Friday, September 19, 2014

Alternatives to Courthouse Litigation: Resolving Commercial Disputes Without Filing a Lawsuit

Gerald W. “Buzz” Alston, Chair, Alternative Dispute Resolution Department
Gerald W. “Buzz” Alston, Chair, Alternative Dispute Resolution Department

Jennings, Strouss & Salmon attorney, Gerald W. “Buzz” Alston, authored “Alternatives to Courthouse Litigation: Resolving Commercial Disputes Without Filing a Lawsuit,” published in District Energy Magazine’s “From a Legal Perspective” section.

Alston discusses why filing a lawsuit should be viewed as the final option to pursue a resolution in a commercial dispute. Exploring alternative dispute resolution options such as mediation and arbitration can often reduce expenses and time to a resolution, and can potentially preserve business relationships. While alternative dispute resolution cannot resolve every dispute, it should be considered before entering into the judicial system.
Read the complete article.

Tuesday, September 9, 2014

30 Jennings Strouss Attorneys Named to 2015 Best Lawyers® in America List

PHOENIX, Ariz. (September 9, 2014) – Jennings, Strouss & Salmon, PLC, a leading Phoenix-based law firm, is pleased to announce that 29 lawyers have been named to the 2015 Edition of Best Lawyers.
Lawyers on the 2015 Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to verify that they are in current practice and good standing.
Jennings, Strouss & Salmon, PLC congratulates the following attorneys named to the 2015 Best Lawyers in America list:
Gerald W. Alston – Arbitration; Commercial Litigation; International Arbitration – Commercial; International Trade and Finance Law; Litigation – Construction; Mediation

Timothy W. Barton - Litigation - Real Estate
David Brnilovich – Real Estate Law
John R. Christian – Tax Law; Trusts and Estates
Richard K. Delo – Legal Malpractice Law – Defendants; Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants
John J. Egbert – Commercial Litigation; Employment Law – Management; Labor Law – Management
Lee E. Esch – Real Estate Law
Michael J. Farrell – Commercial Litigation; Litigation – Securities
Jay A. Fradkin – Health Care Law; Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants
Jeffrey D. Gardner – Commercial Litigation
Joel L. Greene – Energy Law
Paul G. Johnson – Commercial Litigation
Gary G. Keltner – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation – Bankruptcy; Real Estate Law
Richard L. Lassen – Trusts and Estates
Richard Lieberman – Business Organizations (including LLCs and Partnerships); Corporate Governance Law; Corporate Law; Leveraged Buyouts and Private Equity Law; Mergers and Acquisitions Law; Private Funds / Hedge Funds Law; Securities / Capital Markets Law
Jay M. Mann – Construction Law; Litigation – Construction
Bruce B. May – Real Estate Law
John C. Norling – Real Estate Law
Robert Novak – Banking and Finance Law; Real Estate Law
Michael R. Palumbo – Commercial Litigation
Russell Rea – Eminent Domain and Condemnation Law
J. Scott Rhodes – Administrative / Regulatory Law; Ethics and Professional Responsibility Law; Legal Malpractice Law – Defendants
Alan I. Robbins – Energy Law
Jack N. Rudel – Corporate Law
John G. Sestak, Jr. – Administrative / Regulatory Law; Commercial Litigation; Corporate Law; Litigation - Banking and Finance; Litigation – Construction; Litigation - Labor and Employment; Litigation - Real Estate
Richard Silverman – Energy Law
Wayne A. Smith – Real Estate Law
George C. Spilsbury – Corporate Law; Public Finance Law
Bradley J. Stevens – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation - Bankruptcy
Kenneth C. Sundlof, Jr. – Energy Law
About Jennings, Strouss & Salmon, PLC
Jennings, Strouss & Salmon, PLC, has been providing legal counsel for over 70 years through its offices in PhoenixPeoria, and Yuma, Arizona; and Washington, D.C. The firm's primary areas of practice include agribusiness; bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; legal ethics; litigation; professional liability defense; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit and follow us on LinkedInFacebook and Twitter.
The firm’s affiliate, B3 Strategies, assists clients with lobbying and public policy strategy at the local, state, and federal levels. For more information please visit
Contact:  Dawn O. Anderson  | |  602.495.2806

