Industry Alerts & Seminars

Our attorneys routinely author legal articles and present on timely topics to clients and industry groups. Below, grouped by legal topic, is a list of recent articles and seminars for your convenience:

Business Law

What Does FINRA Use Fine Money for Anyways? FINRA Releases 2020 Fine Money Allocation Report by T. J. Mitchell (June 2021)
On May 27, 2021, FINRA issued its report on how FINRA allocated monies it collected from fines in 2020. FINRA is tasked with promoting investor protection and market integrity. One way it tries to accomplish this goal is through its enforcement arm: imposing fines on FINRA member firms in the event of their non-compliance with FINRA regulations as well as to discourage future misconduct. Here are the ways FINRA’s 2020 fines totaling $57 million will be allocated.
Click here to read the full story…

2021 SEC Examination Priorities – At a Glance by JHC attorneys Paul Roshka and T.J. Mitchell (March 2021)
The U.S. Securities and Exchange Commission (SEC) Division of Examinations (formerly known as the Office of Compliance Inspections and Examinations) announced its 2021 Examination Priorities. This article informs readers about the key risks, trends and examination priorities the SEC is currently focusing on.
Click here to read the full story…

Business Interruption Insurance by Jim Csontos (March 19, 2020)
Some state and local governmental agencies have ordered restaurants, bars, health clubs, convention and conference centers and many other businesses where large groups of people gather to close. These businesses will suffer a loss of income and this loss of income may then impact the business’ lenders and landlords. An available source of funds to solve this problem is business interruption insurance.
Click here to read the full story…

Small Business Financing, To Lease or Not To Lease by Matthew Sloan for The North Central News (November 2012).

In a tough economy, where traditional financing remains elusive for many small businesses, equipment lease financing is a viable, but little understood alternative. However, it is important to enter into a lease for the right reasons and with the right structure. Consider the following to help determine if equipment leasing is right for your business.

Common Pitfalls Business Owners Should Avoid by Matthew Sloan for The North Central News (March 2012).

This article reviews and discusses common legal issues that business owners face, which, if not addressed correctly, could significantly impact their success.

Construction Law

Contractors- Have You Noticed? Take Action to Preserve Your COVID-19- Related Delay Claims by an attorney, partner with Jennings Haug Cunningham (March 2020)

In the midst of the COVID-19 pandemic, these are several things that every contractor should be evaluating.

New Overtime Rule Brings Changes for Exempt Workforce by Kim Lough Construction Industry Alert (October 4, 2019)

Beginning on January 1, 2020 employers will have to comply with new overtime rule requirements. This industry alert highlights what that means for the construction industry.

Arizona Lien Law Lollapalooza, co-presented by an attorney, for the Arizona Builders Alliance in Phoenix, Arizona (November 2018)

An in-dept voyage into Arizona lien law. Complete with hands-on exercises, actual case studies and discussions about 1) what projects are lienable; (2) how to properly serve a preliminary notice; 3) understanding lien waivers and how to edit them; and 4) the steps required to record a valid lien and pursue it in court.

The Contractor in Distress Call; Your Best Advice by D. Kim Lough for the State Bar of Arizona’s Construction Law Section in Phoenix, Arizona (February 6, 2018)

Advice for the construction lawyer who receives a difficult call from a client facing critical decision making during an on-going construction project.

The presentation emphasized practical legal advice, the avoidance of litigation and need for creative solutions when the client must deal with termination, forced changes to planned means and methods, and surprise scope increases.

Construction Contract Workshop: Understanding Issues in Contract Administration by Jim Csontos for HalfMoon Education, Inc. (January 24, 2018)

A hands-on examination of contract documents and how they are employed by members of the construction team, including issues to address when the contract is negotiated, when the contract is administered and when issues are presented in the field.

Covering the following topics: chain of command issues ; subcontracts; changes and change orders; payments; substantial and final completion ; as well as breach and pitfalls

Subcontract Negotiations and the Savvy Sub by an attorney for ASA’s Contractors Compass (February 2017, page 8).

JHC partner helps subcontractors to understand how to use project buyout negotiations to minimize risk and demonstrate project knowledge, set reasonable expectations and establish credibility.

Arizona Court Declares That Preliminary 20-Day Notices Must be Served by Certified or Registered Mail to Preserve a Bond Claim
by Kim Lough for the Jennings Haug Cunningham Construction Legal Alert (May 4, 2015).

On April 30, 2015, Division 2 of the Arizona Court of Appeals issued an opinion affecting common practices in service of preliminary 20-day notices on projects subject to a public works payment bond.

