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Misappropriation of Trade Secrets

By: Greg Haffner

In Washington, owners of trade secrets may rely on two laws to protect those secrets. The Uniform Trade Secrets Act, RCW 19.108 (“State Act”), is a state law based on a national model law that has been adopted in 47 states. The other, the Defend Trade Secrets Act, 18 U.S.C. §§ 1831–1839 (“Federal Act”), is a federal law that became effective May 11, 2016.

A trade secret is defined as information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Under both acts, misappropriation happens when a trade secret has been: (a) acquired by a person who knows or has reason to know that the trade secret was acquired by improper means; or (b) disclosed without express or implied consent by a person who:

  1. Used improper means to acquire knowledge of the trade secret; or
  2. At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was (A) derived from or through a person who had utilized improper means to acquire it, (B) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or (C) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
  3. Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

Both acts authorize a trade secret owner to seek damages and enjoin conduct if trade secrets are misappropriated. The State Act provides that a party may be awarded double damages and attorneys’ fees if the misappropriation was malicious. Under the Federal Act, on the other hand, exemplary damages and attorneys’ fees may only be recovered if the parties had a written agreement that included notice that trade secrets may be disclosed without liability when the disclosure is to a government official or attorney as part of a report or investigation of a violation of a law, or when filing a lawsuit under seal. The Federal Act does not affect contracts in place before May 11, 2016, unless the contract is amended, at which time it must be updated to include the required notice. If the required notice is not included, damages may still be recovered under the Federal Act, but not exemplary damages or attorney fees.

Claims under both acts must be brought within 3 years of when the misappropriation was or reasonably could have been discovered.

If you have questions about how these laws affect your business, contact Greg Haffner or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 10/17/2016


New Federal Overtime Rule in Effect

By: Kevin Jussel

On May 18, 2016, the United States Department of Labor finalized and published its final rule to update overtime regulations that will affect many employers across the country. The rule focuses on the overtime regulation’s applicability to those individuals in an Executive, Administrative, and Professional roles by raising the salary and compensation threshold that allows those workers to be eligible for overtime.

The rule’s major changes include:

  1. Sets the standard salary level at $913 per week or $47,476 annually for a full-year worker. This means that salaried workers who earn up to these amounts will be entitled to overtime pay, irrespective of their status as a salaried worker;
  2. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption; and
  3. Allows employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

This rule goes into effect on December 1, 2016.

If you have questions about how the applicable laws affect your business, contact Greg Haffner or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 5/20/2016


Chad Horner Speaks at 11th Annual Probate Administration Conference

Chad Horner, Curran Law Firm’s Managing Partner, recently presented at a conference for attorneys sponsored by the King County Bar Association. At the “11th Annual Probate Administration Conference,” Chad spoke about identifying and administering Nonprobate Assets after a loved one passes away. Because most Nonprobate Assets pass outside of a client’s will, they are critical assets for attorneys to consider when thinking about a client’s overall estate plan and when a personal representative it administering an estate.

The agenda for the presentation may be found online.

If you have questions about your estate plan, contact Chad Horner at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 11/23/2015


District Denying Transgender Student’s Use of Locker Room Violates Title IX

By: Kevin Jussel

The United States Department of Education’s Office for Civil Rights (“OCR”) determined that a public school district in Illinois violated Title IX of the Education Amendments of 1972 when it would not permit a transgender student to utilize the locker room designated for the sex for which the Student identified as or by otherwise imposing restrictive conditions on her use of locker room facilities.

The Student was born male and from a young age identified as female, eventually transitioning to living full-time as a young woman. The Student and her parents communicated extensively with the District about issues related to the Student’s move from junior high to high school, including which gender-oriented locker room that the District would permit the Student to use. The Student was required to change clothes in order to complete mandatory physical education courses and other extracurricular activities that she participated in. The District honored the Student’s request to be treated as a female in all other respects, but the District would not allow the Student to use the women’s locker room. While the parties discussed alternative accommodations, they could not come to a resolution that would allow the Student comparable facilities to other students who utilized the District locker rooms.

The District defended its decision by asserting its interest in balancing the rights of all students, including the constitutional privacy interests of high school students. The District stated that students’ privacy rights would be violated if it granted the Student the option to change her clothes in the girls’ locker room, because those circumstances would expose young female students to a biologically male body in the girls’ locker room.

OCR found these and other arguments made by the District to be unavailing, and determined that the District’s decision violated Title IX—a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Particularly, the law provides that all students, including transgender students, are protected from sex-based discrimination. OCR determined that the Student received an unequal opportunity to benefit from the District’s educational program by being denied access to the women’s locker room. This was exacerbated by the ongoing sense of isolation and ostracism that the Student experienced by being denied the same opportunities that were afforded to other students and her teammates. OCR concluded that the District excluded the Student from participation in and denied her the benefits of its education program on the basis of the Student’s sex.

While this decision is fact-specific and does not stand as a general rule of law or official OCR position, it does represent a landmark determination by the federal Department of Education to include transgender students within the scope of protection of the anti-discrimination laws that it is tasked to enforce.

If you have questions about School and Municipal law, contact David Hokit, John Casey, Chad Horner, Samuel Chalfant, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 11/5/2015


Determining Gross Monthly Income for Child Support Calculations

By: Mary Coleman

In Washington, child support payments are calculated based on a table that uses the combined net incomes of the parents along with the number and ages of the parents’ children. Income includes wages, commissions, deferred compensation, dividends, interest, trust income, severance pay, annuities, capital gains, retirement benefits, worker’s compensation, unemployment benefits, spousal maintenance, bonuses, social security benefits, disability benefits, and income from rent, royalties, contracts, and business ownership. The court also weighs the effect of a parent whose employment is only part-time.

When the court determines that a parent is “voluntarily” unemployed or underemployed, the court must impute income to the parent based on:

  1. Full-time earnings at the current rate of pay (if the parent is working part time);
  2. Full-time earnings at a past rate of pay;
  3. Full-time earnings at minimum wage if the parent is recently coming off public assistance, disabled assistance benefits, pregnant women assistance benefits, essential needs and housing support, supplemental security income, or disability, has recently been released from incarceration, or is a high school student; or
  4. Median net monthly income of year-round full-time workers.

In determining whether a parent is voluntarily underemployed or voluntarily unemployed, the Court will consider a parent’s work history, education, health, and age, or any other relevant factors. Income shall not be imputed for an unemployable parent.

If a parent is gainfully employed on a full-time basis (meaning the parent is receiving compensation for the time s/he works), the Court will not impute income to that parent unless the court finds that the parent is purposely underemployed to reduce the parent’s child support obligation.

In sum, the general rules are:

If you have questions about parental rights or other family law issues, contact attorneys Theresa Ahern, Mary Coleman, or David Hobson at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 7/13/2015


Should you Place Another Person on Your Home's Title to Avoid Probate?

By: Chad Horner

Clients sometimes ask whether there is an advantage to placing their children, friend or other person on the title to their home to avoid probate. While this could help avoid probate, it comes with significant risks and there are different methods to avoid probate if a person’s home is the only reason a probate may be required. It is important to remember that probate in Washington is not as bad as most people think. Washington has a relatively efficient probate system that provides a helpful court-approved structure through which heirs and fiduciaries are protected from future creditor claims or allegations of improper distributions. At the conclusion of a properly administered probate, family members are able to feel comfortable that a loved one’s final wishes have been met and no heirs or fiduciaries will likely face any future legal liability.

If, however, a person’s home would be the only asset necessitating a probate, placing an heir’s name on title may avoid the need for a probate upon the owner’s death. A traditional method for transferring real property (i.e., land or a home) upon death is to add another person to the title as a “joint tenant with right of survivorship.” If this is done properly, the ownership of the property immediately vests in the co-tenant upon the death of one of the other owners. When this type of title is executed, the joint owners own an equal interest in the property. This is different than when the owners are designated as “tenants in common.” As tenants in common, the each owner’s interest in the property is proportionate to their contribution to the property.

A property owner should use extreme caution before adding another person as a joint owner with right of survivorship. The property owner may not reverse this change without the consent of the other owner. The property cannot be sold without the consent of the new owner, or without going through a potentially costly legal action. Such a transfer would also likely be considered a gift for tax purposes and for future eligibility for Medicaid long-term care assistance. Also, if the new owner has a judgment entered against him or her, the judgment will likely attach to the property.

