Divorce, estate planning, nevada

Estate Planning and Divorce: What to Keep in Mind

Here at Clear Counsel Law Group, we make sure all of our clients know how important estate planning is. While it is daunting to plan for the unexpected, we have all too many probate cases where families disagree over what the deceased would have wanted, but without something in writing, there is only so much attorneys can do. For instance, if someone’s grandmother intended to leave one specific grandchild her home but never put anything in writing, it is unlikely that the home will end up with that grandchild when there are other heirs. With an estate plan in place, the house will end up in the right hands. But even a good solid estate planning might need to periodically updated.

For example, over half of all marriages sadly end in divorce. No one ever thinks it will happen to them, yet it does.


How Divorce Affects an Estate Plan

We have seen several cases where someone passes away at an intermediate stage of the divorce process, before the divorce becomes final. While it would seem rather obvious that a person divorcing their spouse would not want their estranged partner to inherit all of their assets, unless the divorce is final, a spouse is considered a spouse under the eyes of the law. Therefore, even with divorce papers on file, unless the ink is dry, the soon-to-be ex-spouse has all the same rights to inherit as a spouse who was not divorced.

In addition to divorce papers, when couples separate they are likely financially tied in even more ways than they realize. Situations often come across my desk where life insurance policies are designated to a future ex-spouse. Fortunately, life insurance designations are automatically revoked upon divorce in case someone forgets to amend. But even so, life insurance policies with revoked beneficiaries often go to a decedent’s estate, which might then end up in the hands of that same divorcing spouse. Not only that, but sometimes married couples with joint bank accounts forget to remove an ex-spouse who then drains the account upon death with no regard for children or other intended beneficiaries1)This is not an exhaustive list of examples. Some spouses never legally divorce but live for 30 years completely separate and apart, practically forgetting they were even married in the first place. But, the Nevada probate courts are crystal clear on the issue: if two people are legally married, the spouse inherits in the exact same manner as a spouse that never spent a day away from her partner. We have even had cases where a decedent “married” twice and the legal wife and the cohabitating wife were left to duke it out. What a mess this can cause, financially and emotionally!


Divorce and Incapacity: A Lesson from Recent Headlines

In addition to a divorcing spouse inadvertently inheriting an entire estate, what about a divorcing spouse who becomes incapacitated? This situation arose very publicly this month with “Keeping up with the Kardashians” star Lamar Odom. The former NBA player was found comatose and required someone to make medical decisions that he could not make while unconscious. Lamar was in the midst of a nearly-but-not-quite-final divorce from Khloe Kardashian. Because the divorce is not final, Khloe is the spouse for all intents and purposes, as if the couple were headings towards happily ever after. It is unlikely that a person facing an impending divorce would think to designate a medical power of attorney once they file for divorce, but this is important!

Strangely enough, the tabloids are reporting that Khloe and Lamar have decided to give their relationship another shot after Lamar’s near death experience. But, I do not suspect that this is the typical outcome. Although we never really anticipate this specific situation, someone whom you are getting divorced from is probably not the person you want making medical decisions on your behalf, much less inhering under your estate.

As estate planning attorneys, we regularly check in with clients to update their plans. Any new homes purchased, accounts acquired, children born, or even a new job with a 401k plan can warrant updating an estate plan. I mention to all estate planning clients that not only should they contact me for changes in assets and when they get divorced, but they should contact us the minute they decide to divorce so we can help them adjust their estate plan accordingly. In some situations, it is even appropriate to insert a divorce contingency in certain estate planning documents to make clear what should happen if it appears parties are headed towards divorce.

We can never plan for the unexpected, but we can certainly try. Contact our attorneys today for a free consultation to set up an estate plan, including a plan for whom should make decisions on your behalf if you ever become unable.

Footnotes   [ + ]

1. This is not an exhaustive list of examples
Republican debate, Trump, rubio, cruz, Abraham Lincoln, cnbc

Your 3rd Republican Debate Recap (Full of Clips!)

I asked a potential Republican caucus-goer this morning if she had watched the debate, her response: “No way, I’m just tired of all that stuff.” When asked to explain what she meant, she stated that all the name-calling and antics have really turned her off to the process.

Apparently, that message has gotten through to our Republican candidates! And not a moment too soon!

This was, by far, their best collective performance. It is as if they watched the first Democrats’ Debate1)Why they keep calling it the “Democratic debate” is beyond me, and realized that a rising tide lifts all boats. Other than Mr. Kasich and Mr. Bush, both of whom we will get to in a moment, everyone came out smelling like roses. Politics is probably my third favorite sport after baseball2)Ya gotta believe! #LGM and football3)It is not clear why the sports media has not caught on to my titling this weekend’s Packers at Broncos affair as “Super Bowl 49.5”. Also, when was the last time Peyton was a dog at home?? Middle School?? I digress.., but the previous Republican debates were difficult to watch with all the bickering. Not so this time. Correction, mostly not so this time.4)stay tuned

The CNBC put clips of the debate up on their youtube channel, and shockingly, none of them are of the candidates ceaselessly mocking the moderators (Btw, our Youtube channel is way better).

Lucky for you, I found them. Get ready for some fun.


The Best of the Republican Debate Clips

Mr. Cruz won the debate right here:

I saw the Frank Luntz on with Megyn Kelly after the debate, and he said this was the highest scoring debate line he had ever seen. Pent up frustration, anyone? To the credit of the CNBC folk5)it is not clear me who watches this channel, once they took this verbal thrashing, the moderators stopped with the silliness and got back to policy. I, for one, felt badly for them.


Finally Now, the Trump Clips from the Republican Debate


Mr. Kasich is clearly out of his league here. It was only a matter of time before his Lehman history came up for discussion. As The Wire teaches us, “If you come at the king, you best not miss.”

A quick thought on Mr. Trump. Yesterday was the first time I thought that he had a real chance at this thing. He showed an immense amount of political dexterity in completely overhauling his approach. He saw that Mr. Carson overtook him in Iowa, and instead of doubling down on the bluster, he backed off a bit. He was significantly more kind than he has been in the previous debates, and in particular, I appreciate his change in tone over immigration. It is one thing to want to discuss out immigration policy, certainly nothing offensive by talking about it in the hypothetical. But there is absolutely no reason to demonize our Latino brothers and sisters, and last night he finally stopped. I just want to thank him for elevating his dialogue.

Now that I got that out of my system, let’s watch Trump be Trump.

I love the “Right” after each assertion. He’s too much.

Of course, like any good entertainer, he knows how to close:

I’m pretty sure (not completely) that Mr. Trump is correct here. I recall the debate being announced as 3 hours long. Why lie, CNBC?

Did Trump win the online poll? Of course, like always. Hard to discount 300,000 votes.


Mr. Rubio vs. Mr. Bush

I was kind enough yesterday to explain to Mr. Rubio that in order to win the nomination, he needs to follow the Obama model.6)still waiting for my “Thank you.” I have yet to understand why folks are so interested in Mr. Rubio’s Senate attendance. It is one thing for folks that dislike Rubio to use it as further evidence that he should not be President. Mr. Bush, however, did not play this correctly:

To Mr. Rubio’s credit, he was ready. Call him all the names you like, but Mr. Rubio consistently has been prepared in this election season.

Of course, he had some thoughts on the main stream media to share:


How attacking the media will help Mr. Rubio in the long run is not clear. They are a sensitive bunch. We have quoted Mark Twain previously about the risk in arguing with folks that buy ink by the barrel. Yet, attacking the media has worked great for Mr. Trump7)Mr. Trump is smart to attack selected members of the press while calling others “Terrific”. This should be distinguished from categorizing all of the main stream media as biased, so we’ll see.


The Phenomenon That is Mr. Carson


I have never heard this distinction made before.

The moderators had some more gotcha material for Mr. Carson as well, which we don’t have time for8)like we care about his previous endorsements. Today he published his tweet which encapsulates his appeal to his fans:

What that has to do with running the military, I don’t know. But he seems like a very nice man.


Mr. Christie May Have Won

His campaign needed a shot in the arm, and Mr. Christie brought his A game9)I am not evaluating his policy proposals, just debate performance. I have yet to see a politician win a national election running on cutting entitlements.