Op-Ed: New ROC Regulatory Philosophy Triggers Need for Self-Audits by D. Kim Lough for AZRE Magazine (September 15, 2014)

Contractors throughout Arizona are being blindsided by a new administrative oversight role undertaken by the Registrar of Contractors (ROC). The Registrar’s new prosecutorial philosophy toward investigating complaints against licensed contractors places contractors at risk of losing their license for minimal technical violations which may occur even when the contractor is unaware an issue exists. This sea-change warrants a self-audit of your business practices.

Interpretation of Davis-Bacon Act Could Result in Unforeseen Employee Lodging Expenses by D. Kim Lough for ENR Southwest (May 10, 2012).

The United States Department of Labor has begun to interpret the Davis-Bacon Act to require an employer to reimburse employees’ lodging expenses while away from home on prevailing wage jobs. This can create a substantial unanticipated assessment to an employer unaware of this interpretation. In particular, contractors and subcontractors sending skilled workers to federally funded projects may be unaware of this expense.

Creditors’ Rights

Arizona’s Judgment Validity and Renewal Deadline Extended from Five to Ten Years by Alana Porrazzo (August 2018).

Lessor More Protected: UCC Article 2A Analysis Strengthens Resistance to Common Lessee Collection Defenses by John Sinodis for The Monitor, (January/February 2012).

In late July 2011, the U.S. District Court for the Eastern District of Pennsylvania published a decision granting summary judgment for an equipment lessor on various defenses and counterclaims raised by multiple business lessees of telephone equipment. De Lage Landen Fin. Services, Inc. v. Rasa Floors stands as a thorough and recent analysis of the maturing law on the general enforceability of finance leases, as promoted by UCC Article 2A.

The UCC’s Public Policy Favors the Lessor, Come Hell or High Water by John Sinodis for the Lease Enforcement Attorney Network (January 2012).

De Lage Landen Fin. Services, Inc. v. Rasa Floors is well worth study and application by lessors and their counsel involved in leasing litigation. It stands as a thorough and recent analysis of the maturing law on the general enforceability of finance leases, as promoted by U.C.C. Article 2A, recognized by the courts, and reinforced by standard protections for the unique and limited role of lessors (such as hell or high water clauses and waiver of defense clauses).

Leasing in Tribal Land – Understanding Important Issues by Edward Rubacha and John Sinodis for The Monitor (Conference Issue 2011).

Employment Law

How Employers Should Handle Requests for Workplace Accommodationsfor Arizona Business Magazine (November 2018).”

When employees request certain workplace accommodations, it can be difficult for employers to determine when a “reasonable accommodation” request is made, who is “disabled” under the law, and what requests must be accommodated. This article discusses the factors to be evaluated by employers when evaluating accommodation requests.

How to Protect Your Business from Employees’ Social Media Posts for Arizona Business Magazine (September 2018).”

With such easy access to social media, any employee can cause harm to a business at any time. So, what can employers do to proactively manage their employees’ social media activity, both on and off-the-clock? This article provides do’s and don’ts with some guidance on the issue.

Environmental Law

Environmental Law Alert: ADEQ Issues New AZPDES General Permit for the Jennings Haug Cunningham Environmental Law Alert (October 2012).

ADEQ issued a new AZPDES general permit for certain wastewater discharges, making application for such permits easier, more expeditious, and less costly. This alert offers insight into the new process and guidelines.

Equipment Leasing & Finance

Confessions of Judgment: New Year, New Rules in New York by Alana Porrazzo (January 2020)

Significant changes to confession of judgment procedures in New York took effect on New Year’s Day. Creditors must now establish that defaulting debtors have New York residency before attempting to enter confessed judgments against them. This article discusses how the New York COJ practice shifts may affect your business and what is necessary to accommodate these new residency requirements.

Cause to Revisit Liquidated Damages in your Equipment Finance Leases? by Alana Porrazzo (February 2019)

On February 14, 2019, the United States Bankruptcy Court for the Southern District of New York ruled that a type of liquidated damages provision commonly found in equipment leases was unenforceable under Section 2A-504 of the Uniform Commercial Code. See In re Republic Airways Holdings, Inc., Case No. 16-10429 (SHL), 2019 WL 630336 (Bankr. S.D.N.Y. Feb. 14, 2019).

Default Interest Held Unenforceable Penalty: In re Altadena Lincoln Crossing LLC by Alana Porrazzo (September 25, 2018)

A recent federal bankruptcy court decision raises new questions about the enforceability of default interest provisions, creating good reason for lending institutions to revisit the terms of their loan agreements and finance leases. Read here how the United States Bankruptcy Court for the Central District of California disallowed a secured lender’s claims.

