Legal OpinionsExpert Knowledge for Nevada Business Leaders

 

Legal knowledge is worth its weight in gold, and rarely free. Legal Opinions has compiled a host of attorneys, experts in their field, to provide information and resources on a variety of topics. Nevada Business Magazine has been publishing this feature since 2014. Articles in the 2025 edition of Legal Opinions offer advice to business owners and executives on issues directly affecting their workforce, bottom line and future efforts.

Home Means Nevada: Corporate Migration to the Silver State

By Albert Kovacs, Shareholder and Molly Marias, Associate, Brownstein Hyatt Farber Schreck

Across the country, a decisive shift is underway. Nevada has become a premier destination for corporate organizations, attracting established public companies and startups alike. This shift is unsurprising given Nevada’s favorable regulatory environment, stable and predictable statute-focused governance structure, and robust legal framework. A move to Nevada offers significant legal and economic benefits, and companies that choose to relocate and call Nevada “home” could gain a distinct competitive edge in today’s dynamic business environment.

Nevada’s statute-focused approach to corporate governance law offers meaningful protection, as well as stability and predictability, for directors, officers and stockholders. Most notably, the Nevada Revised Statutes (“NRS”) codify the fiduciary duties of directors and officers, as well as a limited fiduciary duty for controlling stockholders, and provide clear boundaries surrounding corporate actions that could affect stockholder rights. This predictability not only engenders less reliance on judicial interpretation, but could also reduce the risk of litigation in the first instance. Delaware’s corporate governance regime, by comparison, is shaped largely by case law, which often results in ambiguous or conflicting interpretations that necessitate even further court intervention to resolve disputes. Many companies view Nevada’s statutory framework as a welcome counterbalance—one created with the intent to minimize disruptive, non-meritorious litigation through statutory clarity and disciplined judicial focus.

Also in contrast to Delaware—which generally prompts directors to act primarily (and in some circumstances, solely) with an eye towards maximizing stockholder value—Nevada law takes a less myopic approach and empowers officers and directors to consider a broad range of interests when making decisions. Under NRS 78.138, for instance, directors and officers may “consider all relevant facts, circumstances, contingencies, or constituencies,” including: the interests of the corporation’s employees, suppliers, creditors and customers; local and national economies; the interests of the community and society; and of course, the long-term or short-term interests of the corporation or the stockholders.

Nevada’s commitments to efficiency and legal predictability are poised to deepen with the proposed creation of a dedicated business court, either by way of constitutional amendment or through judicial initiative. The new business court, however structured, should provide a dedicated venue for adjudicating corporate and commercial matters with access to sophisticated judges selected based on their business expertise. As to the constitutional amendment, both the Nevada Assembly and Nevada Senate approved Assembly Joint Resolution 8 (“AJR8”) during the 2025 legislative session, which proposes an amendment to the Nevada Constitution to establish a dedicated business court with exclusive jurisdiction to hear disputes involving, among other things, stockholder rights, mergers and acquisitions, fiduciary duties, business receiverships, and commercial or contractual disputes between business entities.

As to the judicial initiative, the Nevada Supreme Court is entertaining a petition to create a “Commission to Study the Adjudication of Business Law” (the “Commission”), which would bypass the need for AJR8’s constitutional amendment and instead create a dedicated business court by working within the State’s existing court system. The Commission aims to streamline the business court’s creation and eliminate the uncertainty and time associated with getting a constitutional amendment approved, all while preserving the key benefits that a dedicated business court would afford companies domesticated in Nevada.

Either way, the legislature’s and judiciary’s push to establish a dedicated business court signals an intent to ensure Nevada companies have prompt and ready access to a sophisticated business court equipped to efficiently resolve complex business and commercial disputes. When considered alongside the State’s statutory regime, Nevada presents a compelling case as a corporate domicile that makes the recent influx of new companies unsurprising. The State’s legal and regulatory environment prioritizes corporate needs, provides consistency and predictability in corporate governance, and advances an expansive view of corporate purpose. Together, these developments reinforce Nevada’s position as a preeminent destination for modern business entities.