Monday, August 25, 2014

Richard H. Silverman Named an Officer of University of Arizona Foundation Board of Trustees

PHOENIX, Ariz. (August 25, 2014) – Jennings, Strouss & Salmon, PLC, a leading Phoenix-based law firm, is pleased to announce that Richard H. Silverman has been named Vice Chair of the University of Arizona (UA) Foundation’s Board of Trustees.
Silverman’s one-year term began on July 1, 2014. The other members of the Board include Chair Thomas W. Keating, Secretary Ted H. Hinderaker, Treasurer Robert F. Charles, Jr., and Past Chair Sarah B. Smallhouse.
“I am honored to serve,” said Silverman. “Especially because of the university’s growing and expanding impact on Maricopa County and the state with projects like the UA Cancer Center and Tech Launch Arizona.”  
Silverman served on the UA Foundation Board of Trustees for more than 10 years, and supports the university’s Steele Children’s Research Center and the UA Cancer Center. He earned his undergraduate degree in 1962 and his juris doctorate in 1965 from the UA. Silverman serves on the UA College of Medicine-Phoenix Leadership Board, and the UA TRIF-Water, Environmental and Energy Solutions initiative External Advisory Board. In 1966, he began work at the Salt River Project and later became the company’s chief operating executive and general manager before joining Jennings Strouss in 2011.
About Jennings, Strouss & Salmon, PLC
Jennings, Strouss & Salmon, PLC,  has been providing legal counsel for over 70 years through its offices in PhoenixPeoria, and Yuma, Arizona; and Washington, D.C. The firm's primary areas of practice include agribusiness; bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; litigation; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit and follow us on LinkedInFacebook and Twitter.
The firm’s affiliate, B3 Strategies, assists clients with lobbying and public policy strategy at the local, state, and federal levels. For more information please visit
Contact:  Dawn O. Anderson  ||  602.495.2806

Tuesday, August 19, 2014

Arizona Registrar of Contractors Transition in Complaint Handling Process

By John G. Sestak, Jr.

The Arizona Registrar of Contractors (ROC) has historically followed a unique enforcement process, which has been described as “complainant driven.” Under that process, the complaining party made the sole decision “in whether to file a complaint, whether to have the ROC issue a citation, whether a hearing would occur, and whether repairs or settlement agreements complied with the terms of the contract.” As the ROC described, in a Director’s Message dated September 5, 2013, “in this ‘complainant driven’ process, the complainant made the critical decisions as the parties attempted to resolve their dispute.”

Since the fall of 2013, the ROC has transitioned from a “complainant driven” process to a regulatory process. Now, the ROC will effectively have complete control over the entire process once a complaint is filed. A citation will not be issued simply because the complainant requests it. Rather, the ROC will decide whether the evidence produced by the complainant and gathered by the ROC investigator supports the issuance of a citation. The Director’s Message states that, based upon a comparison with other states, this change will result in fewer citations being issued against contractors.

If the ROC decides to issue a citation, an arbitration process can be implemented. The arbitration process will typically be used for small-dollar disputes involving poor construction on residential properties where a contractor is not the subject of numerous prior complaints. For these cases, the contractor will be able to avoid the citation and formal disciplinary process by resolving the complaint through arbitration.

If a complaint is not resolved, the ROC may decide to prosecute the claim, regardless of whether the complaining party has made a settlement with the contractor or otherwise decides to abandon the complaint. Even if the complainant settles with the contractor, the ROC may elect to prosecute the claim and proceed to a hearing. The ROC may also subpoena the complainant’s testimony, even though the complainant has settled with the contractor. This is why the complainant ceases to become a “party” to the action or process once the complaint is filed.

The ROC will impose progressive discipline on contractors’ licenses based upon the severity and recurrence of violations. The ROC states that, in the future, discipline will consist of letters of concern, suspension limited to a finite number of days, suspension until compliance with an order of the ROC, and possible revocation of a license. The ROC suggests that this change will result in fairer and speedier resolution of investigations and that a contractor will not permanently lose its license for a first-time minor violation.

