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NEVADA SUPREME COURT MARCH 2021

Nobody wants to be the lawyer who cites outdated law in court. 

Well, I suppose there are some who might, but that seems like a questionable career choice. 

If you want to stay up to date on the law, but don’t have time to read multiple Nevada Supreme Court opinions, I’ve got you covered with a summary of the latest and greatest from Nevada’s highest courts.  Get in loser.  We’re going lawyer-ing. 

GUZMAN v. JOHNSON, 137 Nev. Adv. Op. 13 (March 25, 2021)

In Guzman, the Nevada Supreme Court addresses the pleading standard which a plaintiff must meet to rebut the business judgment rule and sufficiently assert a claim seeking to hold a corporate direct individually liable for breach of fiduciary duty under NRS 78.138(7).  A minority shareholder filed a class action against directors of a company involved in a corporate merger transaction, and alleged that the directors breached their fiduciary duties to the shareholder.  The district court granted the individual director’s motion to dismiss based, because it found that the shareholder’s general allegation that the directors were “interested parties” was not sufficient to rebut the business judgment rule.  The Nevada Supreme Court held that NRS 78.138(7) requires a plaintiff to both rebut the business judgment rule and show a breach of fiduciary duty involving intentional misconduct, fraud or a knowing violation of the law.  It rejected the appellant’s argument that a general allegation of interested directors that does not plead specific facts demonstrating “interest” was sufficient to rebut the business judgment rule and shift the burden onto the directors to prove good faith. 

SMITH v. ZILVERBERG, 137 Nev. Adv. Op. 7 (March 4, 2021)

In this YouTube star showdown, two professional thrifters (i.e., people who purchase and resell used goods and antiques) took to social media to accuse another professional thrifter of bullying and misogyny.  Did they have the receipts to prove it?  We’ll never know because the Nevada Supreme Court affirmed the district court’s dismissal of the embattled thrifter’s defamation claim against the two professional thrifters under Nevada’s anti-SLAPP statute.  As you may or may not know, Nevada’s anti-SLAPP statute protects against lawsuits based upon good faith communications in the furtherance of the right to free speech in direct connection with an issue of public concern.  NRS 41.660.  Although a statement about a public figure is not per se a statement about a matter of public concern, a statement about a public figure in direct connection with the services they provide the public may fall within Nevada’s anti-SLAPP statute, and, the NVSC found, did in the facts of this case.  Finding that the defendants met NRS 41.660’s other requirements, the Nevada Supreme Court affirmed the district court’s motion to dismiss and the district court’s subsequent award of attorney fees and $10,000 damages. 

TEVA PARENTERAL MEDICINES, INC. v. EIGHTH JUDICIAL DISTRICT COURT, 137 Nev. Adv. Op. 6 (March 4, 2021)

In Teva Parenteral Medicines, Inc., the Nevada Supreme Court held that plaintiffs’ claims for strict products liability, breach of implied warranty, and deceptive trade practices were preempted by the federal Hatch-Waxman Act because plaintiffs’ claims were premised on failure to warn theories governed by federal regulation.  The Nevada Supreme Court held that plaintiffs’ negligence claim, to the extent it was based on failure to warn, was also preempted, but that plaintiff’s negligence claim may proceed to the extent it is premised on their argument that a clinic in Las Vegas had a duty not to sell a specific size vial of propofol. 

If you don’t understand what I just wrote, it’s okay.  Neither do I.

HOME WARRANTY ADMINISTRATOR OF NEVADA, INC. v. STATE OF NEVADA DEPARTMENT OF BUSINESS AND INDUSTRY, 137 Nev. Adv. Op. 5 (Mar. 4, 2021)

In Home Warranty Administration of Nevada, the Nevada Supreme Court held that a “provider” of  “home warranty services,” as that term is defined in NRS 690C.070 and used in NRS 690C.150, must be an entity that is an obligor under the home warranty service contracts which it issues, sells or offers for sale. 

FAUSTO v. SANCHEZ-FLORES, 137 Nev. Adv. Op. 11 (Mar. 11, 2021)

In Fausto, the Nevada Supreme Court confirmed that the two-year statute of limitations period for personal injury or wrongful death claims under NRS 11.190(4)(e) is subject to equitable tolling where the plaintiff demonstrates (1) reasonable diligence in pursuing his or her claims and that (2) extraordinary circumstances prevent them from timely commencing an action. 

NAUTILUS INS. CO. v. ACCESS MEDICAL, LLC, 137 Nev. Adv. Op. 10 (Mar. 11, 2021)

In this certified question from the Ninth Circuit Court of Appeals, the Nevada Supreme Court held that an insurer is entitled to reimbursement of costs already expended in defense of its insureds where a determination has been made that the insurer owed no duty to defend and the insurer expressly reserved its right to seek reimbursement in writing after defense has been tendered despite the fact that the insurance policy itself contained no reservation of rights.  The Nevada Supreme Court found that, generally, a party who performs under a contract without being obligated to do so is entitled to restitution, and it found no basis as to why this general common-law rule should not equally apply to insurance contracts. 

NEVADA STATE EDUC. ASS’N v. CLARK CNTY. EDUC. ASS’N, 137 Nev. Adv. Op. 8 (Mar. 4, 2021)

In Nev. State Educ. Ass’n, the Nevada Supreme Court held that a parent union’s bylaws may not govern matters between local unions and state unions that are the subject of separate contracts, if there is language in the parent union’s bylaws which grant its subsidiary unions authority to enter into those contracts.