Recently, Washington adopted a new type of deed that may avoid many of these drawbacks and is more commonly recommended today. It is called a “Transfer on Death Deed” (also known as a beneficiary deed). The deed has no effect on title during the owner’s lifetime. It conveys the parcel of real property to the beneficiary named in the deed at the moment the owner passes away, thereby avoiding probate at least as to that property. During the owner’s life, the beneficiary has no rights to the property and his/her liabilities can’t attach to it. We recommend clients consider this type of deed before proceeding with a deed creating joint tenancy.

Whether you are considering a deed creating joint tenancy or a beneficiary designation, however, we recommend that you consult with an attorney who can more fully discuss with you the pros and cons of the decision. If you have questions about your estate plan, contact Chad Horner at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 7/7/2015


Chad Horner Presents at King County Estate Planning Conference

Chad Horner, Curran Law Firm’s Managing Partner, recently presented at a conference for attorneys sponsored by the King County Bar Association. The conference was titled “Personal Estate Planning for the 99 Percent,” and Chad spoke on estate planning considerations for Nonprobate Assets. Because most Nonprobate Assets pass outside of a client’s will, they are critical assets for attorneys to consider when thinking about a client’s overall estate plan.

The agenda for the presentation may be found online along with Chad’s presentation materials.

If you have questions about your estate plan, contact Chad Horner at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 5/6/2015


Do I need a Revocable Living Trust?

By: Chad Horner

Many of our firm’s estate planning clients ask whether they need a Revocable Living Trust (“RLT”). For most people in Washington, an RLT is unnecessary. The primary benefit of RLTs is that they can help an estate avoid probate. RLTs were fashionable in Washington many years ago when the state’s probate process was more burdensome. Over the years, however, the Washington legislature has made it easier and less expensive to administer an estate, making RLTs less necessary.

In addition, it may be expense and inconvenient to set up an RLT. Aside from the cost of preparing the trust document itself, each of a client’s assets needs to be retitled and placed into the name of the trust. This would include bank accounts, real estate, and vehicles. Some clients find it unpleasant and confusing to conduct their entire financial life in the name of a trust. And, if a client forgets to place a later-acquired asset into the trust, a probate may be necessary to clear the title to the asset, making the entire creation of the RLT for not.

Avoiding probate upon someone’s death doesn’t mean avoiding all expense and inconvenience. To wind up a trust after the death of its creator, the successor trustees would need to follow Washington rules and give proper notices, pay creditors, handle taxes and make proper distributions, much like a normal probate. Moreover, even with an RLT, family members may disagree over the proper administration of the trust, which may create great expense that would reduce the value of the trust.

In some circumstances, however, an RLT may be helpful—especially for clients who have property in other states. Still, we recommend having an experienced estate planning attorney review your circumstances before relying on a RLT as a centerpiece of your estate planning. If you have questions about your estate plan, contact Chad Horner at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 3/2/2015


Tax Exemptions for Unmarried and Divorced Parents

By: Mary Coleman

At this time of year, many divorced or separated parents have questions about claiming their minor child for tax purposes.

According to federal tax laws, if parents are divorced or were never married, the custodial parent is allowed to claim the child for tax purposes. The custodial parent is defined as the parent with whom the child has lived for the greater number of nights during the rest of the year. If the child lived with each parent an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income.

When entering an Order of Child Support, the Superior Court has the ability to order a custodial parent to sign Federal Tax Form 8332, which is a release of the exemption by the custodial parent. When the custodial parent signs this form, the non-custodial parent is entitled to claim the child.

It is fairly common for an Order of Child Support to include a requirement that the parents will alternate claiming the child every other year and that the parents will sign the Form 8332. It is also a good idea to include a provision that the parent paying child support must be current in his / her support obligation by the end of the tax year in order for that parent to claim the child.

Unique problems may arise when support being paid through the Division of Child Support is collected from the paying parent prior to the end of the year but is not received by the other parent after the end of the year.

Mary Coleman, a family law attorney at Curran Law Firm, successfully argued this issue before the Washington Court of Appeals in an unpublished opinion.

If you have questions about parental rights or other family law issues, contact attorneys Theresa Ahern, Mary Coleman, or David Hobson at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 2/9/2015


Washington State may not have Common-law Marriage, but it does have Committed Intimate Relationships

By: Sam Chalfant

The doctrine of common-law marriage bestows marital property rights in certain situations to partners who failed to go through the solemnization formalities of a legal marriage. While Washington State does not recognize the common-law marriages, a non-married Washington citizen may nevertheless be able to gain marital-like property rights in the property of his or her significant other by proving that they were in a committed intimate relationship (a “CIR”). A CIR is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist. Whether a CIR exists depends on the intent and purpose of the parties, the duration of the relationship, whether the parties continuously cohabited, and whether they pooled their resources.

If the parties are found to have been in a CIR, then the court will divide and distribute all property acquired by the parties through their efforts during the relationship, regardless of whose name is on title or who paid for the property. This includes income earned by a party during the relationship. This outcome may come as a serious shock to a person who was living under the assumption that his or her property and income was their separate property.

Partners may prevent a CIR from altering their property rights by entering into a mutual agreement, commonly referred to as a cohabitation agreement. Like a prenuptial agreement, a cohabitation agreement allows the partners to agree in advance as to what effect their relationship and its possible cessation will have on each partner’s property. However, courts are highly exacting when reviewing cohabitation agreements and will only enforce those that meet specific substantive and procedural requirements.

Curran Law Firm Principal John Casey recently spent 10 months successfully defending a CIR claim brought against a client whose previous attorney failed to ensure that she and her former significant other properly completed their cohabitation agreement. If the cohabitation agreement had been property completed, it is much more likely that the case would have resolved sooner than the 10 months it took to determine the issue in court.

If you have questions about committed intimate relationships or cohabitation agreements, contact attorneys Theresa Ahern, Mary Coleman, David Hobson or John Casey at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 1/27/2015


Alternative Dispute Resolution in Family Law Cases

By: Theresa Ahern

Alternative Dispute Resolution (“ADR”) is an umbrella term for a range of dispute resolution methods designed to help parties settle their cases without court intervention. In King County, ADR is required in all family law cases—with an exception for cases involving domestic violence and cases that involve only a modification of child support.

Dispute resolution methods include:

Mediation. Mediation is the most commonly used form of ADR in family law cases. In mediation, the parties meet with a neutral third party who works with the parties with the goal of reaching an agreement. Most commonly, the process is conducted as “shuttle” mediation, with the parties in separate rooms and the mediator going back and forth between the two rooms. Prior to the mediation, each party provides documents to the mediator and other party, including proposed final orders, a financial declaration, and financial documents such as bank statements, paystubs, and tax returns, and a list of property and debts. If the parties have minor children and the parties do not agree to a parenting plan, each party also needs to submit a proposed parenting plan.

Mediation is often a very effective way to resolve cases and gives the parties an opportunity to reach an agreement among themselves without having to go to court. With mediation, if the parties are unable to reach an agreement, the mediator does not decide any disagreed issues.

Arbitration. In arbitration, the parties meet with a neutral third party who hears the positions of both parties and then makes a decision as to any disagreed issues. Each party needs to provide the same documents that are required for mediation. While an arbitrator may work with the parties to determine if any agreements can be reached, if the parties are unable to reach an agreement, the arbitrator will decide any disagreed issues.

Theresa Ahern, a principal in Curran Law Firm, is available to help parties resolve their disputes. In addition to her family law practice, she has served as a mediator and arbitrator for over twenty years in South King County. She handles matters for people living in Kent, Renton, Auburn, Maple Valley, Federal Way, Burien, Normandy Park and other locations in King County. She currently charges $200 per hour to handle ADR matters and she does not impose a cancellation penalty. Please contact her assistant, Sandy Prehm, at sprehm@curranfirm.com to schedule a mediation or arbitration.

Posted 1/12/2015


Anonymity of Comments on Yelp! and TripAdvisor

By: Kevin Jussel

The Internet is often a prime space for businesses to market to and reach their customers. However, the Internet also presents a litany of potential pitfalls for businesses that do not have an appropriate strategy to address feedback written by customers. Comments, criticism, and praise about businesses are hosted on a variety of websites, such as Yelp! and AngiesList, that allow anonymous members of the internet public to leave reviews about a business. One of the more hotly contested issues about these forums is whether the website hosting a review written by an anonymous third-party may be compelled to release identifying information about the reviewer—in other words, may a website be forced to give the real identity of an user who left a review on the website?

Another recent decision had the opposite result. See Music Group Macao Comm’l Offshore Ltd. v. Does I-IX, 2015 WL 75073 (N.D. Cal., January 6, 2015). In Music Group, the court found that a defamation plaintiff’s interest in knowing the names of anonymous twitter users outweighed those parties’ first amendment rights. The court found that the plaintiff’s requests were specific enough to specific enough to allow service of process on the anonymous defendants—whose speech presented a colorable action for defamation, rather than being speech comprised of merely criticism. See also Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2009).