He had a few great moments besides this, yet, the voting public seemed not to notice or care. See the Drudge poll above. Luckily for Mr. Christie, the Gray Lady strummed up some controversy:


Would the Vegas-hating10)and rat infested NY Times actually publish such a piece after all the candidates called the media biased last night? Are they that tone-deaf? Yes.

Mr. Christie, your thoughts?

Ms. Fiorina, Mr. Huckabee, and Mr. Paul also did pretty well. Unfortunately, with ten people on stage, our coverage can only get to so much.

Hopefully, by the November debates, we can divide the candidates into groups of three so we can actually get more than 10 minutes of dialogue per candidate. They should have Sen. Graham moderate!


The Washington Post (The Fix, in particular) annotated the debate, they do great work.

This Gawker clip is amazing. Mr. Rubio11)I, by the way, am younger than Mr. Rubio in this clip and or Mr. Bush should check out William Manchester’s The American Caesar.  Chiang Kai-Shek had quite the influence on the Korean War if they only care about his influence on American politics.

And you can watch the full debate below:


Footnotes   [ + ]

1. Why they keep calling it the “Democratic debate” is beyond me
2. Ya gotta believe! #LGM
3. It is not clear why the sports media has not caught on to my titling this weekend’s Packers at Broncos affair as “Super Bowl 49.5”. Also, when was the last time Peyton was a dog at home?? Middle School?? I digress..
4. stay tuned
5. it is not clear me who watches this channel
6. still waiting for my “Thank you.”
7. Mr. Trump is smart to attack selected members of the press while calling others “Terrific”. This should be distinguished from categorizing all of the main stream media as biased
8. like we care about his previous endorsements
9. I am not evaluating his policy proposals, just debate performance. I have yet to see a politician win a national election running on cutting entitlements.
10. and rat infested
11. I, by the way, am younger than Mr. Rubio in this clip
Rubio, GOPdebate, trump, CNBCGOPdebate, carson

On Mr. Rubio and his Election Chances

Wednesday 28 October is the “Economics” debate for the Republican Party1)As opposed to the previous debates? Yes, I know. Contain yourself. Lots of the hot-take pundits see this as Jeb!’s2)Say what you will about Mr. Bush, but he is a gift to all of us who enjoy a little syntax humor.  last stand. And they may not be entirely wrong. The big money folks got had by the Karl Rove crowd in the last election; as to what happened to the hundreds of millions of dollars spent to “defeat” President Obama has yet to be explained. Though none of us will ever forget that amazing clip of Karl Rove freaking out on the Fox News screaming that the election results were wrong, as if his livelihood depended upon it or something. These big money folks didn’t acquire this kind of wealth by repeating expensive mistake-investments over and over again, so therefore, it is fair to presume that Jeb! is on a shorter leash than his establishment cohorts from 2012.

When it comes to Mr. Carson and Mr. Trump, each has made it clear why people should vote for them through their anti-establishment message. Jeb! has yet to create a compelling narrative. He seems like a nice enough man, but cautiously criticizing President Obama has not created a sufficiently compelling narrative to get people to vote for him. He has run a campaign as if he wants to be trustee of the federal government, which I would distinguish from leading nation’s people into the 21st Century. I do not envision3)of course I could be wrong, this comes from the cat that thought Scott Walker had a good shot at this thing. Hey, don’t judge. Nate Silver did too, and he is much better at political prognostication than most a scenario in which Mr. Bush becomes the front runner once again.


Which brings us to Mr. Rubio

Mr. Rubio is the establishment’s next best chance to win the nomination. I began to take him seriously after seeing this clip in which he discusses the Black Lives Matter movement in a cogent way:



I am not convinced any of his rivals can do that, by that I mean speak about the BLM movement without making me cringe4)I am not claiming that his answer was perfect, just that it wasn’t horribly offensive.


Now watch this:


Personable, right? At risk of irritating nearly every reader, there are easy comparisons to draw between Mr. Rubio and Candidate Obama from 2008. From age to speaking ability to attractive personal story to relatively little national governing experience, there are undeniable similarities5)Obviously, there are different policy proposals.


But can Mr. Rubio win?

Now let us recall 2008 for a moment, in particular the Democratic Primary. If only those that caucus experience had voted in the primary process, then Sen. Clinton would have won easily. It was Mr. Obama’s ability to draw first time voters into the process that catapulted him to the White House6)and his subsequent inability to keep those voters engaged that left him with a Republican controlled Congress.

Eight years hence, each party now has a similar dynamic. A poll of Iowa democrats came out over the weekend showing Sec. Clinton with a commanding lead in Iowa:


The Bernie folks, rightly or wrongly, take issue with the methodology of the poll because the sample size is made of democrats that have participated in the past two Iowa Caucuses. The Bernie crowd believes that the campaign is mobilizing first-time voters in a similar manner that Mr. Obama did in 2008. There is no method (as far as I know) of polling first-time voters7)even if you could, does it make sense to rely on them?. If Bernie is going to win, first-time voters will be the only way.

..This applies to Mr. Rubio as well, as you will see. Buzzfeed wrote up a great summary of the dissonance between how the media portrays Mr. Rubio (“The Frontrunner” “The Republican Savior”) and his disappointing poll numbers. The media narrative for the Republican nomination operates under the assumption that Mr. Carson and Mr. Trump will no longer be in the race come caucus time8)If you can go on a book tour and improve your poll numbers, why drop out?. To some degree, this is valid. Recall that at this time in 2012 former Godfather’s Pizza CEO Herman Cain was the big front-runner for the nomination, only to leave hastily once information about his personal indiscretions began to leak out in November. Stuck in the forest of the day-to-day politicking, it is difficult to remember that the election is still more than a year away. Plenty of time for plenty more to happen.


Immigration and Mr. Rubio

Regardless, this tea party flavor-infused Republican party has very little tolerance for moderation on key issues, one of which is immigration. Mr. Rubio tried to lead a bipartisan coalition to pass an immigration bill, only for it to blow up in his face politically, and he has been running away from it ever since.  The Republican party may have hit a Catch-22 where the candidate needs to take a hard line on the immigration, but that hard line will prevent the candidate from receiving enough popular support to win a national election.

Is there a way out of this dilemma? Sure, but it will not be easy. Certain candidates are taking the easy road on immigration by playing off of people’s fear of the unknown. Mr. Rubio does not have to do that, but he does need to signal to those scared of a massive immigration influx that he understands/will address their fears. In the modern media age, how does one hold people’s attention long enough to make such a nuanced point? Mr. Obama was forced into making a speech on race after Rev. Wright upset much of the establishment with his pointed remarks, Mr. Rubio should follow the same course. Instead of attempting to avoid the matter, he needs to face the immigration fear-mongers head on. Leaders Lead.


How Mr. Rubio takes the crown

Resolving the immigration issue is a necessary, but not sufficient condition for Mr. Rubio to win. To cut to the chase, he needs more votes. Take a look at this poll:


To be frank, the needed votes do not look like they are coming from the Republican electorate reflected in the polling we see dominated by Mr. Trump and Mr. Carson. He needs, like ’08 Candidate Obama and ’16 Sen. Sanders, to bring more first-time voters to the polls, possibly a lot of them.

Luckily for Mr. Rubio, there are a lot of potential voters out there just waiting to be inspired. Two-thirds of the electorate did not vote in the 2014 mid-term election. Think about that for a moment; significantly more than half of the electorate was so turned-off to the political process that they could not even bother to vote last year.  Don’t believe me?

The establishment politicians like to blame the voters for their apathy, but that is just a lame cop-out. Voters need, and want, to be inspired. Not since President Bush’s message of “Compassionate Conservatism” has the Republican party tried to inspire the populace9)nor have they won the Presidency. Government spending (seemingly the only issue of the recent, pre-Trump Republican party) speaks to such a small part of the voting public, that it just seems nonsensical that this is the dominate topic of conversation for our Republican friends.

Here’s a neat fact, more than 50% of the American workforce earns less than $30,000/year. Do you think these folks care about the government budget? They, and probably up to 80% of the population want to know how, if we give you our vote, you will improve our lives.

