Richards Brandt Welcomes Attorneys Jonathon Parry and Adam Affleck


Jon Parry practices in the areas of estate planning and administration, business law, and business succession planning.


Adam Affleck’s practice focuses on trial and appellate work involving bankruptcy, real estate, contracts, secured transaction, fraud, trade regulation and anti-trust.

We are honored to have these seasoned attorneys be part of the Firm.

The Doctrine of Election of Remedies in Utah

July 2019

One procedural issue parties occasionally face in civil litigation is the requirement to make an election of remedies. In its most basic terms, the election of remedies doctrine prevents double redress for a single wrong and avoids legally or factually inconsistent recoveries for the same wrong. There may be a claim alleged in your case that could lead to multiple, inconsistent remedies, and if so the party making that claim will need to make an election of remedies. One Utah case described it this way: “If a defendant wrongfully retains possession of a plaintiff’s cow, for example, the plaintiff may not recover both the cow and the reasonable value of the cow. The plaintiff must elect one of these two remedies.”

This issue often arises in business and commercial litigation where a plaintiff claims there was mutual mistake or some form of misrepresentation when a contract was entered. If so, the plaintiff may pursue the remedy of damages for breach of contract or may seek rescission of the contract. But ultimately, the plaintiff cannot be awarded both of these remedies.

One important question is when the election must be made. Utah’s modern pleading rules permit litigants to plead inconsistent theories of recovery in the alternative. Contrary to the harsh rule in older case law, current Utah law permits a party to pursue inconsistent remedies until the fact-finder and the judge have resolved all factual and legal disputes related to the inconsistent theories of liability. Thus, an election of remedies is not binding until one remedy is pursued to a determinative conclusion.

If your case involves a claim that supports multiple, inconsistent remedies, it is important to identify those potential remedies early on, evaluate the merits of all available remedies, and be mindful of the need, ultimately, to make an election between them.

Matthew Barneck is a shareholder at the Salt Lake City law firm of Richards Brandt Miller Nelson. He can be reached at Matthew-Barneck@rbmn.com, 801-531-2000.

 

Avoiding dissolution pitfalls and protecting against post-dissolution liability for company debts and claims

Steven H. Bergman
April 2019

Based on information contained in the Department of Commerce’s most recent annual report, there are currently more than 300,000 businesses operating in Utah, with approximately 60,000 new business filings each year. For the past decade, the most common form of new entity in Utah has been the limited liability company. The next most common is a DBA registration of a fictitious business name, followed by the corporation. Each of these new entities brings the promise of a new business venture, new ideas, new jobs, and potential success.

Although the overall number of businesses in Utah has been growing, the Department’s annual report suggests that on an annual basis, more 40,000 businesses either fail to file an annual report or dissolve. For the principals of these 40,000-plus businesses, the failure to file an annual report or the dissolution of the business triggers potential issues that if not managed properly can have adverse effects on the shareholders, members, directors, officers, and managers of these businesses.

Failing to file an annual report can eventually lead to administrative dissolution of a corporation or limited liability company. Once a corporation or limited liability company is administratively dissolved, any action taken by the directors, officers, or managers that is not related to the winding up of the entity can result in the personal liability of the acting director, officer, or manager.

Similarly, in those instances where the shareholders or members of a corporation or limited liability company elect to dissolve, or a court orders the dissolution of the entity, properly dissolving and winding up the entity can make the difference between the principals still enjoying some or all of the available liability protection after the entity is wound up and those same principals being exposed to personal liability for the debts of and claims against the entity. This is not a theoretical risk, as Utah Courts have found directors, officers, and managers of dissolved entities personally liable for actions taken after dissolution. In these instances, the director, officer, or manager who was found liable could have avoided that liability by complying with the annual reporting requirements under the Utah Revised Business Corporations Act or the Utah Revised Uniform Limited Liability Company Act or by following the dissolution and winding up procedures under those acts.