If you have questions about how the internet and applicable laws affect your business, contact Greg Haffner or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 1/5/2015


Do You Need a Succession Plan for Your Business?

By: Greg Haffner

Ask yourself the following questions:

These questions are addressed in a business’s succession plan. A business should have a succession plan if the owner would like to maximize the value of the business for retirement, reward an employee, partner or family member, or leave a legacy.

A succession plan should be prepared with the assistance of your attorney and certified public accountant or tax consultant, and possibly an investment advisor and insurance representative. It may include the continuation of your existing business or the sale of its assets. However, the initial and perhaps most important step is to determine the parties who will succeed you. You will need to balance return on your investment with impact on relationships. Will you risk the alienation of family and friends to get the best return? Will you sacrifice the best return to reward a trusted partner or employee or to help a family member get started? Will your generosity to someone really be in their best interests? If you are concerned about the legacy of your business, you may forego an individual interested in succeeding you if you believe that they don’t have what it takes to replace you—it may be better to sell the business to an outsider and leave some of the money to a family member than to give the business to a family member who isn’t interested in or capable of running the business.

A succession plan may include any variety of transfers of interest to achieve your goals. You may work towards selling everything at once or gradually reducing your control through sales or gifts of smaller interests. You may want to retain enough interest to control major decisions like the sale of substantial assets or provide incentives for hard work through discounted stock purchases over time that eventually transfer control from you while still retaining a minority interest. Your plan may want to include safeguards to protect you once you start relinquishing control (e.g. employment or consulting agreements, special voting rights for issues of importance to you).

The succession plan must be in writing signed by the intended parties. This is usually done through a shareholder agreement for a corporation, an operating agreement for a limited liability company, or a partnership agreement for a partnership. Even an employment agreement may be used to provide terms of a succession plan intended to eventually lead to the employee becoming an owner. An ownership agreement should include comprehensive buy-sell provisions to protect the intent of the parties from being sidetracked by undesired events such as death, disability, divorce, bankruptcy or termination of employment.

If you have questions about succession plans and business strategies, contact Greg Haffner, John Casey, J. David Huhs, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 12/15/2014


San Francisco Passes AirBNB Law—Regulations Coming to the Seattle Market?

By: Kevin Jussel

The San Francisco Board of Supervisors recently passed a regulation that governs short-term housing rentals. Some of the major companies that offer platforms for such services include AirBNB, VRBO, and HomeAway—the new regulations facing short-term housing rentals are often referred to as “AirBNB Laws.” Although Seattle and its surrounding markets have not legislated short-term rentals, San Francisco officials confronted the issue in the context of the city’s ongoing housing shortage.

The new regulation imposes many requirements on persons who wish to list and rent out their property on a short-term basis. The restrictions imposed on short-term rentals within the San Francisco city limits include:

These requirements and others are addressed in further detail by Kim-Mai Cutler. See 1, 2. Going from a completely unregulated scheme, many property owners who utilize AirBNB and other services believe that these requirements are too burdensome. It is also unclear whether the law unfairly applies the 90-day maximum rental amount to unoccupied properties when hotels and other lodgings offer the same service without the restriction.

The only other major domestic market to take a stand on the issue appears to be New York, whose state Attorney General’s Office has taken the position that most short-term rentals in New York City violate state law.

If you have questions about how local laws and regulations affect your business or how to proactively incorporate law changes into your business strategies, contact Greg Haffner or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 10/20/2014


The Use of Facebook to Serve Legal Pleadings

By: Kevin Jussel

Facebook users beware, as courts may start relying on your use of websites as a foundation to allow you to be served with legal paperwork over the internet. The general rules governing service of a lawsuit in Washington are relatively straightforward—a plaintiff must serve a copy of the summons and complaint either personally or through an alternative means of service. Until the parties to the lawsuit are served with these documents, the relevant court may not exercise jurisdiction over the parties to grant the relief requested by the plaintiff.

The primary mode of service in Washington is personal service, which is accomplished by serving the summons and complaint on the defendant personally or by leaving a copy of the documents at the defendant’s usual place of abode with someone of suitable age and discretion who resides at the home (i.e., a family member).

However, when the plaintiff exercises reasonable diligence to serve the defendant and is unable to do so, there are alternative methods to accomplish service. A plaintiff may leave a copy at the defendant’s usual mailing address with a person of suitable age and then mail a copy of the summons and complaint to the person to be served at the mailing address. Another method is service by publication, which allows the plaintiff to petition the Court for permission to serve the defendant by publishing notice of the lawsuit in a newspaper of general circulation in the county where the action is brought.

A family court in New York, however, has taken a different approach to service by allowing a father to serve his ex-wife through an emerging form of alternative service—through Facebook. A copy of the Court’s order is available online. The judge reasoned that the father had exercised reasonable diligence to attempt to find his ex-wife’s contact information, but was unable to do so. The father presented evidence that the ex-wife was regularly active on Facebook, and that service was likely to be accomplished by allowing the father to send his ex-wife a digital copy of the summons and petition via Facebook and regular mail to her last known address. While documents are routinely exchanged between parties through e-mail, the use of a social networking site has not been commonplace for original service of judicial documents. Nevertheless, the judge who issued the order stated that federal courts in New York and Virginia had also approved of the method.

Evolving technologies and the use of social networking and other websites present new and sometimes complicated issues, even with the most primary of legal requirements. If you have questions about general civil litigation matters, contact John Casey, Greg Haffner, J. David Huhs, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 9/22/2014


Restrictive Covenants for Businesses

By: Greg Haffner

If your employees or co-owners could leave and compete against your business, you should consider entering into agreements that contain restrictive covenants. Examples of restrictive covenants include noncompete, non-solicitation, and confidentiality provisions. Noncompete covenants prevent a person from competing against a business during and after their relationship with that business. Non-solicitation covenants may prevent a person from contacting your customers and employees for the purpose of obtaining their business or services for themselves. Confidentiality covenants prevent a person from disclosing your business’s confidential information, including trade secrets and customer information. For your business to operate successfully, you may need to share confidential information with the people who work with and for you. Your partners and employees may not be able to do their job without such information, but if they leave your business you may want to preclude them from becoming a competitor using that same information and the experience they gained while working with or for you.

Drafting Requirements. Restrictive covenants may protect your business if drafted properly. However, incorrectly drafted restrictive covenants may be invalidated as unlawful restraints of trade. Restrictive covenants must be reasonable in scope, territory and time. They cannot: (1) be more burdensome than necessary to protect the legitimate business interests of the beneficiary of the provision; (2) impose undue hardship on the restricted party; or (3) be injurious to the public. A covenant prohibiting all competition in all places forever would clearly be unreasonable. However, covenants restricting competition to areas outside territories of reasonable size for reasonable periods of time are regularly enforced. If a court determines that a restrictive covenant is too restrictive, the court may either invalidate the provision or revise the scope of the covenant to be more reasonable. It is a good practice to include a provision in any agreement with restrictive covenants to allow a court to revise each covenant to still reasonably protect the beneficiary of the covenant if the court determines that the covenant is unreasonable.

For instance, a court likely will not enforce a restrictive covenant that prohibits a baker from working in the baking industry if the baker opens a business selling baking supplies next door to the bakery he previously worked at. Instead, the court likely would revise the covenant to specifically restrict the baker from operating a bakery in the same geographic area for a reasonable period of time. Similarly, if a bakery in Seattle only sells to customers in Puget Sound counties, a court likely will not enforce a state-wide restriction against a former partner who opens a bakery in Spokane if the Seattle bakery would not be harmed by the one in Spokane. And finally, a veterinarian in Everett who receives patients from all of Snohomish County might not be allowed to enforce a restriction against a former employee who seeks to provide the same services in a remote part of the same county if such services are not readily available in that part of the county.

Consideration. In addition to being reasonable, the person burdened by the covenant must receive valid independent consideration. New employment and additional financial compensation are considered valid consideration—mere continued employment is not.

Enforceability. Finally, when drafting restrictive covenants, it is important to have an understanding of where the covenant may be enforced. For instance, California prohibits noncompete agreements, but enforces confidentiality and non-solicitation covenants.