What Ms. Palin dismissed as that “hopey changey stuff” is exactly what you need, Mr. Rubio. This is not a contest over whom can hand out the most entitlements to the voters10)as it has been characterized by previous candidates, but a challenge over whom can inspire. Think Reagan, think Kennedy, think Lincoln, and rise above the cynicism. There is no other way to get those first-time voters to the polls.

I can only prescribe what to do, not how.  There’s a big difference between winning and not losing.

The Republicans have spent too many years now telling us what they aren’t. Now is the time to tell us what you are. Go big or you’ll be heading home, in defeat. Best of luck, Senator.


Footnotes   [ + ]

1. As opposed to the previous debates? Yes, I know. Contain yourself.
2. Say what you will about Mr. Bush, but he is a gift to all of us who enjoy a little syntax humor.
3. of course I could be wrong, this comes from the cat that thought Scott Walker had a good shot at this thing. Hey, don’t judge. Nate Silver did too, and he is much better at political prognostication than most
4. I am not claiming that his answer was perfect, just that it wasn’t horribly offensive
5. Obviously, there are different policy proposals
6. and his subsequent inability to keep those voters engaged that left him with a Republican controlled Congress
7. even if you could, does it make sense to rely on them?
8. If you can go on a book tour and improve your poll numbers, why drop out?
9. nor have they won the Presidency
10. as it has been characterized by previous candidates
minimum wage, labor, nevada, labor commissioner, court

Nevada Courts vs. The Labor Commission, RE: Minimum Wage

A recent decision by a district judge in Carson City indicates that Nevada courts are willing to overrule Nevada’s government agencies in order to protect the state’s workers.


Voters increased the minimum wage by referendum in 2006

In 2006, Nevada voters voted to amend the Nevada Constitution’s minimum wage provisions. Article XV, Section 16 now states employers must pay a wage of not less than $5.15 per hour if the employer provides health benefits of $6.15 per hour if they employer does not provide health benefits. The minimum wage is actually $7.25 per hour without providing health benefits and $8.25 with health benefits to comply with the federal minimum wage. The Nevada Constitution states that if the employer chooses to pay the lower wage and offer health insurance they cannot charge more than a certain portion of the employee’s pay. “Offering health benefits within the meaning of this section shall consist of making health insurance available to the employee for the employee and the employee’s dependents at a total cost to the employee for premiums of not more than 10 percent of the employee’s gross taxable income from the employer.” Nev. Cons. Art. XV Section 16(A). The language seems clear, right? Apparently not.


Where there is the slightest bit of ambiguity, a lawsuit will soon follow

Of course, employers would want to interpret this provision to mean that they could charge employees for health insurance up to 10% of all gross taxable income, including tips and other gratuities. It’s not an illogical interpretation since tips are a large part of some employee’s income and taxes must be paid on tips and hourly wages. But, the problem is, the Constitutional language clearly states that the 10% calculation only applies to gross taxable income “from the employer.” It is these three little words that spurred one big lawsuit.

In Hancock v. the Nevada Labor Commissioner, the Plaintiff challenged the Nevada Department of Labor’s implementing regulation which stated that “gross taxable income” for the purposes of calculating health insurance costs included all income reflected in a W-2 including “tips, bonuses, and other compensation.” NAC 608.104(C). The Plaintiff, Mr. Hancock, argued that the Constitution means what it says: that the only income that can be considered for calculating the cost of health insurance is that income from the employer. The Nevada Labor Commissioner argued that the language of the Constitution really meant “all income attributable to the employer” including tips which are earned only because the employer provides the job. The Court found that the language was so clear and that the Labor Commission wanted to simply write out the phrase “from the employer” which was not within their rights, or even the Court’s rights to do. The Court noted that bonuses or other compensation could certainly count as part of the 10% calculation if the employer pays them, but that tips do not come “from the employer” as the language requires. Notably, the Court pointed out that finding tips to be a proper part of the calculation for health insurance costs would go against the whole point of the amendment which was to provide cost effective health insurance largely at the expense of the employer.

The Labor Commission’s position was not unreasonable, it was just wrong in light of the plain language of the Constitution. As the Commissioner pointed out, not including tips in the 10% cost of health insurance provides a great advantage to tipped employees that non-tipped employees do not receive. In Las Vegas, tips contribute much to the income for so many jobs, that I have to agree, the Constitution’s language does provide an advantage to tipped employees, who often make much more money than strict hourly or salaried employees. As a former cocktail waitress, I can vouch for this. It is unlikely the voters were aware of the ambiguity when the Amendment was voted upon at the polls. Tips are part of income for which taxes have to be paid, so it is unclear to me why the Constitution would make such a distinction. On the other hand, tips can be unreliable so maybe the idea was that people can only afford to pay insurance based on income that’s guaranteed. But in a right to work1)some might say “fire” state, no income is really guaranteed…

A ruling such a this is a huge deal in Nevada with so many casino dealers, casino hosts, cocktail waitresses, bartenders, valets, bellhops, and countless other tipped jobs who make up such a huge part of our labor force. I suspect that casinos and other employers of these job categories will do some major lobbying to get the Constitutional amendment changed to better suit their financial needs. A more inclusive definition of income means that employers can charge employees more and pay less for health insurance. I assume that 10% of a minimum wage salary does not entirely cover the cost of health insurance these days, so any additional money that employers can collect from their workers would directly benefit their bottom line. Based on the plain language of the Constitutional amendment, the judge got it right. Plain language rules over all else, right or wrong. For now, the regulation cannot be enforced.


The Labor Commissioner lost on a second issue as well

A second regulation, indicating that employers only had to “offer” health insurance to lower paid employees, rather than actually “provide” it was also declared invalid. NAC 608.100(1). The Plaintiff argued that the whole point of the Constitutional amendment was that employers need to “provide” health insurance, not just “offer” it. The Labor Commission argued that “offering” insurance is “providing” it and all that they were required to do was make health insurance available. The Court disagreed and found in favor of the Plaintiff noting that the amendment requires employers to “provide, furnish, and supply” health insurance rather than just offer it to ensure that employees are in fact insured. As such, the regulation was also declared invalid and its enforcement postponed.

Both of these decisions relied on strict interpretation of the constitutional amendment, and in my opinion the Court made the right decision. When the language is clear, the amendment must be applied according to what it says.

But it is interesting that the Labor Commission would create implementing regulations that were somewhat brazenly contradictory to the plain language of the Constitution. We will keep an eye out for any appeals to see how this plays out.

Want to learn more? KNPR recently had a nice discussion.

Footnotes   [ + ]

1. some might say “fire”
demdebate, vegas, hillary, bernie, democrats, democratic, wynn, cnndebate

Behind the Scenes Photos from the DemDebate

“Enough with the damn emails” is right. The punditry spend the last 12 hours telling you who won the debate (stop arguing and just agree with them already. They know best cause they are the ones on the TV. Duh.)

Yet again, the online polls contrast greatly with what the talking heads are telling us. Is it possible that the Chris Matthew’s crowd desires different characteristics in their candidates than the voting public? Will the punditry ever notice or care? How does someone win a debate if only the people on the tv thinks she did? Lucky for us, they still have about 30 more of these to figure it out.

CNN was kind enough to allow your humble blogger to join in the fun from the press scrum. I spent much of the time before the debate outside the hotel with the activists hopefully capturing the feel of the first DemDebate.

Not one person rejected my request for picture, so thank you all.

Now, on with the show!


Pre Demdebate from Inside the Press Area

No, contrary to popular belief, the press is not permitted in the debate hall itself. This is as close as we got. And by close, I mean to each other. I think I left my complimentary Wynn mug!


This here is the spin room, a few hours before the scrum. Keep this picture in mind for later.

Our new friend Sammy, who has already covered more debates in person than I have.

Another shot of the spin room.

Thefacebook had a lounge inside of the spin room. Them employees live in serious fear; I had to ask three people before someone would answer a question. After responding with boilerplate boringness when I asked him why thefacebook is so involved with politics now, I asked if they only planning on partnering with cable news until they have their own cable channel, to which the facebook spokesman responded with a terse “Nice try.” Whatever that means.

