Commercial Practice
Capability Statement

Browning, Kaleczyc, Berry & Hoven, P.C. (BKBH) offers a complete range of business and commercial services to its clients who are interested in conducting business or are actively involved in business ventures in the state, the region, and throughout the country.

Our attorneys are available to new businesses for advice on a variety of issues, including choice of business entity, tax implications of starting a new business, compliance with Montana employment and tax laws, and registration and reporting with the appropriate state and federal regulatory agencies.

We provide legal assistance to established businesses by listening to their plans and needs and then suggesting options, which may include reformation and reorganization of the business structure, capital formation, compliance with federal and state securities law requirements, and other forms of debt or equity financing.

A large portion of BKBH’s overall legal practice is devoted to its business clients. We offer a complete range of business and commercial services to our clients who are interested in conducting business or are actively involved in business ventures in the state, the region, and throughout the country.  Our firm assists a broad range of corporate clients, representing both small, local businesses and Fortune 500 Companies. BKBH’s Corporate Practice Group has nine attorneys who have extensive experience in the following commercial law matters:

• Negotiating and drafting of a wide variety of contracts, leases, license and use agreements, financing documents, real property transaction documents, and shareholder, member, partnership and employment agreements.
• Restructuring complex corporate debt and equity financings and re-financings, and negotiating and drafting the various legal documents to effectuate those transactions.
• Assisting our clients with issues of state and federal antitrust and securities laws, securities and commodities fraud litigation, complex class action and derivative shareholder litigation, constitutional law challenges, protection of intellectual property litigation, and other types of commercial litigation.
• Performing business mergers and acquisitions, restructurings, transactions and litigation of various size, complexity and exposure for both small local businesses and large publicly held corporations.
• Advising and counseling clients with regard to state, local and federal tax applications and also assisting a wide range of tax-exempt entities and arrangements with formation and compliance matters.

BKBH’s Commercial Group provides legal assistance to both new and established businesses by assisting them with transactional needs including business structuring and reorganization, taxation, administrative compliance, intellectual property registration and litigation, and drafting the wide variety of related transactional documents to effectuate mergers, sales, leases and loans.  To provide our clients with the highest quality of service, our corporate attorneys operate as a unit while relying on individual strengths.  Because of the complexity of corporate matters that arise, our attorneys combine experience, advanced degrees, such as LL.M.s, and significant continuing legal education to remain current and prepared to handle such needs.

Tax Advice from BKBH - Almost every transaction or business activity is impacted by federal, state, or local taxes.  Every legislative session there are numerous proposed bills that impact the tax structure in Montana and potentially impact business and commercial interests in the state. BKBH attorneys knowledgeable in tax matters advise our clients on the tax consequences of proposed legislation and business transactions, and suggest amendments or arrangements that will mitigate adverse impacts on our clients. Our attorneys also have experience representing business clients before the Montana Department of Revenue, the Internal Revenue Service, and in state and federal courts, to include Tax Court.  A brief description of representative services BKBH provides its tax clients follows:

• Counsel for multiple association-related pooled health insurance arrangements.  Work in this area typically includes counsel on initial choice of entity and formation requirements.  It also includes pursuing tax-exempt status and negotiation with the I.R.S. on this issue if necessary.  Once the entity is established, representation continues addressing ongoing compliance with regard to I.R.S. and ERISA standards.
• BKBH attorneys from our Commercial Group have represented major industrial concern on Montana property tax disputes for multiple years. Focus included all areas of appraised value with specific emphasis on functional and economic obsolescence.  Such disputes required close contact with valuation experts and were litigated through the administrative hearing levels before reaching ultimate settlement on favorable terms resulting in significant tax savings.
• Representing multi-national financial interest on state income tax matters. Work includes focus on unitary business and business income determinations, as well as analysis of Montana state income tax regulations and apportionment formulae.
• Assisted corporate clients in various acquisitions of real property holdings for investment or commercial use.  In connection with such service, helped transform various business entities into tenancy in common arrangements to set the stage for IRC Section 1031 exchanges.

Commercial Litigation by BKBH - Our firm maintains a substantial commercial litigation group. BKBH’s litigators are experienced in all aspects of the litigation process and have successfully handled commercial, environmental and general civil litigation cases many of which are complex lawsuits involving multiple parties and tens of thousands of documents. BKBH attorneys have litigated commercial matters in federal and state trial and appellate courts, arbitration tribunals, and administrative agencies on a wide variety of legal issues, including:

• Breach of contract actions and matters arising under the Uniform Commercial Code, RICO, CERCLA, and state and federal antitrust and securities laws;
• Commercial bankruptcy matters, distributor terminations, corporate and partnership dissolutions;
• Securities and commodities fraud litigation;
• Unfair competition, trade secret and intellectual property actions;
• Class action and derivative shareholder litigation;
• Constitutional law challenges affecting various business interests;
• Defense of patents and patent infringement litigation
• Fraudulent transfer of assets actions;
• Oil and gas royalty payment litigation;
• Tax litigation.

Recently Decided Cases Litigated by BKBH’s Commercial Group:

Wadell & Reed, Inc (2005). Stan Kaleczyc represented Wadell & Reed in security class action litigation involving the alleged improper exchange of variable annuities.  This matter was settled on terms favorable to Wadell & Reed.

Finke v. State of Montana (2003). Stan Kaleczyc and Kim Beatty successfully challenged on constitutional grounds a state statute limiting local municipal powers.