If you have questions about business and employment matters, contact Greg Haffner, Chad Horner, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 5/19/2014


Standards for Spousal Maintenance (“Alimony”)

By: Mary Coleman

In Washington, spousal maintenance (known in other states as “alimony”) may be ordered in dissolutions, legal separations, and in proceedings to have a marriage declared invalid. A common question is how the amount of maintenance is established and how long maintenance will be paid or received. Because child support is calculated based upon a specific formula set forth in the Revised Code of Washington, people who are familiar with how child support is calculated may assume that maintenance is calculated in a similar way. However, unlike child support, there is no formula to calculate spousal maintenance. Instead, the amount of maintenance, the length of maintenance, and even whether maintenance is ordered will be determined by the judge who decides the case—if the parties themselves are unable to reach an agreement regarding maintenance.

The factors that the parties and judge need to consider are statutory, and there are also many court decisions regarding spousal maintenance. The misconduct of either party (e.g., whether one party had an extramarital affair) is not relevant to whether maintenance is established nor to the amount and duration of maintenance.

Relevant factors include but are not limited to: (a) The financial resources of the party seeking maintenance; (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) The standard of living established during the marriage or domestic partnership; (d) The duration of the marriage or domestic partnership; (e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and (f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.Spousal maintenance is not just a means of providing bare necessities, but rather a flexible tool by which the parties’ standard of living may be equalized for an appropriate period of time. For this reason, some general principles apply to the awarding of maintenance:

• Maintenance is usually not ordered when the parties have relatively equal incomes.

• Generally, the longer the period of marriage, the longer the period of maintenance.

• One purpose of maintenance is to provide the lower earning spouse the opportunity to receive additional training or education necessary to earn a higher income, so it can be helpful for a person requesting maintenance to have a plan for the additional training or education that s/he will need. • If one party has significant health issues which prevent him/her from working, it is more likely that the Court will order long term maintenance.

• Even if one party has a need for maintenance, maintenance will not be ordered if the other party does not have the financial ability to pay maintenance—and parties need to keep in mind that the court may not agree with a party’s perception as to their “need” or their “ability” to pay.

If you have questions about spousal maintenance or other family law issues, contact attorneys Theresa Ahern, Mary Coleman, or David Hobson at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 5/5/2014


New Study Finds Serious Hospital Mistakes More Common Than Previously Thought

By: Mark Davis

For years it has been widely assumed that roughly 100,000 hospital patients die each year due to medical errors. A recent study, however, suggests that the actual mortality rate due to medical errors could be as much as two to four times higher. If this is correct, then medical malpractice would be the third leading cause of death in the United States trailing only heart disease and cancer.

The seminal study on patient safety was entitled “To Err is Human” published by the Institute of Medicine in 1999. That study estimated as many as 98,000 deaths per year due to medical errors and neglect. In 2010, the Office of Inspector General for the U.S. Department of Health and Human Services reported that poor hospital care was a factor in the deaths of at least 180,000 Medicare patients alone.

In September 2013, a new study was released and published in the Journal of Patient Safety. A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care by John T. James, PhD, Journal of Patient Safety, Vol. 9, Issue 3, pp. 122-128 (September 2013). This study used a more refined analysis with the latest data maintained by hospitals across the United States. The study concluded that medical malpractice accounts for somewhere between 210,000 and 440,000 hospital deaths per year.

We probably will never know for sure how many patients suffer needless harm as a result of substandard medical care, but even the lowest estimates point to an alarming problem and a need for greater transparency in the reporting of “adverse events” as these errors are commonly referred to in the medical community.

Curran Law Firm has helped many families pursue meritorious medical malpractice claims over the past five decades. During that time, it has become apparent that many of those claims were caused as a result of miscommunication. As a patient, there are a number of things you can do take charge of your own care and try to prevent similar miscommunications from occurring. The following list is not meant to be exhaustive but will hopefully help you and your loved ones from being harmed as a result of medical malpractice:

• Request digital copies of your hospital records.

• Carry a list of your medications, including over-the-counter medications, with you at all times.

• If you are taking several medications, bring them with you to your doctor appointments.

• Educate yourself on your medical condition. There are a lot of unreliable sites on the Internet. We recommend that you use websites maintained by reputable facilities such as the Mayo Clinic, Johns Hopkins, or the Cleveland Clinic. These institutions provide basic online medical information for the general public who lack medical training. Don’t try to self-diagnose yourself but prepare yourself to ask good questions when you meet with your doctor. It is best to write your questions down in advance of your appointment.

• Bring a friend or relative to your medical appointment or if you are being admitted to the hospital. These can be stressful times and having another person present will help to prevent possible miscommunication from occurring between you and your doctor.

• While in the hospital make sure anyone administering treatment or medicine to you double-checks your ID bracelet.

• Once your diagnosis has been established make sure you fully understand the plan for treating your condition.

• When you are discharged from the hospital, make sure you have written discharge instructions and follow them faithfully.

• If any complications should arise after being released from the hospital do not delay in reporting them or seeking follow up care.

If you need further suggestions on how to improve communications with your health care provider to prevent hospital errors or the steps that need to be taken thereafter then you should contact Mark Davis, who has thirty years of experience in this area of law, at Curran Law Firm, P.S.

Posted 4/28/2014


Court of Appeals Affirms use of Anti-SLAPP Statute to Protect Free Speech

By: Kevin Jussel

In Davis, et al. v. Cox, et al., the Washington Court of Appeals recently affirmed the use of Washington’s anti-SLAPP statute to dismiss a lawsuit that sought to restrict constitutionally protected speech. The case involved members of the Olympia Food Cooperative and its Board of Directors. The anti-SLAPP (“Strategic Lawsuits Against Public Participation”) is a statutory mechanism for a party to summarily dismiss a lawsuit that was filed to restrict the exercise of their constitutional rights of free speech and petition.

The Co-op is a nonprofit corporation that adopted a Boycott Policy to allow its membership to restrict the Co-op from selling products that were the target of nationally recognized boycotts.

In 2009 and 2010, the members of the Co-op attempted to reach a consensus on whether to adopt a boycott of Israeli-made products. Because the members could not reach a consensus on the issue despite a lengthy debate, the Co-op’s directors adopted a resolution to approve the boycott and invited dissenting members to use the Co-op’s bylaws to challenge the decision. No member utilized this procedure.

In 2011, a group of five Co-op members brought a derivative lawsuit on behalf of the Co-op against the directors. The suing members claimed that the individual directors acted outside of the scope of their authority and breached their fiduciary duties to the Co-op. It is worth noting that the five members brought their lawsuit only after several of the individuals failed in their attempts to be elected to the Co-op’s board of directors—presumably, the members who brought the suit sought to take the places of those directors who had approved the boycott.

After the lawsuit was filed, the directors filed a special motion to strike the lawsuit pursuant to Washington’s anti-SLAPP statute. The statute’s purpose is to protect the exercise of the Constitutional rights of free speech and petition. In response to a motion to dismiss under the Washington anti-SLAPP statute, the Court must utilize a two-part analysis:

  1. The Co-op has the initial burden to show that the claim is based on an action involving public participation and petition. Public participation and petition includes any lawful conduct in furtherance of free speech in connection with an issue of public concern.
  2. If the Co-op met its burden, the members bringing the suit then bore the burden of showing the court a probability of prevailing on its claim through clear and convincing evidence.

The Co-op met its initial burden at the trial court, and the members could not reciprocate despite its numerous constitutional challenges to the anti-SLAPP statute. The trial court awarded $221,846.75 in attorneys’ fees to the defendants along with $10,000 in statutory damages to each of the 16 director-defendants—a total of $381,846.75 in damages.

On appeal, the Court of Appeals found that the boycott comprised of speech protected under the first amendment to the Constitution and that such speech was lawful under Washington’s anti-SLAPP statute. The Court of Appeals did, however, find merit in the members’ argument that the trial court had improperly weighed evidence establishing the members’ ability to succeed on its claims (Number 2, above). Despite the improper weight assigned to the members’ evidence, the Court found the error to be harmless—in approving the boycott, the directors exercised the authority granted to them in the Co-op’s governing documents. The Court sided with the directors on all facets of the members’ appeal and concluded its opinion by awarding the directors additional attorneys’ fees based on the members’ appeal.

If you have questions about business or corporate matters, contact Greg Haffner or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 4/14/2014


Ninth Circuit Affirms School District’s Restriction of Student Speech During Cinco de Mayo Celebration

By: Sam Chalfant

The Ninth Circuit Court of Appeals recently held that a school district did not violate the students’ first amendment rights when the district made the students change their clothing that bore images of the American flag during a school-sanctioned celebration of Cinco de Mayo. The court decided the case using the traditional student-speech framework found in Tinker v. Des Moines Independent Community School District. Under this analysis, a district may prohibit speech “that might reasonably [lead] school authorities to forecast a substantial disruption of or material interference with school activities.” According to the court, the district reasonably forecasted that the American flag shirts would cause a substantial disruption based on an altercation between white students and Latino students during the prior year’s Cinco de Mayo celebration. The district was also concerned that the students wearing the American flag may be targeted for physical violence during the celebration.