You wouldn’t guess from TV that all the stations broadcast from right on top of each other. That’s Andrea Mitchell on the left. Never found Mr. Greenspan though (And oh did I ever want to).


Pre DemDebate from Outside the Wynn

Hillary supporters cheering outside of the Wynn 4 hours before the debate. Someone told me they had been there since early in the morning, though I cannot confirm.

Affable Hillary supporters photographed around the LV Strip.

The Nurses Union was not kidding around. Above are pictures taken in front of the Fashion Show Mall, pre demdebate.

“We got a public display of democratic socialism…code red!”

A selection of Bernie fans from the street. Also people who drive 6-figure cars for Bernie!

Sorry I forgot one.

A special thanks to our friends at Metro for keeping the event running smoothly. These two officers were kind enough to pose.

Team Hillary came out in force as well! How the mariachi band played with such good tone on a pedestrian bridge on the Las Vegas Strip is beyond me. They were terrific!

Yes, there were counter-rallies on the surrounding pedestrian bridges! “More debates now?” May we at least have one first?


Post DemDebate, from Behind the Curtain

Who can come up with the hottest take the fastest?? Ready, Set…Go.

Reporters were literally running to the Spin Room upon Hillary’s last word. My toe still hurts.

That’s our friend Sammy interviewing Ed Schultz, now a surrogate for Bernie.


Oh the mainstream media.

You may remember Van Jones from the few minutes he spent with the Obama administration. He’s getting good at this TV punditry business. Bet it pays better than social activism.

Action shot from inside the spin room.

Note: if you want to be scolded by an the MSNBC producer, take photos like this while Chris Matthews is on air.

That John Depodesta, Chairman of Hillary for President. He did not have much spinning to do.

I heard someone ask Don Lemon how he keeps that figure of his. He responded “brussels sprouts.”

I was thankful for the Funny or Die folks for coming, they were some of the few that understood the appropriate amount of gravity necessary to cover a debate for an election more than a year away. Unfortunately, this is a family friendly blog so I cannot repeat her question for Sen. Gillibrand (of New York. She actually won Hillary’s seat.)

Chairwoman of the DNC.

The spin room stampeded toward Bernie. The cat from “Insider” promised me he would ask Bernie “What are you wearing?”

The good Reverend reminiscing about campaigns past.

You cannot have a Vegas spin room without Wayne and the Goodmans!

That’s friend of the blog (he wouldn’t agree, but then again, he aint writing this) Jon Ralston (if that is his real name) on the MSNBC with Chris Matthews and the person whose name I won’t use because she tweets nasty thoughts about our fair city before going back to her fiefdom.

If I would have caught the spelling error at the time, I would have offered cash for that hat.

Lincoln! No..not that Lincoln.


And of course, Trump loomed large over the whole event..


wrongful death, tony stewart, nevada, las vegas, speedway

How the Tony Stewart Wrongful Death Case Would Turn Out in Nevada

I am sure that most of you have heard, at least in passing, about the horrible accident that took the life of race car driver Kevin Ward Jr.. Because the case has gotten so much play1)for better or worse in the press, I thought it might be an opportune time to apply the known facts of the incident to Nevada law so our readers have a better idea how a wrongful death tort works in practice.


What Happened

You should watch the cellphone video yourself and make your own determination of the facts (Warning: Graphic.). Ward died shortly after being hit by a race car that was driven by Tony Stewart.

On August 9, 2014, Ward and Stewart were racing winged sprint cars, which are the unusual looking buggy-like vehicles that have oversized spoilers on their roof and hood.2)Source They were racing on a short dirt oval track in the town of Canandaguia, New York.

Ward’s car crashed while the cars of Stewart and Ward were next to each other, possibly as a result of a relatively minor collision between the two. Ward exited his car and walked toward the middle of the dirt racetrack while the other race cars were still driving. Since the racetrack is a short oval, it only took about 22 seconds for Stewart’s car to come back around to where Ward was walking and pointing in the general direction of Stewart’s approaching car. It was then that Stewart’s car hit Ward and knocked him further down to the ground.



A Little Background on the Cars/Track/Drivers

The race involved 360 Winged Sprints; “360” refers to the cubic inch iron block size of the engine, which produce between 700 and 800 horsepower; the vehicles are light, typically less than 1,475 pounds, which results in a very powerful and light vehicle. For comparison sake, the top selling small car for 2014 was the Toyota Corolla, the mid-range LE model of which weighs 2,855 pounds and has 132 horsepower.

The oval track is 1/2 mile in total length, which just about double the length of a high school 400 meter track. The track appears slightly sloped with the outside being a little higher than the inside of the track; it is otherwise flat. In the middle of the oval, there are very few obstructions preventing spectators or racers to see the opposite side of the track.

It was nighttime and moderately well lit. It did not appear as well lit as a baseball park at a good community field, but lighting was sufficient to show many details from the stands on the opposite side of the oval.

Tony Stewart was 43 years old at the time; he was and is well known and a very experienced and successful NASCAR and sprint car racer. Kevin Ward Jr. was a local 20 year old sprint car racer who graduated from a South Lewis Central high school. His high school is located in the small town of Turin, New York, which is just a two and a half hour drive away from Canandaigua.


The Scope of Our Discussion

This is purely a hypothetical because it is an analysis of the claims of Ward’s estate and his decedents if the accident occurred in Nevada.

There are persons who may claim that Tony Stewart may have intended to harm Ward, but that issue will not likely prevail and will not be addressed here. The issues addressed here are whether Stewart’s actions were negligent, regardless of whether he intended on intimidating Ward or not. Next, even if it can be proved that Stewart was negligent, Ward was almost certainly negligent by placing himself in harm’s way through his actions of walking towards moving race cars during an active race. What would Ward’s negligence be and how would it affect the claim of his estate and heirs?


The Relevant Wrongful Death Law

In order to succeed on a wrongful death action in Nevada, a party must prove that “the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another.”3)NRS 41.085. A legal cause is a “cause which is a substantial factor in bringing about the injury.”4)Nevada Jury Instructions – Civil 2011 Edition Inst. 4.16; Cnty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 759, 961 P.2d 754, 760 (1998).

Since wrongful death is a negligence claim, the family of the person who passed away must show that the “tortfeasor,” the person alleged to have caused the death, was actually negligent. The Nevada Supreme Court held that in order to demonstrate negligence the plaintiff must show:

(1) there was a duty owed;

(2) there was a breach;

(3) causation; and

(4) damages were suffered.5)Scialabba v. Barndise Const. Co., 921 P.2d 928, 930 (Nev. 1996) (citing Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 [1991]


The determination of duty is adjudicated by the court6)Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008). The remaining issues of negligence are fact intensive for a jury to decide.7)Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993).

In Nevada, a defendant may assert a defense that the injured or deceased plaintiff was also negligent and the claim should be reduced by that percentage of negligence or eliminated.8)(NRS 41.1410). Nevada is a state that prevents recovery completely only if the plaintiff was more than 50% at fault9)Id.. If the plaintiff is 50% or less responsible for the incident, s/he may recover damages reduced by his or her share of the negligence.


How Does Nevada Law Apply to This Accident?

At this point, there are a number of facts that are not known that may be found through discovery in litigation. Aside from background information about the track and race, the only real piece of evidence available for analysis is the 52 second video taken by a cell phone of a witness. Other videos may exist as taken by other witnesses, Canandaigua Motorsports Park, or the organizers of the race, which has videos of other races on their website. We do not have the testimony of any depositions from Stewart, other racers, and other witnesses. They may be able to provide some important facts that we do not have. The opinions and testimony of experts will likely be required to explain to a judge or jury safe practices of drivers, track operators, and race organizers.

The rules of the Canandaigua Motosports Park and Empire Super Sprints also provide useful standards for determining the duties of the operators, organizers, and drivers. Under Section B.12 of Empire Super Sprints 2014 Rules of Conduct and Procedure, it states:

If there is an accident, the field will be restarted with the car or cars causing the restart, plus any stopped car, going to the rear of the field.