For example, when the dissolution and winding up process is in accordance with the provisions of the Utah Revised Business Corporations Act, officers are generally protected from post-dissolution liability, and shareholders can only be held liable for company debts and claims up to the amount they received in monetary distributions from the winding up process. Conversely, not following the procedures (for example, by distributing corporate property other than money), can expose the receiving shareholder to liability in excess of the limits set forth in the Utah Revised Business Corporations Act. Similar rules apply to limited liability companies wound up under the Utah Revised Uniform Limited Liability Company Act.

Another important part of the winding up process is the management of claims against the entity. Following the procedures under either act can lead to the early and final resolution of claims against the entity. Not following those procedures can result in claims against the entity. Furthermore, the former shareholders or members may also be exposed to liability for extended periods–up to seven years in the case of corporations and six years in the case of limited liability companies.

The attorneys in Richards Brandt’s Business Transactions and Corporate Governance and Business and Commercial Litigation practice groups know and understand the statutes, rules, and regulations that apply to corporations and limited liability companies. If you have a corporate or company governance issue, or are in the process of or soon will be dissolving and winding up a corporation or limited liability company, contact one of the attorneys in RBMN’s Business Transactions and Corporate Governance or Business and Commercial Litigation practice groups.

Richards Brandt Attorneys Named Utah Legal Elite 2019

March 2019

Richards Brandt is pleased to congratulate the following attorneys for being recognized as Legal Elite in Utah Business Magazine:

Civil Litigation: Bobby Wright, Rafael Seminario
Construction: Brian Bolinder, Craig Coburn, Lincoln Harris
Healthcare: Cortney Kochevar
Insurance: Gary Johnson
Intellectual Property: Barry Scholl
Workers’ Compensation: Mark Sumsion, David Tolk

Craig Coburn Receives Lifetime Achievement Award

At the 5th Annual Intermountain Construction Defect & Dispute Conference held on February 8, 2019, the Utah chapter of Advise & Consult awarded Craig Coburn with its Lifetime Achievement Award for Craig’s contributions in construction law. Richards Brandt congratulates Craig for this much deserved award honoring him for his level of excellence and longtime service in the field of construction law.

Gary Johnson Receives G. Duffield Smith Outstanding Publication Award

August 2018

Gary Johnson has been selected as this year’s DRI recipient of the G. Duffield Smith Outstanding Publication Award. This award honors the author of the most outstanding defense related article published in For The Defense or In-House Defense Quarterly in 2017. His article «Planning the Future: Blockchain Technology and the Insurance Industry published in the In-House Defense Quarterly Fall 2017 issue, has achieved this highest standard.

The award will be presented at «A Celebration of Leadership» at the 2018 DRI Annual Meeting in San Francisco, California.

Richards Brandt congratulates Gary on his remarkable achievement.

Read article here: https://www.richardsbrandt.com/wp-content/uploads/2017/10/16J1065-GLJ-BLOCKCHAIN-TECHNOLOGY_.pdf

 

 

 

Leveling the Playing Field

 

by Craig Coburn and Lincoln Harris

For decades, the golden rule – that is, ‘he who has the gold rules” – was the name of the game in design and construction contracting. Under the rule, project owners pushed risks, usually on a take-it-or-leave-it basis, onto prime contractors who, in turn, pushed them onto subcontractors, even though no one

in this contracting scheme was in a better position to manage that risk than anyone else. The ‘go-to’ provisions in this regard were the so-called ‘indemnity’ provisions.

In 1997, Utah subcontractors found some measure of relief from these provisions with passage of Utah Code Ann. 13-8-1. Under 13-8-1, subcontracts could
no longer require subcontractors to hold harmless, indemnify and defend their customer (e.g., a prime contractor) against claims resulting from the customer’s own fault. Still, because a construction team collectively controls a job site, these types of provisions remain permissible in the owner-prime contract to properly allocate responsibility for job-site risks.