The decision received the ire of many commentators who accuse the Ninth Circuit Court of Appeals of creating a “heckler’s veto”—silencing a speaker in order to prevent undesirable behavior by the listener. In other words, the students’ speech was silenced in order to avoid physical violence perpetrated by the listeners. However, granting a heckler’s veto is not inconsistent with Tinker’s substantial disruption framework. While the district may have used other means to avoid the substantial disruption, such as canceling the Cinco de Mayo celebration or punishing the students who were threatening the flag-wearing students, Tinker does not require school officials to exhaust other means before resorting to restricting speech. As the Ninth Circuit stated: “Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence. We review with deference schools’ decisions in connection with the safety of their students even when freedom of expression is involved.”

If you have questions about school law, contact a member of the Curran Law Firm, P.S. School and Municipal Law group—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 3/20/2014


Chad Horner Named Managing Partner of Curran Law Firm, P.S.

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Curran Law Firm is happy to announce that Chad Horner has been named Managing Partner of the firm. Chad is a principal of Curran Law Firm who first started at the firm in 1997. Today, his practice focuses primarily in the areas of estate planning and probate, although he continues to represent employers and school districts.

Chad volunteers extensively in the community by providing free legal services to the needy at legal clinics and serving on boards that focus on providing care to children with disabilities and improving access to healthcare. In 2014, he began serving as a Pro Tem Commissioner on the King County Superior Court.

If you have questions about Estate Planning & Probate, Employment, LGBT Legal Services, or School & Municipal Law, contact Chad Horner at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 2/10/2014


Washington Court of Appeals Clarifies Eviction Notice Requirements for Landlords

By: J. David Huhs

The Washington Court of Appeals recently decided the case of Hall v. Feigenbaum and in doing so clarified eviction notice requirements for landlords. Feigenbaum involved a breach of lease by a commercial tenant for non-payment of rent. The lease provided that the tenant’s failure “to keep and perform any of the covenants and agreements [that] continues for twenty (20) days after written notice from Lessor” would entitle the Landlord to terminate the lease. The Tenant failed to pay rent for the months of September and October 2010. On November 5, 2010, the Landlord served the Tenant with a three-day notice to pay or vacate.

Washington courts require strict compliance with the time and manner requirements for service of eviction notices and strictly construe them in favor of tenants. On appeal, the Tenant argued that Landlord’s service of the three-day notice to pay rent or vacate was defective because the lease required 20 days’ notice of default before the Landlord could bring a legal action. The court rejected this argument and ruled in favor of the Landlord because the Landlord did not commence legal action until more than 20 days after service of the three-day notice to pay or vacate. Thus, the Landlord had complied with both the statutory notice requirements and the terms of the lease.

The Tenant also argued that because the summons and complaint were served by posting and mailing pursuant to court order, Tenant was entitled to 90 days to answer the summons under CR 4(d)(4). In rejecting this argument, the court found an inconsistency between the court rules and RCW 59.12. In particular, RCW 59.12.080 provides that the “summons must be issued as in other cases, returnable at a day designated therein, which shall not be less than seven nor more than thirty days from the date of service.” On appeal, the court reasoned that while civil rules govern unlawful detainer proceedings, the civil rules are inapplicable to the extent that they conflict with RCW 59.12. As a result, the court ruled that the shortened period of time set forth in RCW 59.12 applied, and held that tenant received sufficient notice and opportunity to answer the eviction summons and complaint.

If you have questions about real estate and business matters, contact John Casey, Greg Haffner, J. David Huhs, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 2/3/2014


Would a Washington Sperm Donor Be Required to Pay Child Support?

By: Mary Coleman

A great deal of attention has been paid to a case out of Kansas that is tagged with the headline: “Kansas court says sperm donor must pay child support.” In that case, a man donated sperm to a couple after responding to an ad on Craigslist, posted by two women searching for a donor. The man delivered sperm in a container, and the couple performed an artificial insemination procedure at home. The man signed documents waiving his parental rights. His only contact with the child was when he unexpectedly encountered the child and one of the mothers in a public location.

Five years later, one of the women applied for public assistance. When she did, the state initiated a child support action against the biological father. A Kansas court determined that the donor was the child’s father because Kansas law requires that a physician be involved in the artificial insemination process.

Had the conception of this child occurred under the same set of circumstances in Washington, Washington law states that the donor would not have been determined to be the father of the child.

In Washington, the parents of the child conceived by “assisted reproduction” (which includes in vitro fertilization, embryo transfer, and donation of eggs in addition to donations of sperm) are presumed to be the person who gave birth and her spouse or domestic partner, unless otherwise agreed in writing by the donor and the persons intending to be the parents. Washington law does not require that a physician be involved in the process of artificial insemination.However, assisted reproduction does not apply to a child conceived by means of sexual intercourse. If at-home artificial insemination fails, conceiving a child “the old fashioned way” could result in the donor being legally established as a parent of the child, even if that was not the intention of the parties at the time of conception.

If you have questions about parental rights or other family law issues, contact attorneys Theresa Ahern, Mary Coleman, or David Hobson at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 1/28/2014


Washington Attorney General Issues Opinion on Local Governments’ Ability to Regulate Marijuana-Related Businesses

By: Kevin Jussel

The Washington Attorney General recently issued an opinion to address whether local governments may exercise their powers to explicitly or effectively ban marijuana-related businesses from being established within their jurisdictions. Particularly, the opinion relates to: (1) whether Initiative 502 preempts counties, cities, and towns from banning marijuana-related businesses from their geographic jurisdictions; and (2) whether local ordinances that effectively ban marijuana-related businesses from operating in the local jurisdictions are valid if they properly exercise the local jurisdiction’s police power.

In both cases, the Attorney General sided with the local governments’ ability to regulate the interaction of Initiative 502 with their jurisdictions. Initiative 502 was approved by Washington voters on November 6, 2012. Among other things, the new law establishes a licensing and regulatory system for marijuana producers, processors, and retailers in Washington State.

Despite the new law, the Attorney General states that in Washington, there is a strong presumption against finding that state laws preempt local ordinances. Thus, Local governments maintain the power to regulate marijuana-related businesses within their jurisdictions. This authority is derived from the Washington State Constitution, which provides that “any county, city, town or township may make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws”—meaning that local law local laws are presumptively valid and constitutional unless the State regulatory scheme leaves no room for local regulation. In this case, the Attorney General found that the new State law does not preclude local regulation of marijuana-related businesses. In fact, the rules that govern marijuana-related business licensing make it clear that receipt of a license from the Washington Liquor Control Board does not entitle the licensee to locate or operate the marijuana-related business in violation of local rules or without any necessary approval from local jurisdictions. WAC 314-55-020(11).

The caveat is that local laws must be a reasonable exercise of the local jurisdiction’s police power, meaning that it must promote public safety, health, welfare and bear a reasonable and substantial relationship to accomplishing the purpose pursued by the local government. Assuming that the local ordinance passes this test and no other constitutional or statutory provision is at odds with the law, local jurisdictions have the right to regulate marijuana-related businesses to the extent that the State law permits such regulation.

If you have questions about real estate and business matters, contact John Casey, Greg Haffner, J. David Huhs, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 1/21/2014


Critical Steps Before Buying or Selling a Business

By: Greg Haffner

So you are considering buying or selling a business. Before you even think about preparing a purchase and sale agreement, whether for assets or ownership of an entity, you should consider three (3) less comprehensive, but equally important documents: (i) letter of intent; (ii) confidentiality/non-disclosure agreement; and (iii) non-competition and non-solicitation agreement. You should also always consult an attorney AND tax professional before concluding any purchase or sale of an ongoing business.

Letter of Intent. While this document is not necessary, many transactions begin with a simple letter of intent that outlines the primary terms of the transaction: what is being purchased, the purchase price, the payment terms, the parties, and other key issues that might be relevant such as employment of key personnel, non-compete and confidentiality provisions. Except for most confidentiality provisions, letters of intent (sometimes also called “memorandums of understanding” or “term sheets”) are generally not binding on the parties, and are merely expressions of intent to negotiate the terms of the transaction based on a mutual willingness to do so if the terms of the letter of intent are included. However, you should always be careful to include language in the letter of intent that clearly expresses the purpose of the document. When disclosure of confidential information is part of the negotiation process, the letter of intent can include a non-disclosure provision that expressly provides that it survives whether the transaction closes or not. In other words, that part of the letter of intent should be binding—better yet, it should be set out in a separate confidentiality and non-disclosure agreement so that there is no question about its effectiveness.