The rules leave much to be desired, for example, they do not define accident, restart, and or the procedures of a restart. The rules make multiple references to colors of flags indicating actions, but do not state what flag is flown after an accident to indicate a restart. They also do not state what actions are to be taken by the drivers upon notice of a restart. If the flag person communicated to the drivers that there was an accident, or just that there is to be a restart, then the drivers have no reason to be racing, driving quickly, or passing one another because rule B.12 also states that, except for those involved in the accident, the order of racers will be preserved for the restart. In the beginning of the video, there is a person on a raised stand near the spectator bleachers who has multiple colored at his feet. If the race organizer or director did not properly train its employees on how to respond to an accident, they may be subject to liability as well.

It makes sense that a restart was communicated to the drivers after the accident because in the first 13 seconds of the video, which was before and immediately after the crash, many of the racers traveled on the far outside of the track on the straight portion after the turn (one car passed just after the collision and while Ward’s car was still moving). After the first 13 seconds, approximately 18 cars can be seen in the foreground passing between Ward and the inside of the track prior to Stewart’s car hitting Ward, most of which appear to be much closer to the inside of the track than the outside. Only 3 more cars passed after Stewart’s, immediately after which a waiting ATV and truck quickly entered the track, which indicated that the people waiting to help Ward were probably able to see that these last 3 racers were the last to enter a line for the restart. According to the race results, there were a total of 22 racers. This makes a total of 24 cars, including Stewart’s and another that passed Ward’s car after the first collision. It is quite possible that a restart flag did not go up until after the first two cars passed the flag position and had to pass the accident scene twice.

Assuming that a restart was communicated, this shows three big reasons why a driver should have been traveling slowly. First, the cars should slow down and drive to avoid any stopped or disabled cars. There was not much dust to prevent visibility, the track was small, and the visibility out of the side of a sprint car is quite good; thus, a racer should easily be able to see a stopped car even from the opposite side of the track and on the approach sufficient to be able to avoid it.

Second, the cars had to be slowing down because they would presumably have to stop for the line-up in preparation for the restart. All three of the cars that came after Stewart’s second collision drove past less than five seconds later; they were not driving quickly and one was moving so slowly you can almost read the words on the side of the tires.

Third, there was no reason to hurry because the order of the racers is preserved unless you are Stewart and Ward, both of whom were supposed to be sent to the back of the race for being involved in the collision (assuming Stewart’s car actually made contact with Ward’s car).

Based upon the information obtained from the video in combination with the rules and some assumptions, it appears that Stewart was likely negligent for failing to drive slowly and avoid Ward walking on the track. While it is difficult to tell exactly, it appears that after Ward exited his vehicle, three of the 18 passing cars did not drive past on the very inside of the track. Stewart was the last of the three. He had the most time to slow down of the three and he was the 17th of now-21 cars to enter the line for the restart. He likely had ample time to observe Ward on the track and to take actions to avoid him by traveling on the inside of the track just like most of the other safe drivers.

Some individuals have commented that Ward should not have been on the track so Stewart should be excused. That is similar to stating that any driver who hits a pedestrian on a freeway should face no liability. Drivers on a freeway still have obligations to drive safely and avoid hazards and other people, even if the pedestrian is not supposed to be there.

In regards to comparative negligence, there is little doubt that Ward is at least partially at fault for the unfortunate incident. Common sense dictates that a pedestrian does not belong in the middle of dirt racetrack where multiple vehicles are traveling. Furthermore, the 2015 Canandaigua rules, which were likely the same in regard to this section state:

Any driver involved in an accident, spin, or has a mechanical failure on the track MUST stay in their car until the Safety Crew arrives. If there is imminent danger of fire or leaking fluids you may exit the car and stand as close to the car as possible. If you exit your car you will be penalized.10)Source


Ward clearly violated this rule, which was for his own safety. The most difficult determination is whether Ward’s negligence exceeded Stewart’s. This decision would probably be affected by evidence not available to the public at this time such as whether Stewart “revved” his engine while passing Ward in an attempt to intimidate Ward, which would also suggest that the location of Stewart’s car closer to Ward was also part of an intimidation tactic. If so, this would show Stewart was behaving even more dangerously than the video shows. Assuming that there was an order for the racers to restart, Ward had some expectation of safety in walking on the track because the cars would be slowing down to get in line. While additional facts could tip my opinion either way, I am going to slightly side with Ward and argue that he was 45% at fault and Stewart was 55% at fault.


Concluding Thoughts from Our Hypothetical Wrongful Death Discussion

It would ultimately be up to a jury to decide whether Stewart should be held at fault for wrongful death of Kevin Ward Jr.. After Stewart’s and Ward’s cars appeared to have collided, causing Ward’s car to lose control and crash, it appears a restart of the race was ordered. Ward negligently walked on foot towards the middle of the track before all the cars stopped and approached Stewart’s car, which was moving when Ward’s body was tragically thrown. Stewart likely knew of the importance to slow down and stay away from the accident scene and appeared to only partially perform these actions. Thus, both men appeared to be negligent, yet Stewart appeared to be slightly more so.

Footnotes   [ + ]

1. for better or worse
2. Source
3. NRS 41.085.
4. Nevada Jury Instructions – Civil 2011 Edition Inst. 4.16; Cnty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 759, 961 P.2d 754, 760 (1998).
5. Scialabba v. Barndise Const. Co., 921 P.2d 928, 930 (Nev. 1996) (citing Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 [1991]
6. Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008
7. Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993).
8. (NRS 41.1410
9. Id.
10. Source
EMV, credit card, small business, nevada, liability

Taking the Shock out of the Shock-and-Awe of EMV Liability

Nevada retailers and other merchants who accept credit card payments are rightfully confused and concerned about new EMV liability rules that will take effect on October 1, 2015. Though it is certainly disconcerting to hear that the retailer or merchant might be liable for fraudulent credit card transactions (as opposed to the credit card companies), the reality is that Nevada retailers and merchants are not facing impending doom and business ruin by not updating to EMV-compliant technology immediately. Of course, Nevada retailers and merchants should be aware of how these new rules affect their business and should make their own cost-benefit analysis before investing in new technology.


What is EMV and the “liability shift”

In the best layman’s terms I can think of, an EMV credit card includes a small chip rather than the standard magnetic stripe that we have all been used to seeing on the back of our credit cards. It is claimed that EMV-enabled cards incorporate safety features that will avoid almost all possibility of fraudulent credit card transactions. When literally billions of dollars of credit card fraud occurs every year with the standard magnetic stripe cards, this is a great development in the fight against financial fraud.

However, there has been a great amount of concern about the new EMV rules that take effect on October 1, 2015. The biggest question is about the “liability shift” that occurs on October 1, 2015. In uncomplicated terms, on October 1, 2015, retailers and merchants that accept credit card transactions that turn out to be fraudulent may be left on the hook for those losses, instead of the credit card companies who have always previously covered all instances of fraud1)It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.. In short, the new EMV rules push some of the financial loss from fraudulent credit card transactions to the retailer, rather than the credit card companies.

Nevada retailers, particularly small businesses, should rightfully be concerned about this liability shift. One large fraudulent transaction could ruin a small business. To protect against this liability shift, the credit card companies are pressuring retailers to purchase expensive new credit card processing equipment that is EMV-compliant. Should Nevada retailers invest hundreds or thousands of dollars in new credit card processing equipment that is EMV-compliant? Should they take the risk of not having the equipment? What exactly is the risk of not paying for upgraded EMV-compliant equipment? Let’s try to take a bit of the shock out of these questions.


When a Nevada retailer might be liable for fraudulent transactions

Most importantly, Nevada retailers will be responsible for the financial losses from a fraudulent credit card transaction only in one circumstance: when a customer presents an EMV-enabled credit card, but the retailer is not using EMV-compliant credit card processing equipment to run the transaction. In this situation, if the transaction turns out to be fraudulent, the retailer will bear the liability (i.e., the financial loss) from the fraudulent transaction. It is also important to consider that if a customer presents a traditional magnetic stripe credit card, which is processed on either the old non-EMV-compliant equipment or the new EMV-compliant equipment, and the transaction turns out to be fraudulent, the retailer is not financially liable for this loss.


Should Nevada retailers take the risk?

