member of the State Bar of Nevada
  • The attorney is not a resident of the State of Nevada
  • The attorney is not regularly employed in the State of Nevada;
  • The attorney is a member in good standing and eligible to practice before the bar of another jurisdiction of the United States; and
  • The attorney associates an active member in good standing of the State Bar of Nevada as attorney of record in the action or proceeding.

Per Local Rule IA 11-2(d), the resident attorney must have authority to sign binding stipulations. Unless the court orders otherwise, the resident attorney need not personally attend all proceedings in court.

What cases qualify for Business Court?

In Reno and Sparks, Nevada (Washoe County), a civil case is assigned to the business court docket if its primary subject matter is:

  1. A dispute concerning the validity, control, operation or governance of entities created under NRS Chapters 78-88 (corporations, limited liability companies, partnerships, limited parterships, and business trusts), including shareholder derivative actions;
  2. A dispute concerning a trade-mark or trade name;
  3. A claim asserted pursuant to the Nevada Trade Secrets Act;
  4. A claim asserted pursuant to the Nevada Securities Act;
  5. A claim asserted pursuant to the Nevada Deceptive Trade Practices Act;
  6. A claim involving investment securities; or,
  7. Any dispute among business entities if the presiding judge of the business court docket determines that the case would benefit from enhanced case management.

How do contractors get paid in full for their Nevada construction work?

Every construction season, many contractors like you deal with collection issues on their jobs. You might even be surprised how many of colleagues and competitors in Nevada have gone through the payment issues that you deal with now. So I have prepared a free legal report called “How do contractors get paid in full for their Nevada construction work? Please get your copy on this website.

How is an employee non-competition agreement enforced in Nevada?

I receive a lot of questions from employers and employees about the process for enforcing a non-compete agreement in Nevada.

In Nevada, an employer seeking to enforce a non-compete engages counsel and files a lawsuit against the ex-employee alleging the circumstances that constitute a breach of the non-compete agreement. If the employer reasonably believes that the ex-employee is also breaching an agreement prohibiting the ex-employee from misusing the employer’s confidential information or soliciting the employer’s customers or employees, then the employer will add those breaches to the lawsuit. If the employer believes that the ex-employee’s new employer has wrongfully caused the ex-employee to breach the non-competition agreement, a confidentiality agreement, or a non-solicitation agreement, then the former employer may name the new employer as an additional defendant in the lawsuit.

Simultaneously with filing the lawsuit, the employer’s attorney will file a motion for temporary restraining order and for preliminary injunction. The motion should be supported by a sworn statement of a company representative and any other witnesses for the employer who have knowledge of the claimed breaches. The attorney bringing the motion also includes a certificate of the attorney’s efforts to notify the opposing party of the motion.  In addition, a proposed order will be prepared and submitted with the motion.

At this point, things get interesting from a procedural prospective. In Nevada, a temporary restraining order may be obtained in an emergency situation with little or no notice to the other side. This is known as an “ex parte” proceeding. The attorney will hand-walk or otherwise deliver the papers to the Judge’s chambers and ask for a meeting with the judge to discuss the application for temporary restraining order. The judge determines whether and when she will meet with the employer’s attorney. Sometimes, the judge considers the proposed temporary restraining order without any input from the ex-employee. Sometimes the ex-employee is able to engage an attorney on short notice to request from the judge an opportunity to be heard. Such a request is usually honored if it is received quickly enough.

If the judge grants the temporary restraining order, then he also schedules a preliminary injunction hearing to occur within 15 days. The temporary restraining order automatically expires in 15 days, but can be extended once by the judge for another 15 days. The judge is supposed to make the employer post a bond or other security before the temporary restraining order goes into effect. Sometime that security turns out to be fairly minimal. If the temporary restraining order is granted, then the employer will post the security and then put the ex-employee and new employer on notice of the order’s requirements. If the judge does not grant the temporary restraining order, she will still schedule the preliminary injunction hearing. Before the date of the preliminary injunction hearing, the ex-employee’s attorney should file a written opposition to the employer’s motion that includes a sworn statement from the ex-employee and any other witnesses on whom the ex-employee is relying.

One of the primary focuses of the preliminary injunction hearing will be for the judge to determine if the non-competition agreement is reasonable in its length, geographic scope, and definition of the prohibited competitive conduct. In contrast to the less-formal application process for a temporary restraining order, a preliminary injunction hearing is an evidentiary proceeding that will take place in the courtroom after notice is given to all parties. Exhibits will be marked and witnesses will testify.

By the time of the preliminary injunction hearing, the former employer and the ex-employee will be receiving feedback as to how the judge sees the case. Each will probably have a good idea of whether the other has the staying power and determination to keep litigating. So this is often a good juncture for settling the dispute. The judge might conduct settlement discussions at some point during the preliminary injunction hearing or at least invite the parties to do so. The employer and ex-employee can also take the initiative to resolve their dispute without waiting for the judge’s invitation. If the parties do not settle and the judge enters a preliminary injunction, the preliminary injunction will stay in place for the duration of the lawsuit. This will give the former employer a strong upper hand. Alternatively, if the judge declines to enter a preliminary injunction, then the former employer will need take a hard look at whether it should continue the lawsuit.

How did the 2017 legislative session change Nevada law regarding non-competition agreements?

Governor Sandoval recently signed Assembly Bill 276 (“AB 276”) into law. It has always been the law in Nevada that employee non-competition agreements cannot be enforced unless they are reasonable in scope. AB 276 refines this principle in several important ways.

First, AB 276 states that a non-competition agreement is void and unenforceable unless it: (a) is supported by valuable consideration; (b) does not impose any restraint that is greater than is required for the protection of the employer for whose benefit the restraint is imposed; (c) does not impose any undue hardship on the employee; and (d) imposes restrictions that are appropriate in relation to the valuable consideration supporting the noncompetition covenant.

Second, a non-competition agreement may not restrict a former employee of an employer from providing service to a former customer or client if: (a) the former employee did not solicit the former customer or client; (b) the customer or client voluntarily chose to leave and seek services from the former employee; and (c) the former employee is otherwise complying with the limitations in the covenant as to time, geographical area and scope of activity to be restrained, other than any limitation on providing services to a former customer or client who seeks the services of the former employee without any contact instigated by the former employee.

Third, if the termination of the employment of an employee is the result of a reduction of force, reorganization or similar restructuring of the employer, a non-competition agreement is only enforceable during the period in which the employer is paying the employee’s salary, benefits or equivalent compensation, including, without limitation, severance pay.

And fourth, AB 276 overturns a recent Nevada Supreme Court opinion by instructing courts to “blue-pencil,” i.e., trim back, over-broad non-competition agreements. Thus, if the non-competition agreement contains limitations as to time, geographical area or scope of activity that are unreasonable, over-broad, or unduly burdensome, the court must revise the non-competition to the extent necessary and enforce the non-competition agreement as revised.

I believe the main effect of AB 276 will be to prevent courts from quickly rejecting a non-competition covenant on the basis that it is too broad. Rather, in a lawsuit to enforce such an agreement, the court is more likely to need an evidentiary hearing to sort through the factors listed in AB 276 and then to decide whether and how far to trim back the non-competition agreement.

Employers and employees alike will want to review their existing non-competition agreements in light of these changes to Nevada law.

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