Operating Your Business Under Increased Potential for ICE Raids

By David B. Dornak, Partner and Brandon Born, Associate, Las Vegas Fisher Phillips

In recent months, businesses across the United States have been affected by escalating enforcement actions from Immigration and Customs Enforcement (ICE), with Nevada seeing a staggering 289 percent increase in daily ICE arrests since June 2024, according to the New York Times. These increased enforcement efforts are being felt by companies across a variety of industries, particularly those with a high concentration of immigrant workers, that are faced with the looming potential of ICE agents unexpectedly showing up to conduct worksite raids. As a result, some businesses in the Las Vegas Valley have altered their operations and, in extreme cases, temporarily closed their doors altogether rather than risk becoming a target.

The threat of ongoing ICE raids can lead to increased employee tension and workplace disruptions, making it crucial for business owners to understand how to manage potential labor concerns and properly handle an ICE raid at their worksite to minimize interference with business operations. Even in non-union workplaces, immigration enforcement may trigger protected activity – and mishandling employee walkouts or protests could create additional legal risks.

Employees who collectively decide not to report to work because they fear a raid may occur could be protected by the National Labor Relations Act (“NLRA”) – regardless of whether your workers are unionized. Although employees are generally not protected if their refusal to work is personal in nature, the NLRA comes into play when employees initiate action among coworkers over work-related issues or bring complaints about workplace management. These same protections have generally been extended to undocumented workers for their participation in collective action. Employees who choose not to report for duty may be deemed to be collectively refusing to work in protest of the raids, which could fall under the NLRA’s protection despite your legitimate interest in maintaining normal productivity levels. But those who confine their protests to broad-based government action unrelated to workplace concerns are generally not afforded such protection.

Managers must be trained to engage with employees regarding their concerns over the possibility of worksite ICE raids in a neutral, supportive manner and avoid threatening discipline to employees for any legally protected concerted activity. Although you can remind employees that they will not be paid for time spent off the job protesting, make sure your managers understand they should not threaten or discipline anyone for engaging in lawful protests or walk outs. Dealing with walk outs or protests can be tricky, even for labor specialists, and requires an analysis of the entire factual background leading up to the situation before taking disciplinary action.

Employers must also exercise careful consideration in their handling of employees’ protected activities during times of heightened immigration enforcement. At the same time, it is important to prepare clear procedures to respond effectively and compliantly during an ICE raid.

Designate a trustworthy manager who can clearly and professionally interact with ICE officials on-site. Upon ICE’s arrival, the manager should check the validity of any search warrant to ensure it is signed by a judge and immediately forward a copy to legal counsel. However, recognize that when ICE agents present a search warrant, they will insist on immediate access to your premises and records. There is no waiting period to prepare documents, and a search will proceed regardless of whether you or your attorney are present.

At the same time, assign a representative to observe and document ICE’s activities by recording all items and information seized and share these details promptly with your legal counsel. It is critical not to obstruct, hide employees, destroy documents, or provide false information. Advise employees that they are free to speak with ICE agents if questioned, but need not do so without the presence of legal counsel.

Preparing your management to handle worksite ICE raids and address your employees’ concerns over potential raids can minimize interruptions to your business and adverse legal outcomes.

Responding to a Charge of Discrimination

By By Mark A. Hutchison, Partner, and Piers R. Tueller, Senior Associate, Hutchison & Steffen

When an employer receives notice from the Nevada Equal Rights Commission (NERC) or the Equal Employment Opportunity Commission (EEOC) that a current or former employee has filed a “Charge of Discrimination,” it can be frustrating and confusing. NERC and the EEOC are the state and federal entities charged with enforcing anti-discrimination laws. Employment discrimination is a broad term that can arise in numerous circumstances due to employees’ membership in legally protected categories such as race, sex, age, or religion. In bringing a charge against their employer, employees have the ability to “dual file” with NERC and the EEOC. However, an employer will likely only need to respond to the agency who has processed the charge. Regardless of who is investigating the claim, employers must not ignore the charge of discrimination. Ultimately, the NERC process is straightforward.

Notice of Charge of Discrimination to Employer – The notice of a pending charge will provide the basic allegations against the employer. In response, the employer is able to: (1) provide a written settlement, (2) participate in an informal settlement conference and submit a position statement, or (3) waive the informal settlement conference and submit a position statement.