Confidentiality & Non-Disclosure. During negotiations, it is usually required that the seller disclose to the buyer that information about the business being sold that will sufficiently allow the buyer to determine the value of the business. The disclosure usually reveals information about the business that the seller wants kept confidential if the transaction doesn’t close. Existing or potential competitors are often the most likely buyers of ongoing businesses and you don’t want to just give them your secrets in the false hope that they will pay you later. A well-drafted confidentiality and non-disclosure agreement will sufficiently identify that information that is proprietary to the seller’s business and prevent not only its misuse but its disclosure to others and set forth a variety of optional remedies for your protection, including not only damages but injunctive relief to prevent further use or disclosure.

The buyer will have similar concerns if the transaction is seller financed, meaning the buyer is asking the seller to let the purchase be paid over time. The seller is then in the same position as a bank or lender and the buyer should expect the seller to ask the buyer to demonstrate the buyer’s financial condition so the seller can evaluate the risk of such financing. Any sensitive financial information should only be disclosed under the terms of a well written confidentiality agreement.

Non-Competition / Non-Solicitation. Finally, a seller may want to include a non-competition and non-solicitation agreement or include provisions for such in the letter of intent or other preliminary agreement so that the potential buyer doesn’t start his/her own competing business or hire away key personnel after taking a look at what makes the seller’s business work. Such provisions are standard in the purchase and sale agreement for the seller to promise not to compete against or solicit employees and customers from the buyer once the transaction closes, but they can also be used to prevent competition from a potential buyer who appears interested in the purchase, but could just be searching for information to allow him or her enter the field without making a purchase.

For help understanding and preparing these preliminary documents please contact the business attorneys at Curran Law Firm.

Posted 1/13/2014


Inherent Conflict between rights of Parents and Transgender Students in Public Schools

By: Sam Chalfant

The American Bar Association Journal recently reported that the parents of a seven-year-old transgender student from Colorado filed a civil rights complaint alleging that the child’s school district discriminated against the student by refusing to let her use the female restroom. The use of gender-specific restrooms in a public school is one of several novel legal issues that have been presented to school districts that have transgender students. Other legal matters include the student’s preferred pronoun use, participation in athletics, and bullying. However, one issue that the article fails to address is the potential conflict between parent and child regarding the child’s transgender status.

While the parents of the Colorado student supported her transgender status, this is not always the case. Parents may not support their child’s transgender status and may request that the school not accommodate the child’s desire to be treated as a member of the opposite biological sex. Similarly, although less common, parents may assert that their child is transgendered and request accommodations when it is unclear whether the child wishes to be treated in this manner.

In either instance, school administrators are placed in the middle of a conflict between the parent’s rights and the student’s rights. Unfortunately, no court has addressed whose rights the school administrator should respect. While the liberty interest of parents to raise their child in the manner they see fit is deeply engrained in our nation’s constitutional history, children are also “persons” under the constitution and possess constitutional rights. For example, parental and child rights have clashed with mixed results in an arguably analogous line of cases that weighed the rights of minors to access contraceptives at school against the intervening rights of their objecting parents.

Although courts have not yet addressed whose rights the school administrator should respect in instances of conflict between parent and child regarding the child’s transgender status, the increase in litigation regarding the rights of transgender students indicates that this issue will be the subject of future legal authority.

If you have questions about school law, contact a member of the Curran Law Firm, P.S. School and Municipal Law group—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 1/6/2014


The Status of Nonparental Visitation and Custody in Washington

By: Mary Coleman

Grandparents often question whether they have the legal right to visitation with their grandchildren.

The short answer is “no”.

Although a law exists in Washington which allows a person other than a parent to petition the Court for visitation with a child, this law was declared unconstitutional by the Washington State Supreme Court in April 2005. See In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 p.3d 405 (2005).The statute presumes that parents are capable of making decisions about who their child may see. For this reason, a parent has the absolute right to determine whether a child sees a grandparent or other family member. A parent’s right to have custody of his / her child may only be outweighed in two instances: (i) if the parent(s) of a child are unfit; or (ii) if actual detriment to the child’s growth and development would result from placement with an otherwise fit parent. In those circumstances, a non-parent (whether grandparent, aunt, neighbor, or family friend) may petition the Court to ask for custody of the child. Such an action must be brought in the county where the child permanently resides or can be found. The action may only be filed if the child is not in the custody of a parent at the time the case is filed, or if the party filing the case claims that neither parent is a suitable custodian.

Once the case is filed, the party filing the case must set a preliminary hearing to determine if the case will proceed to trial. At that hearing, the party filing the case must establish that the child is not in the physical custody of a parent or that neither parent is a suitable custodian, and must also set forth specific facts that, if proved, would show that either the parents are unfit or that placement with a parent would result in actual detriment to the child. If the moving party is unable to establish these facts, the case will be dismissed.

If the case is allowed to proceed, a parenting evaluator or a Guardian ad Litem will further evaluate the situation.

If you have questions about parental rights or other family law issues, contact attorneys Theresa Ahern, Mary Coleman, or David Hobson at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 8/23/2013


Washington Court of Appeals Affirms Independent Duty Doctrine

By: Kevin Jussel

Earlier this year, the Washington Court of Appeals, Division 2, issued a decision that further clarifies the extent of liability of parties who contract with each other. In Key Development Investment, LLC v. Port of Tacoma, the Court of Appeals found that one party to a contract could be liable to the other party for tort duties that exist independently from the parties’ contractual obligations.

In Key Development, the court addressed the “independent duty doctrine” in the context of a commercial real estate negotiation between the Port of Tacoma and Key Development. The Port originally sought to purchase property owned by Key Development as a result of the Port’s decision to condemn property owned by Superlon. The Port wanted to minimize the impact of the condemnation, and thus desired to find a nearby alternative location for Superlon to keep those jobs in Tacoma. Key owned suitable property and was approached by the Port as a potential for Superlon’s relocation.

But, according to Key Development, the Port represented to Key Development that it was a “certainty” that the Port was going to buy the property and it would be Superlon’s new location. The parties went so far as to sign a contract whereby it was agreed that the details of a purchase and sale agreement would be finalized very soon after the contract was executed. Based on these negotiations and the contract, Key Development did not take advantage of opportunities to sell and lease their property based on the Port’s representations of its intention to buy Key Development’s property. Ultimately, the Port elected to use a different plan that did not require the condemnation of Superlon’s property, which also eliminated the need to purchase Key Development’s land. Key Development was unable to sell its property for a comparable price and sued the Port for damages.

The Court outlined the history and development of Washington’s “independent duty doctrine.” In the past, the “economic loss rule” limited a party’s recovery only to its contractual remedies when a situation implicated both tort and contractual relief. However, a more recent body of law replaced the “economic loss rule” with the “independent duty doctrine”—a party may now be liable for tort damages that stem from duties that are independent from the contract between the parties.

In this case, the Court of Appeals found that potential tort duties existed independent of the contract between the Port and Key Development, and that the Port may have violated those duties. The Court stated that unless the Washington Supreme Court rules otherwise, Washington law recognizes causes of action for fraud, negligent misrepresentation, and tortious interference with a contract that are independent of a contract. Thus, Key Development will have an opportunity to prove its tort claims against the Port at trial.

If you have questions about real estate and contractual matters, contact John Casey, Greg Haffner, J. David Huhs, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 7/15/2013


Supreme Court Sides with Employers in Two Recent Cases

By: Chad Horner

Late in its 2012-13 term, the Supreme Court of the United States sided with employers in a pair of cases involving discrimination claims brought by employees.

In Vance v. Ball State University, the Court narrowed the definition of “supervisor” for purposes of Title VII, which is the principal federal law that prohibits discrimination in the workplace. The distinction between a supervisor and an ordinary co-worker is important because the employer is more likely to be liable for discrimination by a supervisor. Before Vance v. Ball State University, many courts and the Equal Employment Opportunity Commission maintained that “supervisors” included persons who could control the daily activities of other employees, as well as persons who could take tangible employment actions against an employee. But in Vance, the Court restricted the definition of supervisors to only those persons who may actually take tangible employment actions against the party alleging discrimination—such as hiring, discharging, or changing the employee’s salary.