Montana Chamber of Commerce et. al v. Argenbright (2000). Stan Kaleczyc and Kim Beatty were successful in having declared unconstitutional a prohibition on corporate contributions and expenditures to ballot initiatives and referenda.  Mr. Kaleczyc and Ms. Beatty were successful in the Montana federal trial court, in defending an appeal to the U.S. 9th Circuit Court of Appeals, and in defending a petition for writ of certiorari to the U.S. Supreme Court.

Marshall v. State ex re. Cooney (1999). Stan Kaleczyc and Kim Beatty successfully voided a constitutional provision limiting governmental power to impose taxes, fees and assessments.  The matter was accepted by the Montana Supreme Court on a petition for original jurisdiction.

Our firm is experienced in business acquisitions of various sizes.  We assist clients with both stock purchases and asset transactions, and we represent both small, local businesses and Fortune 500 Companies.

Our clients include regulated industries and business which is before state and federal administrative agencies.  We provide a variety of legal and lobbying services, including the filing and pursuit of licensing applications, representation in contested case hearings, and negotiation of the purchase and sale of licenses.  We have appeared in a variety of state and federal venues, including the Montana Department of Revenue, Montana Department of Health and Human Services, the Montana Public Service Commission, Montana Insurance Department, Montana Securities Department, U.S. Department of the Interior, Bureau of Land Management, Indian Affairs, Internal Revenue Service, and U.S. Environmental Protection Agency.

Businesses of any size must deal with a myriad of labor laws.  In addition to compliance with payroll and unemployment tax liabilities, including compliance with the Fair Labor Standards Act and state wage and hour laws, as well as workers' compensation insurance requirements, the modern business owner must understand issues such as the nexus between workers' compensation statutes and the Americans with Disabilities Act. OSHA, the Equal Employment Opportunity Act, Montana Human Rights legislation, and federal and state drug testing laws and policies all provide unique challenges and opportunities to businesses.  Our labor relations specialists can help with these issues, as well as issues involving the more traditional employment contracts and covenants not to compete.

Transactions
The negotiation, structuring, and formation of new business ventures, the buying and selling of existing business, business reorganizations, stock and asset transactions, capital formation and other forms of debt or equity financing, and the preparation of shareholder, member, partnership, and employment agreements are our day-in and day-out trade.  We negotiate and draft a wide variety of complex contracts and other instruments when a business needs to merge, sell, lease, purchase, borrow, or lend assets.

Businesses needing assistance restructuring in order to facilitate new product or service development and distribution rely on our firm's experience supporting start-up ventures for both new business entities and established entities embarking on new enterprises. Joint venture and partnership agreements can be effectively negotiated for such projects.  We are able to assist with other legal issues such projects may typically confront, including negotiating licensing arrangements, protecting intellectual property, managing distribution channels, and drafting service and supplier contracts.

As a full-service law firm, BKBH has specialized resources within our firm that may be marshaled when particular situations arise.  When a transaction involves the purchase, sale, or financing of real property, our attorneys with experience in property transactions, as well as appropriate technical staff, become closely involved with the project to ensure our client's interests are protected.  Environmental compliance in real property matters is now a threshold concern, and federal and state air, water, and solid waste requirements often necessitate the involvement of attorneys knowledgeable in these substantive areas of law; our firm offers extensive experience in environmental compliance, remediation, and litigation.

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Real Estate
BKBH’s real estate practice is wide ranging, including the traditional real estate client matters dealing with land purchases, sales and leasing transactions.  However, it is not for its traditional real estate practice that BKBH is most widely recognized. Instead, the bulk of our firm’s activities with regard to real estate concerns "public lands."  Public lands real estate issues constitute a huge part of the business of real estate in Montana.  Why? The simple answer is that the State of Montana, as is true with many western states in the Rocky Mountain region of the USA, is dramatically impacted by the presence of public lands. Nearly one-third of Montana’s landmass of 93 million acres is composed of a crazy quilt of public lands.  The State of Montana owns nearly 5 million acres of land, and the balance of public lands, which exceeds 25 million acres, is owned or managed by nearly a dozen federal agencies, including the U.S. Forest Service, the Bureau of Land Management, the National Park Service and a number of other federal agencies.

For nearly twenty five years, BKBH attorneys have routinely dealt with many of the federal and state laws governing those public lands, including the rules and doctrines governing disposition, allocation, and protection of this land and the natural resources contained within those lands.  We routinely deal with legal questions affected by such matters as the history of public land law, the constitutional authority to regulate federal lands, and the relevant legal authorities enacted by Congress and the States to do the same.  Our public land attorneys, who are among the most qualified specialists in this complex area of the law, have dealt with a wide range of legal controversies with regard to such critical resources as water, minerals, timber, wildlife, and recreation, and the preservation of each and all of these resources.  Most recently, our attorneys have been closely involved in unprecedented federal legislation endowing large public charitable trusts from the sales proceeds of public lands on two of Montana's largest federally constructed reservoirs.

Another significant part of BKBH’s practice over the years has been in the representation of Montana’s largest private landowner, the railroads and other investor owned utilities.  These companies own millions of acres of lands that are used every day for the transportation of commodities and energy.  BKBH attorneys are regularly called upon to assist these companies on a wide array of real estate issues, ranging from litigating condemnation actions to drafting, filing and litigating private easements.