Informal Settlement Conference – For cases assigned to the NERC mediation program, the parties will be invited to participate in an informal settlement conference. This conference is generally held by telephone. Participation is voluntary and the conference is confidential. A NERC mediator not associated with the investigation will conduct the conference.

NERC Investigation – Should the matter be remanded to investigation, the assigned investigator may take the following actions to determine the validity of the charge:(1) request a response from the employer to the charge and request information related to the allegations; (2) contact the complainant for further information relevant to the charge; (3) review third parties information, including physicians or other agencies; (4) interview witnesses; and/or (5) visit the site of the alleged discrimination. An employer’s position statement is of paramount importance as it acts as a road map for the investigator and should assist in both the investigatory process and in subsequent litigation.

Determination of Cause/No Cause – After the investigator has collected all of the facts necessary to resolve the charge, the parties will be informed, on the basis of the evidence examined, that there is or is not probable cause to believe that discrimination occurred.

After the investigation, if NERC determines that an unlawful practice has occurred, attempts to mediate between the parties by means of conciliation can again be made. If those attempts fail, NERC may proceed by holding a public hearing, seeking redress from the district court, or referring the matter to an appropriate federal agency. The complainant may also proceed with litigation without the involvement of NERC. However, if NERC holds a public hearing on the charge, the complainant may not proceed in any other forum.

Moreover, it is important to note that in the event NERC/EEOC makes a determination of no probable cause, the complainant still has the right to proceed with the procedures outlined in NRS 613.420 or can request a “Right to Sue Letter” from the EEOC. An employee is able to file an action in either state or federal court (if the charge has been dual filed with the EEOC). Nevada statutes dictate filing timelines and should be monitored closely.

Ultimately, NERC charges are serious. Upon receipt of a notice, an employer should immediately collect and preserve all relevant documents and information concerning the charge. Furthermore, if the employer has not already done so, it should identify relevant witnesses, investigate the circumstances surrounding the charge, and otherwise begin to collect information that can assist in defending against the allegations asserted by the employee. Importantly, an employer should seek competent legal counsel to advise and defend against these types of reputation-damaging claims and ensure the strict legal requirements governing them are satisfied.

Paving the Way for a Successful M&A Deal

By Krisanne S. Cunningham, Managing Partner and Hailey C. Nicklin, Associate, Rice Reuther Sullivan & Carroll

Proactive preparation prior to a merger or acquisition (M&A) can enhance a company’s appeal, streamline the buyer’s due diligence, and maximize valuation. This article details actionable steps that owners can take to optimally position their company for a future M&A transaction. For the best results, consider beginning preparations 18 months or more in advance.

During the M&A preparation phase, ideally 18 or more months before a potential sale, sellers should engage a corporate and tax attorney to review and address ambiguities in governing documents and material contracts and optimize the company’s corporate/tax structure (for example, ensuring eligibility for favorable tax structures). Additionally, companies should review their capitalization table to confirm accurate ownership records, including any incentive equity issuances such as stock options and profits interests, to prevent delays during the buyer’s due diligence process. Sellers should also confirm that major decisions, including governance changes and financing, are appropriately documented through board and shareholder meeting minutes or written consents, creating a clear record for buyer review. This proactive approach enhances buyer confidence and streamlines the transaction process.

Companies should also organize all material contracts – such as customer and supplier agreements, leases, loan documents, and license agreements – ensuring that each is fully executed, dated, and accompanied by all amendments, exhibits, and schedules. For businesses reliant on intellectual property, documenting invention and IP assignments with employees and contractors and verifying the ownership and registration of patents, trademarks, and copyrights is essential. Furthermore, companies should maintain up-to-date records of all permits, licenses, and certifications, verifying their currency and potential transferability upon sale.