Nevada retailers should justifiably be concerned about the financial harm to their business if the retailer is liable for a fraudulent transaction. However, as with most business matters, the retailer simply has to calculate a risk analysis and determine as a business matter whether it makes sense right now to protect against this risk by purchasing the expensive new equipment. The first consideration for Nevada retailers is the general fact that the vast majority of credit card transactions in Nevada will likely continue to be processed with the traditional magnetic stripe cards for quite some time. Only a relatively small number of credit card holders have and use an EMV-enabled card2)Las Vegas’ retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now. Remember, any time that a fraudulent transaction occurs with the traditional magnetic stripe card, the retailer is not liable. Nevada retailers would do well to study their transactions in their business over the next month or two to determine how many credit card transactions are processed with EMV-enabled cards. If the number of these transactions is relatively few, the retailer may choose to take the business risk of possible liability on those few transactions.

Of course, in the next few years, we will see more and more credit cards issued with the EMV chip included, rather than the magnetic stripe. But over time, retailers will naturally purchase new credit card processing equipment as part of their normal course of business as equipment becomes outdated or broken. The retailer may choose to wait until the natural cycle of their business to change to the new EMV-compliant processing equipment. In any event, whether retailers choose to make the switch now or in the future, it is unlikely that a retailer will want to hold onto non-EMV compliant equipment forever.

Making the decision to transfer to EMV-compliant equipment is simply a business decision of weighing risks3)When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud and costs. Will a retailer be liable for the financial loss of a fraudulent transaction if the retailer processes an EMV-enabled card on non-EMV compliant equipment? Yes. Is that risk likely to arise? Maybe, maybe not. If the number of customers using EMV-enabled cards is low in the first place, and if the risk of the customers engaging in fraudulent transactions is even lower, a retailer may just conclude that the “liability shift” of the new EMV rules is much ado about nothing and may just choose to continue business as normal. But, as I like to say, “It doesn’t matter until it matters.” When that one ruinous fraudulent transaction does come through, do not say that you were not warned of the risk.

And, we wish you all a Happy EMV Day on October 1st!

Footnotes   [ + ]

1. It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.
2. Las Vegas’ retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now
3. When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud
UBER,, las vegas, clark county, employment law, employee, independent contractor

Are Uber Drivers Employees of the Company, or Independent Contractors?

We get it. If you’re asking this question on a personal injury attorney website it’s because you want to know if Uber or Lyft is on the hook for your medical bills after being hit by an Uber driver. The reality is that this question is up for debate, and we have and continue to take rideshare companies to court in order to hold them accountable for the actions of their drivers.

There are so many reasons to live in fabulous Las Vegas; we have great weather, low taxes, a healthy job market, and plenty of entertainment for all walks of life. But one downside of life in the desert is that it is rather difficult to get around without a car. The public bus system in Las Vegas is difficult to navigate and entirely inconvenient for many1)Not to say that our bus drivers work extremely hard, and we appreciate it very much. Taxis tend to cater to tourists and do not seem to want to do long drives to and from homes far from the strip2)Multiple people in my office have stories of cabs refusing to drive to the suburbs from downtown. Enter Uber, the immensely popular, ride sharing service.

What is Uber?

The concept of Uber is simple: download the app on your phone, and request a ride. The app will instantly show you the drivers in your area and send the closest one to come get you. Often times, the wait is only a matter of minutes. Each driver is assigned a rating by reviews of customers and if a driver has a low rating, a rider can reject that driver and wait for the next closest one. It is convenient, fast, and relatively3)Compared to a cab cheap. It is even safe for the drivers who never have to carry money because all payment is done through a credit card on the app.  Uber takes 20% of the fare and the rest belongs to the driver4)Additionally, the app will estimate the entire fare up front so you will not be surprised upon your arrival.

Many locals/non-locals in Nevada like to go out at night and have a drink or two, so Uber will likely reduce DUIs and related accidents because it is so simple/easy; it is silly not to use it if you need a ride. But, a unique service like Uber does come with quite a few legal and practical issues that relate to classifying drivers and paying taxes.

Employees vs. independent contractors

As a general matter, workers either fall into two categories: employees or independent contractors. Employees are the default worker status, when someone:

  1. works closely for an employer,
  2. is under an employer’s control, and
  3. is an integral part of the employer’s operation.

Hiring employees can be expensive for an employer who has to pay minimum wage, pay payroll and other taxes, provide breaks, purchase health insurance, and comply with various regulations regarding work environment and benefits. Hiring an independent contractor is cheaper by far. An independent contractor:

  1. works outside of the control of the employer,
  2. often on a more temporary or piecemeal basis, and
  3. must pay all taxes on their own without employer withholding.

Independent contractors are cheaper because employers do not have to pay payroll taxes, provide insurance, provide a place to work, and they do not have to comply with wage and hour laws because the contractor works on his or her own time. Each employment relationship is unique and must be examined on a case by case basis to determine whether someone is an employee or independent contractor.

Are Uber drivers  employees or independent contractors?

Uber claims that their drivers are independent contractors, but I am not so sure. Why does it matter, you ask? Well, if Uber drivers were classified as employees, the company would have to spend quite a bit more money paying taxes, benefits, insurances, and possibly providing cars for the drivers to use while working. But, all of these costs would likely be passed onto the consumer and likely hurt Uber’s bottom line. On the other hand, employees would benefit by receiving protections of wage and hours laws, receiving benefits, and being eligible for unemployment benefits if laid off.

Interestingly, despite the benefits, being classified as employees might be the exact opposite of what Uber drivers want. As it stands now, once hired by Uber, each driver must take his or her own personal vehicle to a designated mechanic for inspection. It is this personal vehicle that drivers will use for work. Each driver decides when to work, for how long, and where to drive. They have no one to answer to other than the reviewers who will ensure repeated business and an ongoing job with their positive feedback. A job like this can mean extra money for someone with another job or an income for someone who has limited childcare. There are many benefits to being an independent contractor in this business, and Uber likely appeals to many people who shy away from a 9-5 traditional setting job5)Paging Las Vegas buskers.

Although Uber claims their drivers are independent contractors, recent decisions by California courts have found otherwise for drivers in similar circumstances to those of Uber drivers here in Nevada. It remains to be seen whether Uber is eventually forced to classify their drivers as employees, but there are so many pros and cons to being an employee and an independent contractor, that Uber is really left between a rock and a hard place. Their business model depends on the flexibility and independence of each driver but at the same time, wage, hour laws and benefits regulations are designed to protect the work force.

Now what for Uber Drivers?

But what if Uber employees just will not fit into either category? Nevada could recognize a new class of employees to better protect workers and meet the needs and budget of a modern company like Uber.  Other countries, like neighboring Canada, have various categories of workers. Maybe therein lies the answer. If Nevada creates a new class of workers, Uber drivers could maintain independence and still receive important protections and benefits. Many independent contractors could potentially benefit from a new category of worker: freelance writers, web designers, and online marketing specialists, just to name a few.

I do not expect Uber to reclassify their employees since it cuts into their bottom line. But, it is a fairly close call as to whether the drivers are employees or independent contractors. Uber controls prices and monitors employee performance like a traditional employer, but Uber does not tell drivers when to work or how to drive, allowing them to make the decisions like an independent contractor would do. Yet, if Uber is sued for wage and hour violations, it is fairly likely that a judge would find a driver to be an employee under the control of Uber, which is what happened in California. So, if lawsuits like that cut into Uber’s bottom line, I suppose there would be a point where it would just be cheaper to have drivers be employees. I would guess though, that it would take a substantial number of lawsuits to make it financially beneficial for Uber to amend its policies. Perhaps if it looks like Uber may be in trouble for misclassifying employees down the road, then they might spend the money to lobby for new classifications. We shall see.

But, that is a long time away since Uber’s just getting started. It appears right now that the state of Nevada has given Uber to “go ahead” but Clark County has not and is trying to stop Uber from operating. But that’s a story for another day…..

Footnotes   [ + ]

1. Not to say that our bus drivers work extremely hard, and we appreciate it very much
2. Multiple people in my office have stories of cabs refusing to drive to the suburbs from downtown
3. Compared to a cab
4. Additionally, the app will estimate the entire fare up front so you will not be surprised upon your arrival
5. Paging Las Vegas buskers
republican debate, GOP, trump, rubio, carly fiorina, jeb bush, reagan

The Reagan Republican Debate: Winners, Losers, and the Trump Card

This is (somewhat) accurate. I just double checked. How? Stay tuned.