1. BKBH's Public Lands Cases:

Fort Peck Lake Association v. U.S. Fish & Wildlife Service and the U.S. Army Corps of Engineers (2003) - Mark Etchart and Steve Browning represented a second cabin-owner association [Fort Peck Lake Association] that was also successful in its pursuit of federal legislation authorizing the sale of federally owned cabin sites at Fort Peck Lake in Northeastern Montana. Fort Peck Lake is one of the largest man-made lakes in the world. Among other things, the lake serves nearly 400 cabin owners who lease their cabins from the U.S. Army Corps of Engineers. The sales proceeds from the Fort Peck Lake cabin sites (which may total as much as $10 million) just as is the case with Canyon Ferry cabin sites, are required to be deposited into the Montana Fish & Wildlife Conservation Trust.  The Fort Peck Cabin site sales are not expected to begin until 2006. Also, unlike the Canyon Ferry sales funds, which are required to be part of a permanent endowment, the Fort Peck sales funds that are deposited into the Montana Fish & Wildlife Conservation Trust are not part of a permanent endowment and are available for immediate use to acquire lands or interests in lands within or adjacent to the Charles M. Russell National Wildlife Refuge in Northeastern Montana.

Canyon Ferry Recreation Association v. Bureau of Reclamation (2002) - For more than five years Steve Browning and Mark Etchart worked with representatives of the 265 cabin site lessees at Canyon Ferry Reservoir in Western Montana to convince Congress to transfer ownership of the cabin site lots to the lessees. Canyon Ferry Reservoir, a 26 mile long fresh water lake with more than 76 miles of shoreline, is one of more than one hundred federally funded manmade lakes in the Western United States. Most of these reservoirs were built by the federal government with the intention of serving multiple purposes, such as flood control, electrical power generation, recreation, etc.  As a part of the recreational component for the Canyon Ferry Reservoir, when its dam was built in the 1950’s, 265 lots (sized on average at about ½ acre per lot) were leased by the federal government to the public.  Over the ensuing years there were so many conflicts in these lease arrangements, that the cabin owners finally decided that the best solution would be for them to buy their cabin sites at fair market value. BKBH attorneys worked with the Canyon Ferry cabin owners and the Montana Congressional delegation and congressional committee staff to fashion and implement this comprehensive legislative solution, which culminated with the passage of unprecedented federal legislation that authorized the sale of the cabin sites to the cabin site lessees.  As a condition of the sale, 90% of the sales proceeds were deposited in a permanent public trust, call the Montana Fish & Wildlife Conservation Trust (the Trust).  The Trust is a perpetual trust, where the income from it is dedicated to the acquisition of private land for public use.  As of 2005, the Trust’s corpus was more than $15 million, and more than $1 million in Trust earnings has already been granted from the Trust to various public groups who will use these grants to acquire private land thereby allowing greater public access.

2. BKBH's Subdivision Practice

In addition to its "public lands" transactional successes, BKBH routinely assists landowners with obtaining subdivision approval after initial applications have been denied. BKBH possesses the proven ability to assist a client, be they a seller or buyer, in the sale or acquisition of raw, undeveloped land, and then shepherd them through the state and local regulatory maze to achieve their development goal.  This ability is the core service of any law firm’s land-use transactional practice.

Leslieton Townsite (2004). Andy Adamek represented a developer who owned 22 acres.  BKBH petitioned the state court, seeking abandonment of an unmarketable old townsite plan and then convinced the court to abandon the townsite and create six lots.  The client was left with his dream retirement lot overlooking Hauser Lake, plus five additional marketable lots.

Awesome Views Subdivision (2003).  A landowner failed to subdivide a 14 acre parcel, when the county commission rejected the initial application. Andy Adamek was retained to assess the merit of a state court action appealing the denial, and he convinced the client to consider placing a perpetual agricultural easement upon the property.  This repackaged subdivision application is now used by landowners and governing officials as a model for future residential development of smaller parcels in the area.

Black Eagle Subdivision (2001). A developer failed to subdivide a 12 acre parcel, as his application was denied by the county commission.  Andy Adamek was retained, and he crafted a revised subdivision proposal that was ultimately approved as a model for future residential development in the fragile urban/wild-lands interface zone surrounding Helena.  The end result was a unanimous approval by a governing body and a pleased client. The concessions offered for approval actually increased the resale value of the divided parcels.

BKBH provides legal services for most aspects of real estate transactions, including contract negotiations, zoning and permitting issues, financing, title insurance issues, and all other matters related to closing the transaction. Our attorneys have extensive experience closing complex commercial and residential transactions.  The firm's commercial practice group assists a variety of different types of clients including developers of office buildings, shopping centers, industrial facilities, apartment complexes, hotels and motels, and planned unit developments.

BKBH's Real Estate Litigation Practice

A significant part of BKBH's Real Estate Practice involves litigation.  Listed below are representative cases handled by BKBH's Real Estate Practice Group:

Sandon v. The Burlington Northern and Santa Fe Railway Company (2003).  Mark Etchart represented The Burlington Northern and Santa Fe Railway Company ("BNSF") in this easement case.  The Plaintiff sought to maintain access over property of BNSF claiming an easement by prescription and an easement by implication.  In addition, the Plaintiff sought damages for destruction of the easement and punitive damages.  The case was won on summary judgment and the subsequent appeal to the Montana Supreme Court was voluntarily dismissed with prejudice.