While the ROC states that these changes will enhance consumer protection, reduce “gaming of the system by bad contractors…,” be fairer to good contractors, and streamline the process, it remains to be seen what will evolve. The Director, in a Director’s Message of May 30, 2014, reported that the new process has resulted in a decrease of the issuance of citations against contractors from 36% of all complaints to approximately 13% of all complaints.

Thursday, August 14, 2014

Chapter 11 Bankruptcy (Infographic)

To learn more about bankruptcy law, contact Jennings Strouss. Jennings Strouss was ranked #1 in Phoenix, Arizona in the field of Bankruptcy and Creditor-Debtor Rights Law by The Best Lawyers in America®, 2010 & 2011.

Friday, August 8, 2014

Unsolicited Text Messages Can Be Costly

We last visited the Telephone Consumer Protection Act, 47 U.S.C.A. § 227 et seq. in 2003, when we wrote about the plethora of unsolicited faxes that were inundating everyone daily, and the legal issues that were associated. Large companies are still being taken to task for unsolicited faxes, and they now encounter new ways of costly intrusions into our time, and wallets.

One of the newest types of “marketing” is advertising through Short Message Services (or “SMS”), a messaging system that allows cellular telephone subscribers to use their cellular telephones to send and receive short text messages. An “SMS message” is a text message directed to a wireless device by using the telephone number assigned to the device. When the SMS or “text” message call is successfully made to a recipient’s phone, the cell phone rings or otherwise “beeps” the receipt of the text message. This type of messaging is popular because mobile phones are rarely out of arms reach of their owners, and SMS messages can be received by a recipient anywhere in the world.

Many advertisers have engaged in SMS texting to promote products to thousands of recipients. In addition to encroaching on a recipient’s time, unsolicited text advertisements cost mobile users money because many wireless service providers charge fees for incoming text messages, or apply a usage allocation deduction to the recipient’s plan.

Congress passed the Telephone Consumer Protection Act (TCPA) to regulate the use of automatic dialing machines and pre-recorded voice messages. With the advent of mass “text marketing,” litigation against such mass marketers is being initiated because the TCPA prohibits “unsolicited advertisements,” which includes “any material advertising the commercial availability of any property, goods, or services, which is transmitted to any person without that person’s prior express invitation or permission.”

The penalties for violating the TCPA are substantial, and the Federal Communications Commission (FCC) can enforce the Act, fining the text senders who are in violation. In addition, private claimants can maintain claims for knowing or willful violations of the TCPA for actual damages, statutory damages, and treble damages up to $1,500 for each violation. This has led to a host of class action lawsuits being filed.

Fax, and now text, advertising is a relatively inexpensive way to distribute mass information about products or services; however, it can become very expensive when the advertisements are sent without prior authorization. Significant damages can be recovered for violations, and those who wish to advertise through these forms of media should carefully review the statutes. Ideally, the company sending the advertisement should attempt to get express permission if it does not have an otherwise standing relationship with the recipient. If the recipient requests that the sender discontinue sending such advertising messages, the sender must stop or risk liability.

Approved First Pilot Project to Test the Fast-Track Licensing Process Provided in the Hydropower Regulatory Efficiency Act of 2013

Sarmentero Blog Author Card

The Federal Energy Regulatory Commission (“FERC” or “Commission”) approved this week the first pilot project to test a fast-track licensing process for hydropower development pursuant to the Hydropower Regulatory Efficiency Act of 2013 (the “Act”).