CNN, the number one source for gotcha journalism on the tv, did a great job of making the 3 hours1)Yes, seriously, it was that long about as entertaining as it could be. Overall, I was impressed with all of the candidates, in particular Mr. Rubio, Mr. Cruz, and Ms. Fiorina. The energy level, preparedness, and general Trumpyness was much better than round 1 (there are more than 20 debates schedule for our Republican friends, if the intensity continues to increase at this rate we will need a UFC-esq cage by January).

I pulled all the clips you need to see2)and probably one or two you don’t, but by the time we are done here, you will have a sufficient number of talking points to convince anyone you sat through this marathon.


Part I: The Trumpening of the Republican Debate

It is well documented by the Sensitive Sally Media how Mr. Trump is nothing more than an 8th grade bully, and they have been itching for someone with enough strength to take him on3)We all know the best way to defeat a bully is with a bigger bully. Ms. Fiorina may be the only Republican who is not afraid of Mr. Trump. Jake Tapper, after waiting more than an hour, finally allowed Ms. Fiorina to address Mr. Trump’s comments about her face:


GROAN! It is doubtful that she is concerned that his comments about her appearance were not kind, but that he is evaluating her appearance at all!4)#duh Saying she is “beautiful,” when you obviously do not mean it, is not answer! He has a better business record than she does, why not stay on the issues5)What’s that? Administering a business is different, bordering on irrelevant to being the leader of the free world? Sshhh, you are going to ruin all our fun. Do you want to be stuck watching Jeb! debate Mr. Walker’s 3 boring talking points for the next 6 months? Good. Either do I.. The media LOOOVED Ms. Fiorina’s answer. But will the voters? After the strangeness with Megyn Kelly6)I saw some of her recap of the debate, Ms. Kelly has handled Mr. Trump with class to her credit. Her post-game analysis was far superior to Mr. Hannity, who after sucking up to Mr. Walker with such hard hitting questions like “Isn’t it hard to be on the stage with so many candidates; please feel free to recite your stump speech on my national tv show,” brought on candidates that did not parrot his views on the Iran deal and badgered them, I will refrain from any false predictions.

Also, yes, I did catch Ms. Fiorina’s “This is Water” reference! Now if only she would have given the HP treatment to that awful film they tried to put out.


Jeb!,7)The Jeb “!” exclamation point leads to about as much fun as one can have with political syntax, by the way was not paying close enough attention to Ms. Fiorina’s interaction with the class bully, and apparently is not much of a fan of The Wire either:



“If you come at the king, you best not miss” is how I learned it. What did he think Trump was going to do there? Mr. Frum summed up the interaction well last night:


Jeb! showed some life later on though:

Even Mr. Trump seemed bemused. There was about an half hour there that we all referred to the former Florida Governor as Jeb!!, but then, as you will see below, we had to take back one of the exclamation points.

Now, Mr. Christie has just been itching to get some of this good bullying action. Finally, he got his opportunity, and talk about turning petulance into lemonade!


Won’t somebody please think of the 55 year old construction worker?? Ms. Fiorina was winning the debate before this interaction. Mr. Christie through her off her game, and she had a difficult time recovering/Jake barely called on her the rest of the way.

Mr. Christie went from nearly being sent to the kids table with Mr. Pataki to being declared a “winner” by most of the lamestream media, an impressive feat. Now if only he could get a couple of voters to find him likable.

Yes. And then things got silly…


I can hear you. “Stop Brian; just stop. I was a good sport and watched about half of this ridiculousness. No way a Republican, dare I say a Republican, would advocate a Brit to be on the $10 bill.”


What?? Come on y’all. Nearly half of you couldn’t even answer the question! This is why you cannot miss even one entry on the Clear Counsel Legal Blog; the women of our firm provide three great answers to this inquiry a couple of months ago.

A few thoughts:

  1. Your wife? Jake should have followed up with “What if there are more Supreme Court vacancies than you have siblings, what then?”
  2. Interesting fact: Rosa Parks served on the board of planned parenthood.
  3. How did no one offer up “Hillary Clinton” as an answer?
  4. The LA Times said Jeb! only” insult[ed] every American woman who ever lived.” No big.
  5. Of course, because Jeb! is always sorry, has already begun walking back his Thatcher claim.

The above exchange took place about 2.5 hours into the debate, when perhaps everyone, including your live-tweeting author, was getting a bit delirious. Of course, Jake had to raise the stakes and ask each candidate “what Secret Service code name would you assign” to yourself?

Huuuge Error Jake! This could have been television gold. Should have asked: “What secret service code should be assigned to President Trump?” Just imagine the look on Jeb!’s/Rand’s/Carly’s/Walker’s face!

Of course, none of the answers were very interesting. However, thanks to the Washington Post, you at home can create your own secret service code name! Feel free to refer to me as “Bisharp” going forward.


Conclusions from the Republican Debate

Well, I guess we are done here.

Or are we?

For those unaware, Mr. Silver’s statistical models of the previous 2 elections have been quite accurate. He went 50 for 50 in predicting results by state for Obama v. Romney.

To Mr. Silver, granted I am an amateur statistician at best, I would contend that none of the polls so far would meet his critera of “scientific.” Most of the polls are of 500 or less folks, usually only done by landline phone (does anyone under 30 even have a landline anymore?), with a margin of error of more than 5% per poll. The fact that CNN/FOX used the polls to keep some candidates out of the prime-time debate, and leave the others with Gov. Pataki does not seem that reasonable. They could just be honest; America finds you four boring, and dagnabbit, this is a television show primarily8)What? It affects the foundations of our republic? Yeah but did you see that ratings?!. Mr. Graham was smart to quip it up in the happy hour affair, ensuring that he will be included in the next prime time get-together9)CNN changed the rules so Ms. Fiorina would be included, smartly for this Republican debate.

If Mr. Trump were winning only a couple of polls, I would be inclined to go with Mr. Silver, given his track record. But it is every poll, in every state. The establishment media, understandably, cannot fathom how this Trump thing is happening. If I may be of some assistance…

It is not that Mr. Trump is not offensive, does not gaffe at an even higher rate than the King of all Gaffes10)trademark pending, Uncle Joe. It is that the people that support Trump are tired of the empty platitudes. Your voters are smarter than you think they are!

Ms. Fiorina made a real astute11)a bit too astute for the establishment types, by my guess observation when discussing how the Democrats use the immigration issue. To paraphrase, she claimed that Democrats will never reform immigration because it is too good of an issue to win elections on. If resolved, why would working class folks care at all about what they have to say?

This is just as bad of an issue for my Republican friends! And, in my somewhat humble12)Ok fine, not very humble opinion, this is the crux as to why Trump is winning13)Yes, exactly like Charlie Sheen. Scroll up and check out that Drudge poll again. Add up the totals of “outsider”14)the lamestream media just means candidates that haven’t been covering for more than 2 election cycles previous. More than 85% of that total are non-establishment candidates! Unfortunately for Mr. Trump’s ego, his support is more likely a product of the distaste Republican primary voters have for their Washington representatives. Check these stats out:

I thought Republicans were conservative? That 60/36 split says the opposite.

Mr. Trump is easily the most liberal of the Republican bunch. I swear I heard him make the case for a progressive income tax last night16)I cannot confirm this, that whole debate may have taken place in my mind for all I know. AND THE VOTERS DON’T CARE. Perhaps our Republican friends cried wolf one too many times, but the polling makes it seem that your voters do not trust y’all anymore. Perhaps all those shutdown threats come at a price. And they have a chance to run the same shutdown sham again this fall! Will the national leadership learn? Will Jeb! beg them to stop? Does he even have any sway over the Congressional Republicans given his dismal numbers?