Scariano Construction v. The Burlington Northern and Santa Fe Railway Company (2002).  Plaintiff initiated this action against BNSF for a construction lien foreclosure and money damages pursuant to a theory of unjust enrichment.  Upon completion of discovery, BNSF filed a motion for summary judgment.  Shortly thereafter, the Plaintiff stipulated to the dismissal of BNSF with prejudice and without recovery. Mark Etchart represented BNSF.

Wisher’s Salvage v. The Burlington Northern and Santa Fe Railway Company (2000). Plaintiffs initiated this action against BNSF claiming property damage, loss of use, mitigation costs and sought punitive damages. The Plaintiffs alleged that their residences or businesses were damaged by the flooding of Ashley Creek near Kalispell, Montana due to insufficient size or number of culverts beneath the adjacent BNSF rail line to adequately drain the creek during peak flows.  Motions for summary judgment were filed, but the case was favorably resolved at a settlement conference well in advance of trial. Mark Etchart represented BNSF.

Brown v. Adams (1997). Mark Etchart represented Adams in this action for injunctive relief.  Plaintiff sought a preliminary injunction and permanent injunction enjoining and restraining Adams from proceeding with the construction of their dream vacation home on their property adjacent to Flathead Lake in northwestern Montana on legal theories centered on the sanitation and subdivision laws.  Plaintiff also sought an order requiring the removal of all improvements made on the Adams property.  BKBH defended Adams and successfully secured the Court’s denial of the preliminary injunction application after an extensive show cause hearing.  The case was ultimately dismissed without success by Plaintiff.

Judith Basin County v. Burlington Northern Railroad Company (1996). Mark Etchart defended the Burlington Northern Railroad Company ("BNRR") in an action to recover fines in excess of $150,000 for the alleged failure to properly maintain right-of-way fences.  The case settled without any recovery by Judith Basin County.

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Litigation
Not all business activities can be conducted free from controversy.  This results in litigation before the courts or administrative agencies.  In those cases, we are available to provide a full range of litigation services, from planning initial strategies for the prosecution or defense of these cases, engaging in alternative dispute resolution, developing and executing pretrial and trial strategies, tactics and handling all levels of appeal.

Our attorneys have litigated commercial matters in federal and state trial and appellate courts, arbitration tribunals, and administrative agencies.  We are available to represent our business clients in breach of contract actions and matters arising under the Uniform Commercial Code, RICO, CERCLA, and state and federal antitrust and securities laws, commercial bankruptcy matters, distributor terminations, corporate and partnership dissolutions, securities and commodities fraud litigation, unfair competition, trade secret and intellectual property actions, class action and derivative shareholder litigation, and other types of commercial litigation.

We are experienced in preparing comprehensive litigation management plans and accurately budgeting for the various phases of litigation.  We work in a cooperative, trust relationship with our clients to ensure mutual participation in the strategic defense of each case.  Alternative billing arrangements are available to best meet our clients' needs.

For additional information on the litigation practice at BKBH,
see Litigation Group Capability Statement.

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Tax
Almost every business transaction is impacted by federal, state, or local taxes.  BKBH attorneys knowledgeable in tax matters advise our clients on the tax consequences of proposed transactions and suggest arrangements that will mitigate their impact.  Our attorneys also have experience representing our corporate and other business clients before the Montana Department of Revenue, the Internal Revenue Service, and federal and state tax courts.  We assist business taxpayers in audits, installment agreements, offers in compromise, tax liens, and tax levies.  We also offer business planning services, including the formation of trusts, insurance trusts, family partnerships, and charitable giving.

Coal Severance Tax
The State of Montana imposes the highest tax in the nation of coal that is mined [i.e. severed] in the state.  Producers of more than 50,000 tons of coal per year pay a quarterly severance tax on all production in excess of 20,000 tons.  Producers of less than 50,000 tons per year are exempt from the tax. Montana's coal severance tax receipts are deposited into a constitutionally protected trust fund, the corpus of which exceeds $600 million and funds numerous programs on its interest earnings alone.  The fund is the topic of biennial controversy as legislators propose new ideas to increase or tap it. BKBH attorneys have played significant policy roles both inside and outside of state government in dealing with coal severance tax issues.

Estate & Gift Tax
Tax planning is essential for anyone who is thinking about retirement and inheritance matters.  Our tax attorneys at BKBH are experienced in providing comprehensive estate tax planning. BKBH's trust and estates lawyers handle tax and probate matters for individuals and fiduciaries, including estate tax and retirement planning.  We work with our clients to prepare the appropriate documents so that they can accomplish their estate planning and tax goals.  We also assist trustees, personal representatives, and income beneficiaries in carrying out and/or defending them in discharging their administrative responsibilities for estates and trusts.  BKBH works cooperatively with our clients to help them form and implement workable estate and succession plans.

Income Tax
Without proper tax planning, both Montana and the federal government can levy substantial income taxes on individuals and businesses.  Our commercial attorneys are experienced in counseling clients on the most effective means of dealing with the myriad federal and state personal and business related income tax laws.  When counseling isn't enough to solve a particular client's problem, our attorneys are experienced in litigating such tax problems on behalf of our clients.  BKBH's tax attorneys are knowledgeable about federal and state tax laws and apply that knowledge to help clients plan their activities so that they can minimize their tax liability.  We also represent our clients in disputes with tax authorities at all levels of government.