UCC Article 9 Changes: A Rose by Any Other Name Would Not Smell as Sweet by John Sinodis for NEFA Newsline (July/August 2013, page 17).

New UCC Article 9 rules are discussed, to assist readers with understanding the reasons for 2010 changes, requirements and what finance institutions need to know about compliance.

Artisans’ and Personal Property Service Liens by John G. Sinodis for ELFA State Law Compendium for Arizona (March 2013).

The article discusses whether it is possible for Artisans’ and Personal Property Service Liens to take priority over the liens of a secured lender or lessor.

Family and Domestic Relations Law

Arizona Human Embryo Ownership by Blake Whiteman for Jennings Haug Cunningham‘s Family and Domestic Relations Legal Update (January 2020)

Arizona Governor Doug Ducey signed into law Senate Bill 1393 on April 3, 2018, codifying into statute Arizona’s disposition of in vitro human embryos within a proceeding for dissolution of marriage. Senate Bill 1393 and its subsequent adoption into A.R.S. § 25-318.03 creates a set of defined rules that may override any In Vitro Fertilization agreements by couples who decide to freeze embryos. This article discusses the law and its implications.

Lawyer liability and Legal Ethics

Truth in Advertising by Joseph Brophy legal ethics column for the Maricopa Lawyer (September 2021)

September’s legal ethics column discusses Arizona’s rules guiding lawyer advertising as it relates to the myriad awards that are available in the profession, ranging from Best Lawyers and Super Lawyers to AV Preeminent ratings by Martindale Hubble.

Judge’s Attendance at Protests or Rallies is Problematic by Joseph Brophy legal ethics column for the Maricopa Lawyer (July 2021)

This month’s legal ethics column discusses the ethical troubles that judges experience when they express political opinions or engage via social media citing recent examples of controversy on the topic occurring in New York and Arizona.

“Reply All” – Part 2 by Joseph Brophy legal ethics column for the Maricopa Lawyer (June 2021)

Last year, this column discussed the potential ethical concerns raised by responding “reply all” to emails where opposing counsel has copied their client (a represented party), but has not given permission for the replying lawyer to communicate with that client. Until recently, every bar association to address the issue prohibits the receiving lawyer from replying all to include the represented party. This article discusses the decision made by New Jersey’s Advisory Committee on Professional Ethics regarding this matter.

“ABA Provides Guidance on Material Adversity and Former Clients” by Joseph Brophy for the Maricopa Lawyer (March 2021)

This month’s legal ethics column discusses the The Rules of Professional Conduct (ER 1.9(a) and 1.18(c)) prohibit (absent a waiver) the representation of a current client with interests that are “materially adverse” to the interests of a former or prospective client on the same or a substantially related matter. However, neither Rule specifies when the representation of one client is materially adverse to another and what should be considered by legal counsel.

“ABA Rule 8.4(g) Struck Down by Federal Court” by Joseph Brophy for the Maricopa Lawyer (January 2021)

This month’s legal column discusses the recent Pennsylvania challenge to the ABA’s adopted Model Rule of Professional Conduct 8.4(g), which was considered and rejected by the Arizona Supreme Court in 2018.

The Lawyer and the Ostrich by Joseph Brophy for the Maricopa Lawyer (September 2020)

Judge Richard Posner once wrote, “the ostrich’s posture is not a seemly one for a lawyer.” To prevent lawyers from assuming that posture, lawyers have duties of inquiry/investigation in a wide variety of situations across many practice areas.
This month’s legal column discusses a lawyer’s duty of inquiry and investigation in a wide variety of situations across practice areas and how this rule is interpreted in various jurisdictions.

“Reply All,” Ethics, and You” by Joseph Brophy for the Maricopa Lawyer (April 2020)

Among the many problems created by the information technology revolution that has taken place in the last twenty-five years, the “Reply All” button must be one of the biggest troublemakers. The button presents potential ethical concerns for lawyers, which are discussed in this Legal Ethics column.

“Federal Judicial Ethics Committee’s Misguided Priorities” by Joseph Brophy for the Maricopa Lawyer (March 2020)

This month’s column questions what is behind the announcement by the Committee on Codes of Conduct of the U.S. Judicial Conference, where fifteen federal judges issued advisory ethical opinions to the federal bench at the January meeting, that it is considering a ban on judges being members of the Federalist Society and American Constitution Society (ACS) because those groups are too political.