In the second case, Univ. of Texas Southwestern Med. Ctr. v. Nassar, the Court addressed part of what employees must show to prove retaliation claims under Title VII. In particular, the Court addressed the “causation” element of a retaliation claim. Based on Nassar, employees must show more than the fact that the employer was motivated to retaliate against the employee. Now, the employee must show that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action by the employer. This is a different standard than ordinary Title VII claims where an employee alleges s/he has been discriminated against because s/he is in a protected class. In those cases, an employee may still prove “causation” even when discrimination wasn’t the “but-for” cause of the wrongful action against the employee.

If you have questions about employment matters, contact attorney Chad Horner at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 7/8/2013


J. David Huhs Named Rising Star by Super Lawyers Magazine

Curran Law Firm is proud to announce that attorney J. David Huhs has been named a Rising Star® as one of the top up-and-coming real property attorneys in the state of Washington in 2013, according to Washington Law & Politics’ Super Lawyers Magazine. The Rising Star® distinction is based on a selection process involving informal and formal nominations, peer evaluation by practice area, and other indicators of professional achievement. Each year only 2.5 percent of the attorneys in Washington State who are under the age of 40 or have been in practice for less than 10 years receive the Rising Star® distinction.

Posted 6/28/2013


Your Business and the Patient Protection and Affordable Care Act

By: Greg Haffner

The Patient Protection and Affordable Care Act was enacted to ensure Americans have access to quality, affordable health insurance.

The United States Small Business Administration prepared an excellent website describing how the Act applies to different-sized small businesses, from self-employed individuals to those companies with more than 50 employees: http://www.sba.gov/healthcare.

If you have questions about how your business might be affected by the Affordable Care Act, check out this very helpful site, or contact attorneys Greg Haffner, Chad Horner, or Kevin Jussel at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 6/24/2013


Post-Secondary Educational Support in the State of Washington

By: Theresa Ahern

Courts in Washington have broad authority to require parents who are subject to a child support order (e.g., divorce, paternity, or third party custody) to pay post-secondary educational support for their children. Post-secondary educational support may include tuition at an accredited college or vocational school as well as costs for housing, food, books, supplies and even transportation.

To award post-secondary educational support, a judicial officer must determine that a child is “in fact dependent” and relying on his or her parents for the necessities of life. RCW 26.19.090 sets forth a number of factors for the court to consider in establishing a parent’s obligation for post-secondary education support such as:

Child Support orders typically include a paragraph regarding post-secondary support. If your support order did not address post-secondary educational support and you want the court to order payment of post-secondary expenses, you will need to file a petition for modification and allege that a “substantial change in circumstances” has occurred since the original support order was entered. If your support order is silent on the issue or if the issue was reserved, a Petition for Modification of Child Support must be filed before the order of child support terminates, which in most cases is age 18 or the child’s graduation from high school. Failure to timely file a petition for modification before support terminates will result in the court losing jurisdiction to order any post-secondary educational support for your child. Thus, it is important to address your child’s post-secondary educational needs well before your child finishes high school or reaches age 18.

Typically, parents will pay their portion of post-secondary educational costs directly to the institution If that is not feasible, then payments are made to the child. Post-secondary educational awards are not mandatory. If a parent is financially unable to help with a child’s post-secondary educational support, the court has the option of not requiring that parent to make any contribution. There are many ways to structure post-secondary educational support and each person’s situation is unique.

If you have questions about post-secondary educational support or other family law questions, please contact Theresa Ahern or Mary Coleman at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation in South King County.

Posted 6/17/2013


New Washington Employer Social Media Law to go into Effect

By: Kevin Jussel

The law governing employers’ access to their employees’ social media profiles is about to change. On May 21, 2013, Washington Governor Jay Inslee signed SB 5211. The Bill adds rules to protect the privacy of the login information and content of employees’ social media outlets of choice—such as Facebook, Instagram, or Twitter.

Specifically, an employer may not:

There is a narrow exception to these rules. The employer may request the content of an employee’s social media account information if the: (i) request is to make a factual determination in the course of conducting an investigation; (ii) employer’s investigation is in response to it receiving information about the employee’s social media activity; and (iii) the purpose of the investigation is to ensure compliance with applicable laws or investigate the unauthorized transfer of sensitive information.

Finally, the law imposes potentially serious consequences on any employer that runs afoul of the rules. An employee has the right to bring a civil suit against the employer, and may be awarded a statutory penalty, any actual damages that the employee suffered, and the employee’s attorneys’ fees and costs. The employer, on the other hand, may only recover their attorneys’ fees and costs if it can show that the employee’s action was frivolous. See RCW 4.84.185.

The law goes into effect on July 28, 2013.

If you have questions about employment law matters or how SB 5211 affects your business, contact Chad Horner at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 6/11/2013


Off-Campus Search of Student Vehicle Declared Unconstitutional by Nebraska Supreme Court

By: Sam Chalfant

In J.P. v. Millard Public Schools, a high school student violated school policy when he went to his off-campus vehicle during school hours. After being informed of the student’s violation of school policy, the school’s assistant principal searched the student’s vehicle and discovered drug paraphernalia. The student objected to his resulting suspension on the theory that the search violated his Fourth Amendment rights.

The Fourth Amendment protects people from unreasonable searches and seizures. The prohibition against unreasonable searches and seizures applies to actions by state officers, including public school officials, and generally requires that the officer have probable cause to conduct a warrantless search. However, in New Jersey v. T.L.O, the U.S. Supreme Court established a relaxed reasonableness standard for school searches in light of the substantial need of teachers and administrators for freedom to maintain order in the schools.

While a lower court viewed the student’s Fourth Amendment claim as raising the issue of whether the relaxed T.L.O. standard applied to off-campus searches, the Nebraska Supreme Court concluded that the issue was actually whether school officials had authority to conduct an off-campus search in the first instance. The court observed that school districts are a creature of statute and only possess those powers granted by the legislature. Since Nebraska’s Student Discipline Act only permitted school officials to discipline student misconduct that occurred on school grounds, in school vehicles, or at school-sponsored events, the court concluded that school officials’ authority to conduct searches was similarly limited to these areas. Based on this jurisdictional limitation, the court held that school officials lacked the authority to search the student’s off-campus vehicle.

No Washington court has evaluated an off-campus search similar to the search conducted in J.P. v. Millard Public Schools, and it is unclear whether Washington courts would analyze the issue in a similar manner as the Nebraska Supreme Court. Unlike Nebraska, Washington does not have a statute that limits the jurisdiction of a school official’s disciplinary authority. Instead, WAC 392-400-225(1) delegates responsibility to individual school districts to “adopt, publish, and make available … written rules which state … the types of misconduct for which discipline … may be imposed.” Even if Washington courts were to follow Millard, a statewide rule may not be apparent.

If you have questions about school law, contact a member of the Curran Law Firm, P.S. School and Municipal Law group—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 6/3/2013


Legislature Gives Banks Opportunity to Redeem After Foreclosure of Condominium Assessment Lien

By: J. David Huhs

Last year, the Washington State Court of Appeals ruled that GMAC Mortgage, LLC was not allowed to redeem property that was judicially foreclosed by a condominium association as a result of a unit owner’s failure to pay assessments. See Summerhill Village Homeowners Ass’n v. Roughley, 289 P.3d 645 (2012).

The Summerhill decision hinged on Washington’s redemption statute, RCW 6.23.010. The redemption statute provides that only lien holders who are “subsequent in time” have the right to redeem foreclosed property. Because GMAC’s deed of trust was perfected against the subject property prior to perfection of the Association’s assessment lien, the Court found that GMAC was not “subsequent in time”—GMAC was not entitled to redeem the property (i.e., buy the property back for the amount paid by the purchaser at the sheriff’s sale plus statutory costs). In addition, the Court also found that foreclosure of the Association’s super-priority assessment lien arising under RCW 64.34.364(3) wiped out GMAC’s deed of trust against the subject property. The end result was that the subject property was sold free and clear of GMAC’s mortgage to the successful bidder at the sheriff’s sale for $10,302. See also BAC Home Loans Servicing LP v. Fulbright, 289 P.3d 779 (2013).

The Washington legislature responded to the Summerhill decision with Senate Bill 5541. The new law amends Washington’s redemption statute to provide that a lienholder who is “subsequent in priority”—as opposed to “subsequent in time”—may redeem property that has been foreclosed. This means that mortgage lenders who are foreclosed by a condominium association’s super-priority lien will now have the opportunity to redeem property foreclosed on by the condominium association or other lienholders. The changes to the law go into effect July 28, 2013.

If you have questions about condominium and homeowners’ associations, contact J. David Huhs at Curran Law Firm, P.S.—Experienced, dedicated, and responsive legal representation located in South King County.