Property Tax
BKBH has represented business and individual property taxpayers in Montana for more than twenty years.  We have appeared successfully on behalf of numerous property taxpayers before a wide array of tax appeals boards at the local and state level and before the Montana State Legislature.

Tax Exempt Organizations
Non-profit organizations face a special set of federal and state rules affecting them in myriad ways.  Tax-exempt organizations are required to comply with these requirements or risk losing their special status. BKBH lawyers have represented many of these groups in planning and carrying out their non-profit goals and objectives.

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Regulatory/Administrative Compliance
Situations may arise in which existing, amended, or new regulations adversely impact businesses' various operations. BKBH provides a broad range of administrative law services, including drafting of rules and comments, testifying at hearings and working one-on-one with state and federal regulators to resolve problems. In addition, it may be necessary to participate in contested administrative matters before state or federal agencies.  BKBH has extensive experience representing clients in all kinds of administrative proceedings.  We regularly participate in contested case proceedings and are experienced in implementing and coordinating administrative litigation strategies.

Energy Deregulation and Re-regulation
BKBH represents domestic and out-of-state businesses on a wide variety of energy-related matters.  For these clients, we provide a variety of legal services, including transactional, regulatory, litigation services and lobbying before local state and federal bodies.  BKBH's energy clients include producers, processors, transporters, distributors, marketers and users of all forms of energy, including wind, natural gas, electricity, oil and coal.  Our commercial and public policy lawyers work closely with those energy clients in a continuing effort to assist them in adapting to changing regulatory and market conditions.  Such assistance includes drafting and lolbbying deregulation legislation, development and financing power projects, negotiation and renegotiation of power purchase and sale agreements and construction contracts and operating agreements, structuring and negotiation of the sale and acquisition of energy reserves, and creation of strategic energy alliances.

Telecommunications Deregulation and Re-regulation
For more than twenty years, BKBH attorneys have represented members of the telecommunications industry on all types of issues arising under state laws and regulations.  Our attorneys has appeared before Congress, the Montana State Legislature and the Montana Public Service Commission as general and special counsel to numerous industry participants, including incumbent and competitive local exchange carriers; wireless telecommunications service providers; video service providers; internet service providers; and other related telecommunications companies.

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Transportation Deregulation and Re-regulation
For the past twenty years, BKBH has represented transportation providers on a wide range of transportation issues.   We have represented national and regional railroads, inter-modal operators, trucking companies, and transportation industry manufacturers and suppliers, among others.  Our attorneys understand that issues affecting the transportation industry can often involve more than one branch of government. To deal with these multiple levels of regulation, BKBH attorneys are experienced at working with virtually every branch of government to provide their clients with effective and creative solutions to problems whether they are legislative, regulatory, administrative, or judicial. BKBH attorneys frequently represent transportation clients in regulatory proceedings before the Montana Public Service Commission.  For more than 20 years, BKBH has provided the U.S. rail industry with legal, administrative and legislative representation in a variety of areas. BKBH attorneys have extensive experience working closely with the U.S. Department of Transportation and the Montana Department of Transportation.

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Government Relations
BKBH is prepared to assist its business clients in every facet of their operations.  Not all solutions to business problems will be found in the board room, the courts, or before regulatory tribunals.  Today, businesses may find that they require assistance from Congress or the Legislature, or need to be vigilant of legislative proposals which may adversely affect their business interests. In such circumstances, we provide a full range of legislative services.

Our work on legislative matters has been both defensive and offensive; that is, we work both to defeat legislation opposed by our clients and enact legislation that is favored by our clients. Some of the firm's lawyers are registered as lobbyists both in Washington, D.C., and in Helena, Montana.  In addition to traditional lobbying activities, our firm provides clients with services in a broad array of public affairs projects, including conceptualizing and strategizing on ballot initiatives, press relations, and public relations.

We perform our public-affairs assignments in a low-key, professional, and personal manner. We present our clients' interests while adhering to ethical standards which will benefit the clients' and the firm's long-term interests.

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Insurance Law
BKBH practices in a number of insurance-related areas. We represent scores of insurance clients, and we advise them on state and federal law matters, concerning such things as coverage issues under commercial liability, automobile, property and casualty, and other insurance policies.  We represent insurers in declaratory actions and actions to intervene in pending litigation, bringing policy rescission actions, and defending bad faith claims. We have also served as state appointed special liquidator for insolvent insurance companies.

For nearly twenty years, our firm has actively defended and advised insurers on a broad range of insurance coverage matters.  We pride ourselves as being in the forefront of Montana's trial and appellate insurance practice.  Our insurance practice includes coverage opinions for first party property and homeowners insurance, automobile insurance, life and accident insurance, comprehensive general liability insurance, commercial and business interruption insurance, professional liability insurance, and employment insurance.  All of BKBH's lawyers who practice in the insurance litigation practice areas of our firm are active litigators in the state and federal courts.

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Securities Law
BKBH's commercial group has experience in handling a variety of securities and bond offerings.  We have worked with clients on compliance issues relative to state and federal securities regulators.  Our attorneys have represented domestic securities issuers, sellers and investors; start-up or emerging-growth companies; entrepreneurs; venture capitalists; and other institutional investors, including shareholders, directors, and officers of private and public companies.