“The Ethics of Judicial Relationships” by Joseph Brophy for the Maricopa Lawyer (January 2020)

Rule 2.11 of Arizona’s Code of Judicial Conduct identifies situations that disqualify judges in proceedings because their impartiality might reasonably be questioned—including cases implicating some familial and personal relationships—but it is silent with respect to obligations imposed by other relationships. The ABA recently issued Formal Opinion 488 to attempt to clarify what additional circumstances may obligate a judge to recuse himself. This article discussed the ABA’s Formal Opinion.

“Not All Judges Are Created Equal” by Joseph Brophy for the Maricopa Lawyer (October 2019)

Supreme Court justices are not required to observe the code. According to the Con-stitution, they serve as long as they exhibit “good behavior,” or face possible impeach-ment and removal for “treason, bribery, or other high crimes and misdemeanors.” There is no other oversight or law govern-ing United States Supreme Court justices, save for whatever budgetary constraints Congress may choose to exercise over the high court.

“Arizona Joins Other States in Examining Rules on Partnering With Non-lawyers” by Joseph Brophy for the Maricopa Lawyer (September 2019)

In November 2018, Arizona’s Chief Justice Scott Bales issued Administrative Order No. 2018 – 111, which formed a task force to review the regulation of the delivery of legal services in Arizona, following a similar examination being conducted by the State Bar of California. The examination is looking into whether and to what extent certain legal services can be provided by non-lawyers or by embracing new ways for lawyers to provide legal services, such as unbundled or “limited scope” representation, including representing individuals in civil proceedings in limited jurisdiction courts, administrative hearings not otherwise allowed by Arizona Supreme Court Rule 31(d), and in family court matters. The Arizona task force is due to issue a report and recommendation before the end of 2019.

This article discusses the reasons driving these examinations and potential changes to the legal landscape.

“When Does a Threat of Criminal Prosecution Become Extortion?” by Joseph Brophy for the Maricopa Lawyer (July 2019)

The recent arrest of celebrity lawyer Michael Avenatti raises questions about the ethical limits on an attorney’s threat to initiate a criminal prosecution for the purpose of influencing a civil matter.

While it is generally considered to be unethical for an attorney to present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter, Arizona does not have a rule specific to the issue. However, Arizona Rules 4.4 and 8.4 mirror the ABA Model Rules. The ABA explained in Formal Opinion 92- 363 that the drafters believed that extortionate, fraudulent, or otherwise abusive threats were dealt with by other more general rules (e.g., Model Rules 4.4, “Respect for Rights of Third Persons,” and 8.4, “Misconduct”).

This month’s column discusses these rules, legal ethics and the government’s case against Mr. Avenatti.

“Can a Client Order You to Not Keep a Copy of the File?” by Joseph Brophy for the Maricopa Lawyer (June 2019)

Rule 1.15(d)(4) of the Arizona Rules of Professional Conduct requires that a lawyer deliver to the client any property the client is entitled to receive. Rule 1.16(e) provides that, upon termination of representation, a lawyer must take reasonable steps to avoid foreseeable prejudice to the rights of the client, including delivering to the client all papers and property to which the client is entitled.

Although a lawyer is entitled to keep a copy of the client’s file after the end of the representation, a more difficult question is presented when the client directs the lawyer to not keep a copy of (read: destroy) the file. In March 2019, the New York State Bar Association looked at the issue in NYSBA Ethics Opinion 1164. This article discusses the facts addressed by the NYSBA.

“Why Can’t We Be Friends?” by Joseph Brophy for the Maricopa Lawyer (April 2019)

The Court of Appeals of Wisconsin recently concluded that a trial judge’s undisclosed Facebook connection with a litigant created a great risk of actual bias resulting in the appearance of partiality. This article discusses the ethics surrounding the use of Facebook by judges, and those who may want to become judges.

California Reconsiders Ethical Rules and Legal Business Models by Joseph Brophy for the Maricopa Lawyer (March 2019)

California is taking a hard look at the issue of access to justice as it relates to the delivery of legal services, with potentially important ethical ramifications. For better or worse, California’s ideas have a way of spreading to other states. See why it’s important to pay attention.

My Firm Was Hacked. Now What? by Joseph Brophy for the Maricopa Lawyer (January 2019)

Law firms are not immune from being hacked, and large firms are not the only targets. This article discusses this trend and the ABA’s Formal Opinion 483 issued in October 2018, in which an attorney’s ethical obligations when a data breach exposes client confidential information are outlined.