Buyers typically spend considerable time reviewing the financial performance of the seller prior to closing. To instill confidence and streamline due diligence, sellers can prepare comprehensive financial statements — balance sheets, income statements, and cash flow statements — ahead of time, for at least the past three years and the year to date (YTD), ideally ensuring compliance with Generally Accepted Accounting Principles (GAAP). Engaging a reputable accounting firm to review or audit these statements can enhance credibility, uncover discrepancies, and address potential red flags. Additionally, companies should compile records of key financial metrics, such as recurring revenue, customer concentration, and historical working capital, to provide buyers with a clear picture of financial health and operational efficiency. Financial experts can help provide critical insights into valuation, projections, and financial statement accuracy, bolstering buyer confidence.

To minimize risks and enhance appeal to buyers, companies should proactively address potential legal liabilities and document ongoing or threatened litigation, claims, or disputes. This documentation should include case summaries and status and estimated potential financial exposure. For employment-related matters, companies should ensure that employee handbooks, non-compete agreements, and benefit plans align with federal and state labor laws. Additionally, consider reviewing independent contractor classifications to confirm compliance with IRS and Department of Labor guidelines, mitigating risks of misclassification claims that could lead to costly penalties.

By proactively addressing legal, financial, employment, and regulatory matters with expert guidance in advance – ideally 18 or more months before the transaction – companies can address potential deal breakers, streamline the due diligence process, and enhance their attractiveness to buyers. Assembling a multidisciplinary team of seasoned advisors – including corporate and tax counsel, accounting professionals, and financial experts – equips sellers to navigate the intricate due diligence and negotiation phases of an M&A deal with confidence. This preparation not only maximizes valuation but, also positions the company for a smoother, more favorable M&A outcome.

Nevada’s Regulatory Expansion: SB 46 and the Future of Gaming Oversight

By Glenn Light, Partner and Karl Rutledge, Managing Partner, Womble Bond Dickinson (US)

Nevada lawmakers are serious about gaming integrity, and Senate Bill 46 expands the Nevada Gaming Control Board’s authority to regulate the state’s gaming industry. The bill took effect July 1, 2025, after Gov. Joe Lombardo signed it into law.

Perhaps the biggest change is that SB46 empowers the board to pursue disciplinary actions and tax collections even if an individual attempts to surrender their gaming license.

The change comes following the board’s disciplinary action against casino owner Steve Wynn, who faced allegation of sexual misconduct from former employees. Wynn stepped down as Chairman and CEO of Wynn Resorts in 2018. Subsequently, the board filed a complaint seeking to bar Wynn from holding a gaming license.

Wynn and his attorneys claimed that since he had resigned from his position and sold his stock in the company, the board no longer had jurisdiction over him. A Clark County District Court Judge sided with Wynn, determining that since he no longer worked in the gaming industry and had sold his interest in Wynn Resorts, the board lacked jurisdictional control.

The Nevada Supreme Court overturned the lower court’s decision on procedural grounds, saying the Nevada Gaming Commission needed to make a determination before the courts heard the dispute.

In 2023, Wynn and the board reached a settlement, with Wynn paying a $10 million fine and agreeing to never again be involved in Nevada’s gaming industry. The question of the board’s jurisdiction was left unanswered.

But SB46 settles the issue. The bill says that the board and commission retain authority even after a person, “is no longer engaged in the activity or position for which board or commission approval was required.” The surrender of a gaming license now does not take effect until the board approves it.

The bill also mandates that the Nevada Gaming Commission establish clear regulations for the surrender process, including a defined timeframe for the board’s jurisdiction following such attempts. Gaming industry officials will need to monitor the board’s website for the scheduling of regulatory workshops and publication of draft regulations.

Another key change is that SB46 increases the financial penalties for violations of Nevada’s gaming regulations. Previous law capped the fines for each reported violation at $250,000. But now, violators may be fined up to $500,000 for each separate violation that is the subject of an initial complaint. Subsequent violations may be fined at the rate of $1 million per complaint.

The bill also expands the reach of the Nevada Gaming Control Board to include, “persons who conduct a tournament or contest on behalf of, or in conjunction with, a gaming licensee.” Such event promoters now may need to be licensed or pass a finding of suitability to do business in Nevada.

SB46 reflects a shift toward more aggressive enforcement and oversight. It’s a clear sign that Nevada means business when it comes to gaming integrity—and companies operating in the state need to pay attention.