More importantly, the national Republicans need to be concerned with this:

I bet those 32% are much happier with the party than they were a year or two ago, but you won’t win any national elections with 32% of the electorate. Assuming Trump does not win, the candidate will have a devil of time trying to ameliorate the harm caused to the moderate electorate opinion of the party 17)not to mention folks of color/women. One might contend that Trump is the logical conclusion of the decades-long national political strategy of “government is the problem,” but that precipitous drop occurred in the past year, correlated with the rise of that old-school Dixiecrat fear-mongering.  Which is the opposite of Mr. Reagan’s “big tent” philosophy by the way.

And you think our zeitgeist has moved into the hyper-real eh? You should see what’s going on in China with the zombies.


You need even more debate coverage? I’m impressed with your fortitude!

Jeb Lund wrote a good piece for The Guardian.

David Frum provided some sober analysis for The Atlantic.


Ok fine, a few Trump faces for the road…


Footnotes   [ + ]

1. Yes, seriously, it was that long
2. and probably one or two you don’t
3. We all know the best way to defeat a bully is with a bigger bully
4. #duh
5. What’s that? Administering a business is different, bordering on irrelevant to being the leader of the free world? Sshhh, you are going to ruin all our fun. Do you want to be stuck watching Jeb! debate Mr. Walker’s 3 boring talking points for the next 6 months? Good. Either do I.
6. I saw some of her recap of the debate, Ms. Kelly has handled Mr. Trump with class to her credit. Her post-game analysis was far superior to Mr. Hannity, who after sucking up to Mr. Walker with such hard hitting questions like “Isn’t it hard to be on the stage with so many candidates; please feel free to recite your stump speech on my national tv show,” brought on candidates that did not parrot his views on the Iran deal and badgered them
7. The Jeb “!” exclamation point leads to about as much fun as one can have with political syntax, by the way
8. What? It affects the foundations of our republic? Yeah but did you see that ratings?!
9. CNN changed the rules so Ms. Fiorina would be included, smartly for this Republican debate
10. trademark pending
11. a bit too astute for the establishment types, by my guess
12. Ok fine, not very humble
13. Yes, exactly like Charlie Sheen
14. the lamestream media just means candidates that haven’t been covering for more than 2 election cycles previous
15. (Harry Enten
16. I cannot confirm this, that whole debate may have taken place in my mind for all I know
17. not to mention folks of color/women
personal information, nevada, Internet Theft

How Nevada Safeguards Your Personal Information on the Internet

These days, you cannot watch the news without hearing about a security breach where personal information is stolen and private data has been exposed. We put all of our important information onto the public domain and rely on businesses and other entities to protect it for us. It is highly likely that you or someone you know has had their personal information compromised whether from the large scale breaches at Target, Home Depot, Sally Beauty Supply, Trump Hotels, Ashley Madison, Blue Cross Blue Shield, and CVS; or on a smaller scale at a local business. Anyone who uses a credit cards or shops online is at risk. If personal information is stolen, bank accounts can be hacked, credit cards charged, home addresses could be revealed, social security numbers can be stolen, and so on. People may not even know that the information has been stolen until years later when they try to get a loan or a new credit card and realize their credit is destroyed.

Keeping all these breaches in mind, it is nearly impossible to get by these days without using a credit card or shopping online, so we must all put our faith in the hands of the business we patronize to provide enough security to protect our personal information. But what happens when companies fail to protect our information? Are there any consequences? What if the businesses do not provide sufficient security? Or what if they do the best they can but the security is still breached?


Nevada continues to pass laws to protect personal information

Nevada Revised Statute 603A governs proper data protection for any “data collectors” who deal with nonpublic personal information whether it be driver’s licenses, social security numbers, credit cards or user names and passwords. Such data collectors are required to take “reasonable security measures” to protect records from unauthorized access, use, modification, or disclosure. Data collectors are required to maintain certain security standards, sometimes by using encryption, to protect personal data. If companies take credit cards they must comply with “Payment Card Industry Data Security Standards” which require encryption for information transferred electronically. For companies that do not accept credit cards, Nevada law still requires them to encrypt data transferred electronically.

In an effort to keep up with the ever increasing amount of personal information being transferred electronically, Nevada recently updated its statute to expand the definition of “personal information.” Prior to July 1, 2015 personal information required to be protected included social security numbers, driver’s license or identification numbers, and any account numbers in combination with passwords that permit access to a financial account. After July 1, 2015 personal information now includes medical information numbers, health insurance information numbers, driver authorization numbers, or user names/login information that in combination with a password or security question would permit access to an online account. This expansion of the meaning of personal information now seems to cover just about anything a consumer would be uniquely identified by at a business or on the internet, whether it be shopping with an online account, requesting a referral for a doctor visit, or subscribing to an online service.

Data collectors are not responsible for damages caused by a security breach as long as they are complying with the reasonable security standards outlined in the statute. If a business reasonably believes personal information has been stolen, they must provide the potential victims with notice right away.

Nevada considers itself to be the “gold standard” in consumer breach and notification laws1)See Senate Committee on Commerce, Labor and Energy, April 24, 2015 at page 4.. Nevada also prides itself on being “business-friendly” by having uncomplicated, clear and reasonable guidelines for what business need to do to comply with protection of consumer data2)Id.. The new guidelines expanding the definition of personal information was thought to incentivize businesses to protect the data or force them to go public with their breach by providing notice to the public.


Any press is good press? Or is it?

But are there any remedies to really protect a harmed consumer? It does not really appear so at this time in Nevada. Although businesses do have to notify individuals when the personal information is compromised, I am not convinced this is all that much of an incentive to do use all possible efforts to protect information. For example, Target was brought to the forefront of the news recently for its large scale data breach, but I do not know anyone who loves to shop there any less. I would make an educated guess that any number of my soccer mom friends are enjoying a stroll through Target as I write this. Not only that, but my home-improvement-enthusiast husband still goes to Home Depot at least once a week despite having to get an entirely new debit card when his information was breached a few months back. Point being that I just do not think it is a sufficient disincentive for companies to have to “out” themselves after a breach. Studies are showing that consumers are used to breaches and do not seem overly concerned about it. Typically consumers are not held responsible for unauthorized credit card charges and likely are not inconvenienced by more than a phone call to the bank.

Many companies that have suffered from security breaches have provided identity protection services at no charge for a certain amount of time. That is certainly helpful and likely comes at a substantial cost for the business, but it is not required. Connecticut recently passed legislation that will require identify theft protection to be provided in the event of a breach. California also requires these services.


What else can Nevada do to protect the personal information of her citizens?

In the future, Nevada may implement a law to require companies to provide these identity protection services. But it appears that most do anyway in an effort to show their customers that they care and that they will work hard to protect their data in the future. But is this enough? It is hard to say.

It is my perception that many of these computer hackers live abroad. Additionally, I believe that where there’s a will there’s a way, and if criminals are looking to find a way to steal personal information, they will always be one step ahead of the security game. So can we really fault a store for falling victim to an extremely sophisticated hacker when they took “reasonable measures” to protect my identity as required by law? Maybe. Say, for example, if someone does not receive notice of a breach because they changed their address since shopping at a certain store and they do not opt in to identity protection. Maybe a few years go by and this person is denied for a car loan because someone else has been taking out loans in his or her name and ruined the credit score of the victim. The consumer is innocent, so who should s/he blame? The store that permitted the data breach? Maybe.

Perhaps in the future, legislators would consider a private cause of action by a wronged consumer against a business who suffered a breach. Even if the business took reasonable protection measures, should an innocent consumer really be left holding the proverbial bag of harm when s/he now cannot buy a car? If this happens to a large number of people, maybe a class action suit would be a way to address wronged consumers. In that scenario, the benefit of a class action lawsuits come to fruition as a consumer who suffered only a small amount could seek redress without incurring substantial attorney’s fees. But, on the other hand, I can understand how a store who took all best efforts to stay up to date on the cutting edge of security protection should not be held liable for falling victim to a sophisticated scammer. If a business follows all laws and procedures, maybe it is unfair to require the entity to pay damages for a breach they could not have anticipated.

Since Nevada likes to stay on the forefront of consumer data protection, we will have to wait and see how these issues play out in the future. But for now, keep checking those credit reports and be on the lookout for any strange activity.


Footnotes   [ + ]

1. See Senate Committee on Commerce, Labor and Energy, April 24, 2015 at page 4.
2. Id.
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