Manufactured Disqualification of Experts and Counsel by Joseph Brophy for the Maricopa Lawyer (December 2018)

A few months ago, the State Bar of Texas felt the need to issue an opinion prohibiting a lawyer from retaining an expert, or intentionally disclosing confidential information to a prospective expert, for the purpose of attempting to disqualify or otherwise prevent the expert from being used by an opposing party. This article discusses the legal ethics of disqualification of a lawyer or expert in a variety of cases, particularly where the action is considered a very drastic remedy that is to be used sparingly.

This is a Recording – Can Lawyers Record Conversations? by Joseph Brophy for the Maricopa Lawyer (October 2018)

In July, we learned that President Trump’s former attorney, Michael Cohen, surreptitiously recorded his former client on multiple occasions. Two thoughts immediately sprang to mind: (1) recording clients without their knowledge seems problematic from an ethical perspective; and (2) the cast of characters in the Russia investigation are starting to resemble the various lifeforms you would find in the bar scene of a Star Wars movie. This article discusses legal ethics surrounding the first.

Should Arizona Adopt ABA Rule 8.4(g) by Joseph Brophy for the Maricopa Lawyer (August 2018)

May 21, 2018 marked the deadline for public comments to the Arizona Supreme Court on whether Arizona should incorporate the ABA’s model rule 8.4(g) of professional conduct. This article discusses whether this seemingly good idea has a place in Arizona’s Rules of Professional Conduct.

Breaking Up Is Hard To Do: When Partners Leave by Joseph Brophy for the Maricopa Lawyer (June 2018).

When a law partner leaves for another firm it presents the opportunity for all kinds of emotions, disputes and chicanery. The departing partner will often be concerned with their financial well-being going forward and setting up shop at the new firm, which is understandable. However, the members of a partnership owe each other a duty of loyalty and good faith, and as a fiduciary, a partner must consider his or her partners’ welfare, and refrain from acting for purely private gain. This article highlights the constraints imposed on them by virtue of their status as fiduciaries.

Surety & Fidelity Law

Managing and Litigating the Complex Surety Case, Third Edition for the American Bar Association (2018); co-authors of Chapter 12, Navigating In and Around Bankruptcy are Jennings Haug Cunningham partners Joseph Brophy, Matthew Sloan and Chad Schexnayder.

Offering a comprehensive resource for the surety practitioner, this book expertly analyzes the myriad issues that arise in complex surety cases. Chapters explore the challenges that arise in preparation for and trial of a “mega” construction surety case, examining the decisions facing the surety when confronted with litigation involving multiple parties, project locations, claimants, potential sources of salvage, and more. The book also discusses techniques and strategies to effectively handle these complex cases. For additional information or to purchase the publication information visit: here

Identifying Construction Contract Risk and Trending Surety Topics by Chad Schexnayder for the Surety Association of Arizona (January 2018)

AIA Construction Document changes, new case law affecting the industry and heightened contractor risk allocation discussion earmarked for the contracting industry. In addition, the presentation will include a discussion of the evolving law on issues of interest to surety underwriters and surety bond producers.

The Arizona Court of Appeals Rejects Bad Faith Claims Against Little Miller Act Sureties by Chad Schexnayder and R.J. Lamb for the Surety & Fidelity Law Committee Newsletter (Winter 2017, page 8).

JHC attorneys review the recent decision of the Arizona Court of Appeals in S & S Paving & Const., Inc. v. Berkley Reg’l Ins. Co. that held that a surety on a Little Miller Act payment bond may never be sued for bad faith. This article discusses how this ruling confirms the limited scope of the oft-cited decision of the Arizona Supreme Court in Dodge v. Fidelity & Deposit Co. of Maryland, a decision frequently encountered by surety attorneys across the country.

The Surety Underwriters Desk Book (re.2016) for the American Bar Association by the Fidelity and Surety Law Committee.

Originally written for the construction surety underwriter, the Desk Book has gained popularity amongst claims professionals and other organizations, because of its value as a quick reference source for law in a broad range of jurisdictions.

New Bern Riverfront Development, LLC V. Weaver Cooke Construction, EAVER COOKE, LLC: Can the Surety Really be Liable When the Principal is Not? by Joseph Brophy and John Fouhy for the Surety & Fidelity Law Committee Newsletter (Winter 2017, page 6).

JHC partner Joseph Brophy and Travelers claims counsel John Fouhy discuss this 2014 bankruptcy court decision, which provides an important example of how courts can reach the wrong result by narrowly focusing on bond language without considering or understanding the broader suretyship context in which that language must necessarily be read and understood.

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