Posted 5/28/2013


Establishment of Parentage in Washington

By: Mary Coleman

In Washington, there are a number of ways in which a person may be legally established as the parent of a child. These methods apply equally both to couples of the same and opposite sexes who have children together.

Parentage may be established by:

  1. Giving birth, with exceptions for surrogates;
  2. Entry of a court order establishing parentage;
  3. Adoption;
  4. Signing an acknowledgment of paternity;
  5. Consent to assisted reproduction with a spouse or domestic partner;
  6. A surrogate contract;
  7. Marriage or domestic partnership where a child is born during the marriage / partnership or within 300 days after the marriage / partnership is terminated;
  8. Marriage / domestic partnership after the birth of the child where the person is named as the child’s parent on the birth certificate with his/her agreement and has promised to support the child as his / her own; or
  9. Residing in the same household as the child for the first two years of the child’s life and holding the child out as his / her own.

Recent case law established yet another type of parenting relationship with a child, referred to as a “de facto” parent. A de facto parent is a person who stands “in legal parity” with a legal parent. Certain criteria are used to establish whether a person has standing as a “de facto” parent, including that the: (1) Natural or legal parent consented to and fostered the parent-like relationship; (2) Person and the child lived together in the same household; (3) Person assumed obligations of parenthood without expectation of financial compensation; and (4) Person has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. An adult will only be recognized as a de facto parent is when s/he has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life. Where a child has two legally established parents, a step parent will not be considered to be a “de facto” parent.

The Washington State Supreme Court heard oral argument in September 2012 on a case that addressed whether a “de facto” parent may exist where one of a child’s legal parents is deceased. A ruling has not yet been entered. See In re Custody of B.M.H., 165 Wn. App. 361, 267 P.3d 499 (2011), review granted 173 Wn. 2d 1031, 277 P.3d 668 (Apr. 24, 2012).

If you have questions concerning family or domestic matters, contact Mary Coleman, Theresa Ahern, or David Hobson at Curran Law Firm, P.S.

Posted 5/20/2013


“First Sale” Doctrine Applies to Works Lawfully Published and Sold Abroad

By: Kevin Jussel

The Supreme Court of the United States recently wrestled with the issue of whether a copyright holder has the right to enforce its ownership rights on a copy of a textbook that is lawfully printed and sold to the original purchaser outside of the United States. Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697, 133 S.Ct. 1351 (2013).

Applicable Copyright Laws. The Copyright Act grants the owner of a copyright certain rights, including the right to distribute copies of the work to the public by sale or other transfer of ownership. The owner’s exclusive rights are limited by various exceptions such as fair use and, relevant to Kirtsaeng, the “first sale” doctrine. The first sale doctrine permits the downstream owner of a particular, lawfully made copy of the original work to transfer possession of that copy. In other words, the when a copyrighted work is purchased, the original copyright owner’s exclusive right to distribution is exhausted.

Kirtsaeng. John Wiley & Sons, Inc. publishes academic textbooks. Wiley’s textbooks that are published for consumption outside of the United States have fine print that prohibits those foreign copies from being taken into the United States without Wiley’s permission. Mr. Kirtsaeng, a citizen of Thailand, completed his undergraduate and doctoral program in the United States. While in school, he had his family purchase copies of the foreign edition of his textbooks—which are substantially cheaper than the domestic versions—and mail them to him in the United States. Mr. Kirtsaeng would then sell the textbooks in the United States and retain the profit. Wiley sued him for infringing its ownership rights in the copyrighted work.

The Court found in Mr. Kirtsaeng’s favor—the “first sale” of the foreign textbooks to his family in Thailand extinguished Wiley’s right to control the downstream distribution of the textbooks. Notably, Justice Breyer concluded that the United States Copyright Act does not contain a geographical restriction for the “first sale” doctrine to apply. The Court’s ruling overturns law previously applicable in Washington and the rest of the Ninth Circuit. See Denbicare U.S.A. Inc. v. Toys “R” Us, Inc., 84 F.3d 1143, 1149–1150 (9th Cir. 1996).

If you have questions about intellectual property matters, contact Kevin Jussel at Curran Law Firm, P.S. — Experienced, dedicated, and responsive legal representation located in South King County.

Posted 5/12/2013


Tips for Selecting a Nursing Home

By: Mark Davis

For more than thirty years, Curran Law Firm has represented clients whose loved ones have been subjected to abuse or neglect while residing in nursing homes. Unfortunately, the growing need for nursing home services has also increased the instances of elder abuse and neglect.

Based upon our experience, there are several resources that you may use to identify nursing home and long-term care facilities that should be avoided:

Nursing Home Compare. A good place to start is by conducting a search at the Nursing Home Compare website.

This site is operated by the Centers for Medicare & Medicaid Services (“CMS”). The site lists every nursing home in the United States that receives funds from Medicaid or Medicare, and provides basic data obtained from federal and state facility inspections. The site will not necessarily help you to identify good facilities, but it may raise red flags for potentially unsafe providers. Pay careful attention to any nursing home that shows serious deficiencies or demonstrates a pattern of recurring problems. You will want to avoid any nursing home that carries what is known as an “SFF tag,” which means it is on a Special Focus Facility watch list maintained by CMS.

DSHS Facility Locator. Nursing homes operating in the State of Washington are licensed and regulated by the Department of Social and Health Services (“DSHS”). The agency’s Assisted Living Facility Locator provides additional background information for Washington nursing homes and long-term care facilities.

You will first need to select the county where the nursing home is located and then run your search. Pay careful attention to any enforcement letters issued by DSHS. You may also review the actual enforcement letters that DSHS sent to a facility to gather more information.

Court Filings. It is relatively easy to determine if a nursing home has been sued in the past through the Washington Courts website.

However, there are a couple of caveats to bear in mind. First, a lot of nursing homes are now owned by a parent company—you will need the parent company’s name to run an accurate search. Second, nursing homes are increasingly inserting arbitration clauses into their contracts. Arbitration not only avoids having their claim history become a matter of public record, but also tends to have a dampening effect on the amount of compensation for claims that are resolved through litigation.

If you or someone you know has questions involving medical malpractice and personal injury matters, including elder abuse and neglect, contact Mark Davis at Curran Law Firm, P.S.

Posted 5/6/2013


Curran Law Firm Attorneys Prevail at Washington State Supreme Court in Trust and Estate Dispute

By: Chad Horner

On January 17, 2013, the Washington State Supreme Court issued a decision in Manary v. Anderson. Two Curran Law Firm attorneys, John Casey and Andrea Schiers, briefed, argued, and ultimately prevailed on the case.

The case involved a dispute over language in a will. In that will, the decedent included a bequest of real property to his friend and caretaker. The central complication with this gift was that the real property was owned by a trust, and the trust designated different beneficiaries of the real property than the will. The trial court ruled that the will could not dispose of the property, in part because the property was owned by the trust.

But the Washington State Supreme Court disagreed, and ruled in favor of Curran Law Firm’s client. It ruled that under Chapter 11.11 RCW (the “Disposition of Nonprobate Assets Act”), the owner of real property can dispose of it through his will even though a previous designation in a trust would have disposed of it to a different person—even when the will does not reference the trust.

Posted 4/29/2013


David Hokit named Managing Partner

David HokitDavid Hokit has been named Managing Partner of the firm. Dave has practiced with Curran Law Firm since 1983. His practice is devoted to the representation of public school districts in Washington State.

Posted 4/19/2013


Sam Chalfant is the newest associate at Curran Law Firm

Sam ChalfantCurran Law Firm is very excited to announce the addition of a new associate, Sam Chalfant.

Sam graduated from the University of Wisconsin in 2012 with a Master of Science in Educational Leadership & Policy Analysis and Juris Doctorate degree from The University of Wisconsin Law School.

Posted 4/18/2013


Greg Haffner to be President of the Rotary Club of Kent

Greg HaffnerGreg Haffner will be President of the Rotary Club of Kent starting July 1, 2013. The club is 55 years old with more than 65 members. The Rotary Club of Kent raises more than $100,000 each year that is returned to the community in the form of scholarships, grants and program support. Members also volunteer at Rotary First Harvest (a food bank supplier), Hungry Soul Café (a community dinner source), the Fishing Experience (with Kent Parks) and the Kent School District High Schools (recognizing Students of the Month and Top Seniors and putting on ethics programs).

Posted 4/18/2013


Curran Law Firm
555 West Smith Street, Kent, WA 98032
47.383089-122.238697
Phone: 253.852.2345
Fax: 253.852.2030