The Act directed FERC to investigate the feasibility of a two-year licensing process for low impact hydropower developments at non-powered dams and closed-loop pumped storage projects. FERC held an initial workshop on October 22, 2013 and sought comments and recommendations. On January 6, 2014, FERC issued a Notice opening a three-month window to file petitions for an expedited hydropower license under a pilot program starting February 5, 2014 and ending on May 5, 2014. These fast-track pilot projects were required to comply with following minimum criteria:
  • Have minimal change to existing surface and groundwater flows and uses;
  • Have no adverse effect on federally listed threatened and endangered species;
  • Include a letter from the implicated federal dam owner saying the plan is feasible (if applicable);
  • Include a letter from the managing entity of any public park, recreation area, or wildlife refuge giving its approval to use the site (if applicable); and
  • For closed-loop pumped storage projects, the project must not be continuously connected to a naturally flowing water feature.
The first approved fast-track pilot project is Free Flow Power Project 92, LLC's (“Free Flow”) 5-megawatt hydropower project located at the Kentucky River in Estill and Madison Counties, Kentucky (Docket No. P-14276).  In March of 2012, the Commission granted a preliminary permit to study the feasibility of Free Flow’s hydropower project. After filing its petition for the expedited licensing process, Free Flow filed, in June of 2014, a notice of intent to file a license application and a pre-application document (“PAD”). The PAD contained: (1) a detailed project description; (2) a list of potential environmental effects; (3) a proposed study plan to fill information gaps; (4) a process plan and schedule; and (5) documentation of consultation with affected federal and state resource agencies, Indian tribes, non-government organizations, and the public.

In this first pilot, FERC did not require additional studies and approved Free Flow’s proposed studies for hydraulics, fish entrainment, and aquatic habitat without modifications. However, FERC required amendments to Free Flow’s proposed water quality study, endangered species survey, and cultural resource assessments. Remarkably, the letter approving the pilot also includes a process plan and a schedule with milestones that not only Free Flow, but also FERC Staff and the Kentucky DEP must meet.

Wednesday, July 23, 2014

Friday, July 18, 2014

EEOC Sues CVS Pharmacy Claiming Its Separation Agreements Are Unenforceable

U.S. Equal Employment Opportunity Commission (EEOC) commenced litigation against CVS Pharmacy, Inc. alleging that its separation agreements unlawfully prevented employees from communicating with the agency (the EEOC) or filing discrimination claims.  Legal commentators have indicated that the form of separation agreement used by CVS is fairly standard for employers throughout the country.  However, the EEOC contends that the separation agreements interfere with the employee’s right to file charges with the EEOC and other agencies in violation of Title VII of the Civil Rights Act.

The separation agreements are settlement agreements with employees who are terminated.  In exchange for the employee signing a settlement agreement in which he or she waives claims, agrees not to sue, and releases the employer, the employer agrees to pay severance pay (and in many cases other benefits or compensation) which it is not legally obligated to pay.

The CVS separation agreement required the employees to notify the company if the employee became part of an administrative investigation and required that the employee promise not to disparage the company or its officers, directors or employees.  It also contained other restrictions, including a non-disclosure provision, release of claims, and a covenant not to sue.  Obviously payment of settlement compensation normally includes such releases and is designed to prevent lawsuits in exchange for the compensation and settlement payment.

The EEOC says that the separation agreement contained only one provision saying that nothing in the agreement was meant to interfere with the employee’s right to participate in any legal proceeding or cooperate with an agency’s investigation.  The EEOC said this provision is far too restrictive and constitutes a resistance to the full enjoyment of rights secured by Title VII because it interfered with the employee’s right to file a charge with the EEOC or any other employment agency and participate and cooperate with an investigation in to the employer’s practices.  The EEOC is seeking an injunction against CVS and CVS is vigorously defending the case.

The question is whether the EEOC is overstepping with the intent of virtually nullifying the essential purpose of the settlement agreement, which is to make a settlement payment in exchange for the employee agreeing to not take action against the employer.  It has long been held that such settlement agreements cannot prevent the employee from participating in EEOC or other agency investigations.  The case is expected to be litigated through all appeals.

Thursday, July 10, 2014

What Are Our Company's Obligations in the Event of a Data Breach?

Companies that conduct business in Arizona need to be aware of their legal obligations in the event of a data breach. These obligations are set forth by statute. Jennings, Strouss & Salmon attorney Andy J. Chambers discusses things a company should consider in the event of a data breach.