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Alcoholic Beverages and Gaming Laws - For more than twenty years, BKBH has represented clients on matters relating to manufacturing, distributing, and licensing the sale of alcoholic beverages.  Similarly, we represent businesses engaged in the gaming industry. Because the alcohol beverage industry and gaming industry are both so heavily regulated, BKBH uses a broad range of its legal staff to deal with the needs of its clients in these industries.  At various times, we have represented all levels of the U.S. three-tiered alcoholic beverage system.  In addition to knowing Montana’s alcohol and gaming laws and U.S. beverage laws and regulations, our attorneys work regularly with the administrators and government personnel who enforce those laws.  From our two separate office locations in Montana, we seek to counsel BKBH’s clients on legal issues as diverse as those relating to the marketing and commerce of the gaming industry and the sale of alcoholic beverages, including the taxation, intellectual property, regulatory compliance and dispute resolution relating to those products.  Our attorneys pride themselves in working closely with our clients to identify and resolve their legal and regulatory issues.

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Construction Law
BKBH attorneys have experience in representing owners in disputes with architects, engineers, and contractors. BKBH involvement includes negotiation of construction contracts, the use of alternative dispute mechanisms of mediation and arbitration to resolve disputes, and traditional litigation before the courts and, in cases involving federal contracts, before administrative bodies.

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Association Foundation and Charitable Activities
Businesses, Trade Associations and their members are called upon to play larger roles in supporting charitable activities. State and federal tax laws can both constrain and facilitate these charitable activities.  BKBH has provided legal services to a number of private and public charities, including those connected with Montana-based Trade Associations.

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Federal & State Contracts
BKBH successfully represents clients in government contract disputes and procurement activities.  Our governmental contract practice consists of litigation in state and federal courts, including the court of claims, as well as a wide variety of state and federal administrative proceedings. Additionally, BKBH represents clients with interests in procurement before Congress and the Montana State Legislature.

In addition, BKBH advises clients on competitive bidding and procurement with the State of Montana.  This representation has included representing the client before the Legislature when bidding opportunities are created or enhanced, and continuing that representation during the governmental entity's drafting and creation of the request for proposals or request for bids. Through this representation BKBH is in a position to provide guidance during the formulation of the client's response to the proposal or bid requests.

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Municipal Finance
BKBH provides legal representation to issuers or underwriters in connection with the issuance of municipal bonds and the refunding of existing issues. BKBH is available to advise cities and towns in connection with the structuring of innovative financing mechanisms and to provide legal counsel in drafting and interpreting contracts and negotiating with federal, state and private parties in efforts to facilitate local economic development.  In partnership with the Seattle firm of Preston, Gates and Ellis, BKBH also serves as bond counsel or special counsel on various transactions.  Utilizing the specialized expertise of the Preston firm, BKBH is able to bring a level of creativity and sophistication to a wide variety of complex or novel situations, including such issues as the implementation of a system of development fees and uses for industrial development and revenue bonds.

Banking and Financial Institutions
The firm's experience in this area grew out of its representation before the Montana legislature on bank structure reform issues -- primarily, bank branching, merger, and consolidation.  The firm has successfully acquired new bank charters and transferred existing charters.  The firm has provided representation to banks at the federal level on certain issues, including foreign trade and tax matters.  Additionally, the firm has acted as local counsel to out-of-state national banks involved in major financings for acquisition of industrial businesses and large agricultural properties in Montana.

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Sports Law
Perhaps the most important relationship in the area of professional sports is that between the individual player and the team owner.  This contractual relationship is governed by basic contract principles.  Most sports leagues now have standard player's contracts, which serve as a model employment contracts between players and owners.  These model contracts can be modified to accommodate the special needs and talents of individual players. With the increase in salaries in professional sports, nearly all players are represented by agents.  Typically, this relationship is governed by standard representation contracts that define the duties and compensation of the agent.  In an attempt to regulate agent activities, many state legislatures now require agents to register with some type of administrative agency.  Our staff are registered agents for several professional sports leagues. To learn more about BKBH's sports law practice, please check out the website of Hometown Sports Management.

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Employment Law

BKBH attorneys in the BKBH Employment Law Defense group have been called on to assist employers in resolving a wide variety of labor and employment issues, including compliance with federal and state equal employment laws, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the creation of policies and procedures consistent with the Montana Wrongful Discharge from Employment Act, reductions in force, independent contractor issues and wage and labor laws.

In addition to its consulting practice, BKBH has successfully represented Montana employers and insurers on a variety of labor and employment law issues before the Montana Supreme Court, in the district courts of Montana, before the Department of Labor and the Workers’ Compensation Court, and in federal court.  BKBH has successfully defended hundreds of employment cases, including unlawful discrimination, wrongful discharge, claims for unemployment benefits, wage and hour claims, and workers’ compensation and occupational disease claims.  Additionally, BKBH has litigated personal injury claims brought against employers by past or current employees seeking to avoid the exclusive remedy provisions of the Montana Workers’ Compensation Act.

Recently Decided BKBH Employment Defense Cases:

The defense of Montana employers and their insurers constitutes a significant portion of BKBH’s practice. We believe we have obtained the trust and confidence of the employers and insurers we represent.  For more than twenty years, we have successfully represented employers, insurers, self-insured entities and workers’ compensation insurers in the district court and in proceedings before the Montana Workers’ Compensation Court, the Montana Department of Labor, and the Montana Supreme Court.  Our firm’s employment defense section has extensive experience defending cases involving alleged wrongful discharge, constructive discharge, sexual harassment, employment discrimination, and human rights violations.  Cases which BKBH has successfully defended include unlawful discrimination, wrongful discharge, claims for unemployment benefits, wage and hour claims, workers’ compensation and occupational disease claims. Recent case examples include:

Erickson v. Ash Grove (2005). Oliver Goe represented Ash Grove Cement Company in a case filed by a prior employee. Plaintiff argued that the intentional and malicious acts of Ash Grove led to an accident in which he suffered third degree burns and which left him with profound physical and emotional injuries.  The case settled favorably for Ash Grove during a jury trial held before Judge Loren Tucker in Jefferson County.