Similar provisions having different import have long been the norm in design professional contracts as well – similar
in that the provisions transferred risk to design professionals that they could not control, but different in that the provisions created insurability issues that arose only under professional liability policies, not contractor/ subcontractor commercial general liability policies. In short (and
with more than a touch of irony), a design professional contract’s indemnity provision often compromised the professional liability insurance required elsewhere in the same contract. Still other provisions in design professional contracts purported to raise the standard of care for design professionals above that required under Utah law and, arguably, to a unattainable level.

For several years, we at Richards Brandt Miller Nelson (RBMN) had suggested that design professions consider running a bill to address these concerns. In 2017, ACEC Utah and AIA Utah took RBMN up on its suggestion and RBMN drafted and, in 2018, helped these associations secure passage of HB 279. Slated to be codiied at Utah Code Ann. §13-8-7, HB 279 will alleviate much of what has concerned design professionals working in the public sector for generations and has only gotten worse in the last few years.

What Does Utah Code Ann. §13-8-7 Do?

• Applies to public-sector ‘design professional services contracts’ – deined as contracts tah governmental entity or for an improvement to real property owned or to be owned by a Utah government entity – entered into on or after May 8, 2018.

• Prohibits and voids, as against public policy, provisions in these contracts that:

• require a design professional to hold harmless or indemnify anyone for injuries or losses except to the extent caused by the design professional or those for whom the design professional is legally liable;

• require a design professional to defend anyone for injuries or losses allegedly caused by a design professional’s alleged breach or fault; or

• impose a professional standard of care other than Utah’s common law standard – that is, same/similar licensure, locality, services and timeframe – except

where the project reasonably requires specialized expertise.

What Utah Code Ann. §13-8-7 Does Not Do

• Does not apply to private-sector design professional services contracts;

• Does not apply to a ‘construction contract’ as deined in Utah Code
Ann. §13-8-1, which would may include contracts between a design-builder and a design professional;

• Does not prohibit indemnity provisions that require a design professional to reimburse its client for costs incurred defending against claims for injuries

or losses to the extent caused by the design professional or those for whom the design professional is legally liable; and

• Does not lower the professional standard of care for design professionals.

In short, going forward §13-8-7 levels
the public-sector playing ield for design professionals by prohibiting provisions which inappropriately transfer risk that the design professional can’t control, which compromise design professional liability coverage or which raise the bar on design professional performance to inappropriate levels.

As for design professional contracts not covered by §13-8-7 – that is, design professional service contracts in the private sector or with design-build contractors
– design professionals should closely scrutinize their contracts to ensure, inter alia, that they can control the risks they are being asked to take, that the contract does not compromise the design professional’s insurance and that their services are judged by an appropriate standard of care. And lest there be any doubt in this regard, design professionals would do well to remember that their contracts are the single most- effective risk management tool they have. n

Craig Coburn and Lincoln Harris are shareholders at RBMN where a main focus of both their practices is counseling and representation of design and other industry professionals on business and professional risk management, claims prosecution and defense and dispute resolution. They can be reached at (801) 531-2000 or https://www.richardsbrandt.com/practice-areas/construction-industry/.

by Craig Coburn and Lincoln Harris

Barbara Melendez Selected as One of 30 Women to Watch by Utah Business Magazine

June 2018
Barbara Melendez

Richards Brandt Miller and Nelson congratulates Barbara Melendez, Shareholder and Immigration Practice Chair, who has been selected as one of Utah Business 30 Women to Watch. Richards Brandt is honored to be associated with Barbara who is a highly respected and valued member of the firm. Barbara’s dedication, expertise and experience are invaluable assets to the firm and the community. We are proud of her outstanding achievements and contributions to Richards Brandt Miller Nelson and the legal community.

