17 Feb: Proposed Law Prohibits Contracts Punishing Customers’ On-Line Negative Reviews

Many businesses leave their customers little choice but to accept or “click through” lengthy contracts which include many clauses they are unfamiliar with, and don’t bother to read. One of the more pernicious clauses some companies insert into these documents prohibit customers from criticizing their products on line, or elsewhere. Some of these “gag clauses” actually impose significant monetary penalties ($500!) on the consumer who posts a prohibited bad review of the company’s products or…

12 Feb: Litigant Can’t Avoid a Dismissal Motion By Merely Claiming it is Premature

A recent case decided by the Michigan Court of Appeals named Naseef v. Wallside Inc., raises a couple legal issues of interest.  A separate post addresses the issue of when a contractor is actually an independent contractor. One issue to be resolved in this case was whether the plaintiff who filed the case could avoid the defendant’s summary disposition motion for dismissal based upon the claim that discovery was not complete.  The plaintiff could not…

05 Feb: Defining an Independent Contractor

The case discussed in a previous post, Naseef v Wallside, Inc., addresses the issue of how the law distinguishes an independent contractor from an employee. The context n Naseef is pretty typical: is the subcontractor on a construction job an independent contractor? The Court affirms that Michigan law follows the “control test” in making that determination. Control can come in a lot of forms, but it is usually based upon who pays the employees, who…

02 May: Voiding Contracts with Unlicensed Builders

There has been some confusion in the past as to whether a contract with a builder who is not licensed by the State of Michigan is “voidable” or “void.”  In a case decided last year, the Supreme Court of Michigan declared that contacts with licensed builders are voidable, not void from the outset. This means that a homeowner who learns that his builder was not properly licensed while performing the work can immediately stop the…

29 Apr: Employee Handbooks Are Subject to NLRB Review

A recent decision involving local employer Quicken Loans highlights an ongoing push by the National Labor Relations Board (NLRB) to review Employee Handbooks for overly broad rules which might violate labor laws.  In this case, an Administrative Judge struck down a variety of rules which it deemed overly broad and in violation of employees’ rights under the National Labor Relations Act. One of the more striking features of this ruling is that the NLRB reviewed…

26 Apr: Identifying the Prevailing Party in Contract Litigation

Many commercial contracts expressly provide that the prevailing party will be entitled to its litigation costs and attorneys’ fees in any court dispute concerning the contract.  These contracts rarely define what it means to be the “prevailing party.”  That is usually left to the parties to dispute and for the courts to decide. Michigan case law primarily defines the prevailing party by what it is not: the prevailing party need not prevail in full on…

26 Apr: Michigan’s New Fiduciary Access to Digital Assets Act

For some time, estate planners have been aware of the need to provide for access to a decedent’s digital assets.  Michigan recently enacted the Fiduciary Access to Digital Assets Act (the “Act”), which offers legal tools for passing digital assets to one’ estate, and guiding fiduciaries who must administer their decedent’s estate. Digital assets can take many forms.  Facebook and LinkedIn accounts are generally considered digital assets, although the more important assets for purposes of…

14 Apr: Undue Influence: The Formidable Burden of Proof

A recent Michigan Court of Appeals decision illustrates once again just how difficult it can be to prove a case of undue influence. In the case of In re Peace Estate, the daughters of the deceased (Jeannette) contested their mother’s will because they were cut out of her will.  They were opposed by Jeannette’s brother and sister-in-law.  The daughters were able to present evidence that their aging mother had become forgetful, had suffered from Alzheimer’s,…