Montana State Fund v. Murray and Indemnity Insurance Company of North America (2005). Leo Ward represented Indemnity Insurance Company in a case filed with the Montana State Fund in which the State Fund argued that Indemnity Insurance ought to be responsible for the payment of occupational disease benefits to Mr. Murray.  The Workers’ Compensation Court, affirmed by the Montana Supreme Court, held that the State Fund was responsible for the payment of benefits as it was the insurer at risk at the time Mr. Murray was last injuriously exposed.

Strom v. Montana Municipality Insurance Authority (2005). Oliver Goe represented the City of Great Falls and its insurer, the Montana Municipality Insurance Authority, in a case filed with the Montana Workers’ Compensation Court.  The plaintiff claimed that his injuries were suffered at work in 1999; that he was unable to work; and that his injuries required back surgery in 2004.  Following trial, the Court rejected Plaintiff’s claims and entered judgment in favor of the Defendants.

Flesch v. Jensar, Inc. (2005). Leo Ward represented a local McDonald’s franchise in a slip and fall negligence case resulting in summary dismissal before the district court.  The dismissal was recently affirmed by the Montana Supreme Court on appeal.

Berger v. McDonalds Restaurants/Pasha Enterprises (2004). The charging party alleged that she was a victim of age discrimination by not choosing to keep her in a management position when Pasha Enterprises assumed ownership of the restaurant. Oliver Goe represented Pasha Enterprises during the investigation by the Montana Human Rights Bureau.  The Bureau determined that there was no reasonable cause to believe that discrimination occurred.

Heath v. Montana Municipal Insurance Authority (1998). An employee slipped and fell on the sidewalk outside of work and filed a claim for workers’ compensation benefits.  The claim was denied by the insurer on the grounds that the injury did not occur in the course and scope of the employee’s employment.  A petition was filed by the employee with the Workers’ Compensation Court to enter an order requiring the insurer to accept liability for her injuries, cover her medical expenses and to determine payment for any disability arising from her injuries. Oliver Goe defended the insurer’s denial and following discovery.  Employee’s claims were dismissed on summary judgment.  The Montana Supreme Court affirmed summary judgment, reinforcing prior precedent that travel to and from work is not covered by Workers’ Compensation.

Labor Law
BKBH's employment law attorneys and health law attorneys are experienced in advising and representing management on various National Labor Relations Act (NLRA) issues.  Our attorneys have dealt with collective bargaining agreements and related labor and employment disputes before arbitrators and courts across the country.  We have worked with selected clients in helping to negotiate collective bargaining agreements and to try labor and employment disputes before arbitrators.  BKBH attorneys are experienced in representing many types of employers of all sizes in matters relating to occupational safety and health law. And we have represented other employers on Occupational Safety and Health Act issues.  BKBH attorneys have assisted companies on employment law issues as well as international companies with respect to their U.S. operations.  The firm's Employment Practice Group encompasses all aspects of state and federal employment law, including employment discrimination, wrongful discharge, unemployment compensation, and wage and hour matters.  Members of this group represent clients in state and federal court and before both state and federal administrative agencies.

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Labor Policy Issues
BKBH has been called on to assist employers in resolving a wide variety of labor and employment policy issues including compliance with the Americans With Disabilities Act, and the creation of extensive policies and procedures consistent with the Montana Wrongful Discharge from Employment Act, reductions in force, independent contractor issues and civil rights laws.

Our attorneys specializing in labor and employment law can assist an employer in drafting lawful policies and procedures that promote business environments while minimizing employer-employee conflict. Policies and procedures, as well as employee handbooks, have been drafted or reviewed for small and large businesses.

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Drug and Alcohol Testing
BKBH has also developed expertise regarding drug and alcohol testing policies.  BKBH was instrumental in forming Montanans for a Drug Free Society, which has worked with employers throughout Montana to draft legislation and policy to assist employers in maintaining drug- and alcohol-free work environments.  During the 1997 session of the Montana State Legislature, BKBH attorneys were involved in drafting the Workforce Drug and Alcohol Testing Act. Our attorneys have also drafted comprehensive drug and alcohol testing policies for several employers throughout the state.

Litigation
BKBH has consulted with and successfully represented Montana employers and insurers on a variety of labor and employment law issues before the Montana Supreme Court, in the district courts of Montana, before the Department of Labor and the Workers' Compensation Court, and in federal court. Cases which BKBH has successfully defended include unlawful discrimination, wrongful discharge, claims for unemployment benefits, wage and hour claims, and workers' compensation and occupational disease claims.

BKBH's central location in Helena provides employers (and their insurers) located in other Montana communities with convenient access to Helena-based forums, including the Montana Supreme Court, the Department of Labor and the Montana Workers Compensation Court.