 

 

 

 

Law Is Stranger Than Fiction | Episode 13 Outsider

 

good afternoon and welcome to another

00:08

edition of law is stranger than fiction

00:10

I’m one of your co-hosts Steven Bergman

00:12

and I’m your other co-host Barry Shoal

00:15

and we are shareholders at the law firm

00:16

of Richard’s Brant Miller Nelson today’s

00:19

episode takes us back into the realm of

00:21

trademark law where there’s another

00:23

battle brewing over the use of what

00:25

would seem to be a common word Berry yes

00:28

indeed there is a battle brewing over

00:29

the term Outsider utah-based apparel

00:32

company Cool has obtained a trademark in

00:36

the term outsider for certain apparel

00:38

items it has sued industry giant LL Bean

00:43

for its advertising campaign be an

00:46

outsider let me stop you for a

00:49

second so Cool obtained a trademark on

00:52

the word outsider yes for particular

00:55

items of apparel okay so they don’t have

00:57

a general right to the word outsider

00:59

they have it too for example describing

01:01

one of their products for a line of

01:04

outdoor wear yes okay so cool is suing

01:08

LL Bean for trademark infringement

01:10

notwithstanding the fact that LL Bean

01:13

does not carry products manufactured by

01:16

Cool in its stores and they’re suing

01:18

them for using the word outsider yes

01:20

even though they’re not are they

01:23

describing any of their own products as

01:25

outsider products I believe this is more

01:28

of a general campaign encouraging

01:30

consumers to be an outsider by attiring

01:35

themselves in outdoor ware from LL Bean

01:39

Cool is claiming that they might suffer

01:42

financial damage if consumers are

01:44

confused about the source of the

01:45

products based on the outsider campaign

01:47

so Cool is claiming that because LL Bean

01:51

is promoting the use of its outdoor wear

01:55

by saying be an outsider that people

01:57

will be confused as to where to buy

01:59

Cools outsider brand of products and

02:03

that cool owns all rights in the term

02:05

outsider with regard to outdoor apparel

02:07

but now has LL Bean actually used

02:10

the word outsider to describe any of their

02:13

products only I believe in its in-store

02:15

displays okay so in other words wear

02:18

this and

02:18

go outside type of thing wear this so

02:20

you can be an outsider but they’re not

02:22

saying for example buy LL Bean’s outsider

02:25

pants or outsider shirts or

02:26

anything like that correct

02:27

okay and when was this lawsuit filed in

02:31

October of last year and does this

02:35

lawsuit have anything to do with the fact

02:36

that LL Bean is planning to open its

02:38

first store in the state of Utah well

02:40

one wonders only because the

02:43

inaugural LL Bean store will be located

02:46

right down the street from Cool’s

02:48

flagship store in Park City okay

02:50

does Cool have any kind of history of

02:52

aggressively protecting its trademarks

02:55

as a matter of fact yes it’s sued Yeager

02:57

over the use of an advertising campaign

03:00

that urged its consumers to have a Cool

03:05

spot cool as you might know is German

03:08

for the word cool or neat so cool

03:15

the clothing manufacturer is claiming

03:17

that there may be consumer confusion

03:20

resulting from Yeager’s advertising

03:23

campaign as well okay and it’s my

03:25

understanding in trademark law and I

03:27

know you do a lot more trademark law

03:28

than I do that you have to be aggressive

03:31

in protecting your trademarks or trade

03:33

names otherwise you’re at risk of losing

03:35

them is that right that’s correct so one

03:37

could say that in this instance Cool is

03:39

simply protecting its rights by being so

03:41

aggressive couldn’t they one could say

03:43

that okay

03:45

well that’s it for today’s story as I

03:47

mentioned that Barry is an expert in

03:49

trademark and copyright law if you have

03:51

any issues concerning those areas please

03:54

contact Barry or if you have a litigation matter

03:56

concerning trademarks of copyrights

03:58

please contact me and for now this is

04:00

another edition of law is stranger than

04:03

fiction

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