To achieve successful litigation results in its employment law cases, BKBH employs a team approach to every case which encourages a cooperative effort between the employer, insurer, and counsel.  The firm believes the best possible results are achieved when everyone combines their skill and resources to effectively communicate and work together throughout the course of litigation.  Using these strategies in conjunction with the innovative technology available to us, BKBH has achieved a high success ratio at the trial and appellate levels.

For additional information on the litigation practice at BKBH,
see Litigation Capability Statement.
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Intellectual Property
BKBH offers its clients a wide variety of professional services in the area of intellectual property law.  This practice includes trademark/servicemark registration, copyright registration, trade secrets, unfair trade practices, computer software rights and licensing of rights and franchising, in addition to patent consultation and related litigation services.  In recent years, as intellectual property rights have become more diverse and contested, BKBH has developed this expertise with the commitment to provide quality, informed legal advice.

BKBH drafts, reviews and negotiates all types of agreements and management contracts, and has expertise in contract disputes relating to intellectual property.  We work with our clients to help them determine whether their rights to intellectual property are properly protected during the drafting process and represent clients in breach of contract matters involving intellectual property.  We help register copyrights, conduct copyright and trademark searches, and file trademark applications.  We also review and analyze the intellectual property claims of our clients, with specific attention to copyrights, trademarks and rights of publicity and privacy, to proactively protect those claims.

BKBH advises small businesses, not for profit, and other corporations on trademark/servicemark issues including foreign registration issues.  BKBH represents clients on both the state and federal level, using creative and intelligent problem-solving strategies to meet their trademark/servicemark needs.

Trademark Creation
BKBH works closely with clients in developing the mark (i.e. trademark or servicmark) to be registered.  This includes advice on registration design issues such as style and color and research on similar marks via electronic databases and mark research services.  At times, it is also advisable to investigate the use of similar marks. Careful planning is necessary at the development stage, in order to avoid challenges to registration based on distinctiveness, descriptiveness, and likelihood of confusion. BKBH is experienced in advising clients in these areas preliminary to the filing of the application, with the objective of streamlining the registration process so as to most efficiently achieve the client's goals.

Trademark Registration
BKBH is experienced in all facets of mark registration, including filing of the application, publication of the mark in the Official Gazette for opposition, and response to nonfinal and final Office Actions on various issues. Issues arising in the application process are proper identification of the applicant, manner and dates of use, interstate and intrastate use, use by a predecessor, choice of class, description of the goods/services, disclaimer, choice of specimen, identification of the signatory, and filing of the statement of use.  Besides the application, other filings may be necessary, including request for reinstatement, petition for revival, notice of abandonment, and request for amendment.  BKBH attorneys are highly skilled in these areas and follow standard procedures for the filing of each application.  BKBH also develops systems for tracking the registration of each application.

Trademark Litigation
As noted previously, BKBH is qualified to provide a full range of litigation services, including drafting of pleadings, discovery, trial preparation, trial management, and appellate practice.  BKBH is familiar with proceedings before the Trademark Trial and Appeal Board and has experience in opposition and cancellation proceedings. BKBH does extensive research on the issues of common law use, likelihood of confusion, distinctiveness, descriptiveness, and ornamentation.  Also, BKBH uses various strategies to achieve litigation objectives in proceedings before the Trademark Trial and Appeal Board, including settlement negotiations.

Trademark Maintenance and Enforcement
Our Attorneys are experienced in maintaining and enforcing the registered mark. These post-registration mark services include filing of the Section 8 affidavit, renewal of the registration, monitoring use and policing for infringing use. The firm has researched the various alternatives for policing of infringing use, for both registered and unregistered marks.  BKBH also represents clients in transfer of ownership transactions, such as assignments.

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Immigration Law
Immigration issues are on the rise due to the vigilant enforcement practices of the Immigration and Naturalization Service and shortages of qualified United States workers.  BKBH has successfully worked with local and state agencies, labor unions, and the Immigration and Naturalization Service in solving labor-related immigration problems.  We have also worked on immigration issues involving visas, advance parole, employment authorization, adjustment and maintenance of status, extension of stay, permanent residence and naturalization.  Our attorneys are experienced in working with foreign Consulates and Congressional representatives in serving its clients' interests.

Capability Statement by  BKBH's Immigration Practice Group

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Business and Estate Planning
Wills and Trusts
Planning for the future transfer of personal and business assets is an important accomplishment for an individual or family.  BKBH has earned the confidence of our clients by bringing skill and insight to the personal process of estate planning. Attorneys at BKBH advise clients on a variety of estate planning matters, including the drafting of wills, trusts and related documents.  Members of the firm represent clients with post mortem estate planning and in litigation involving estates. In addition, BKBH assists clients with estates requiring probate. 

Long-Range Business Planning
BKBH attorneys understand the need to listen to the plans and goals of our business clients, analyze our client's needs, and then suggest various options for long range business planning.  We know that adequate and well thought out, long range planning is the key to a successful business operation.

Our attorneys can assist you in restructuring your corporate business structure to achieve maximum tax advantages, to encourage new growth, increase public interest and investment, or better position your company for a merger and acquisition situation.  Successful long range business planning must also include analysis of your present workforce and the need for implementation of employment incentives such as 401(k) and profit sharing plans, or stock distributions to key employees, in order to ensure your business retains its economic advantage by keeping a strong and loyal employment staff.  Effective long range planning will also involve input from financial planners and marketers.  BKBH attorneys have experience working with numerous business advisors who collectively work towards the continued success of your business.

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