The selection of “Super Lawyers” is based on a survey of thousands of fellow lawyers in the state of Michigan.  Michigan Super Lawyers identifies the top 5 percent of attorneys in the state, as chosen by their peers and through independent research.

Mark Demorest was named as a Super Lawyer for business law, and has been for every year since 2007.

Dave Nykanen has been selected as a Super Lawyer for real estate law again. He has been selected each year since 2008.

John Holmquist has been named a Super Lawyer for labor and employment law once again.  He has received this honor every year since 2006.

Melissa Demorest was named as a “Rising Star” in the area of business law for the second consecutive year.  This category is for lawyers who have been practicing less than ten years.  No more than 2.5% of the lawyers in a state may be named to the Rising Stars list.

In 2010, the Michigan Supreme Court ruled that even if a parent signed an activity waiver for their child, the parent could still bring a lawsuit against the activity provider if the child was injured while participating in the activity.  See Woodman v Kera, LLC, 486 Mich 228, 785 NW2d 1 (2010).  Prior to Woodman, if a parent had signed a pre-injury waiver, the case would typically be dismissed based on the waiver.

After Woodman, the Michigan Legislature began working on various bills to overrule this decision.  Last week, Public Act 61 of 2011 was signed into law.    The new law allows a parent or guardian to sign a pre-activity waiver on behalf of a minor, releasing a person or organization[1] from liability for injury sustained by the minor while participating in the activity.  Of course, if the activity sponsor or organizer acts negligently, that person or company may still be liable for their negligent act.

What does this mean for your business?

• If you provide sports or recreational activities to minors, you should use a waiver form specific to the risks inherent to the particular sport or activity.  Contact our firm or another attorney if you need assistance with this.
• Make sure that you have all parents/guardians sign a waiver on behalf of each child participating in the sport or activity before they begin participating.
• Ensure that all employees are properly trained and properly conducting the activity.  If an employee is acting negligently, the employee and/or your business can still be liable for any injuries that occur.

Please do not hesitate to contact us if you’d like more information about this!

To be eligible for a catering permit, the licensee must be a “specially designated distributor, specially designated merchant, or holder of a public on-premises license,” AND must also be a licensed “food service establishment or retail food establishment.”  For example, the following types of businesses might be eligible for a catering permit: a restaurant, hotel, or banquet facility that caters offsite events; or a grocery store that sells liquor and provides catering.

A catering permit holder may use the permit at multiple events and locations simultaneously, and there is no limit on the number of catering permits issued in a particular city or county.  A permit holder must complete an MLCC server training program before beginning to use the permit.  The catering permit application fee is $70 and the annual permit fee is $100.

This new law was originally part of the Sunday liquor sales law that went into effect late in 2010, but Governor Granholm vetoed the catering permit section from that law.  It was recently reintroduced and quickly became law.

For additional analysis of the new law, see the Michigan House and Senate analysis.

Stay tuned for further updates.  Also, see these articles for more information: http://bit.ly/dur1yu, and http://bit.ly/chOhlA.

Click on the following for links to the first Asian Carp article , the second Asian Carp article, the third Asian Carp article, and the fourth Asian Carp Article.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

In addition to the lawsuit, various members of Congress from the affected states have been working to find a solution.  Michigan and Illinois lawmakers agree that it is necessary to permanently separate the Mississippi River watershed from the Great Lakes watershed, but have not yet reached an agreement on the specific methodology, or even on short-term solutions to be implemented before the permanent solution is put in place.  Illinois lawmakers seem to be more concerned about protecting the shipping industry in Chicago than in protecting Lake Michigan from ecological destruction.

Even this action could be too late to fully protect Lake Michigan, as a 20-pound Asian carp was found in Lake Calumet, south of Chicago, in June.  Lake Calumet is 6 miles beyond an electronic barrier that was set up in Chicago waterways to prevent Asian carp from getting to Lake Michigan.

Besides the threat to Lake Michigan, there is now a concern that Asian carp could also enter Lake Erie, through rivers in Indiana and Ohio.  Asian carp are already present in the Wabash River in Indiana, which connects via marshlands and floodwaters with the Maumee River in Ohio.  The Maumee River connects to Lake Erie.   Earlier this month, Indiana placed mesh fences in marshes between the two rivers to attempt to keep Asian carp out of the Maumee River.

Stay tuned for further updates.  Also, see these articles in The Detroit News for more information: http://bit.ly/bPaiaA, http://bit.ly/bqt8dU, http://bit.ly/brspfu, http://bit.ly/amEzQb, and http://bit.ly/bVObfQ.

Click on the following for links to the first article on the dispute, the second article, and the third article.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

Key provisions of the CARD Act include:

• Interest rates on existing balances cannot be changed unless (1) your payment is 60 or more days late; or (2) you have an introductory rate that expires.
• If a payment is more then 60 days late, but your payments for the next 6 months are all on-time, the credit card company must reduce your interest rate back to the original rate.
• Interest rates on new purchases can be changed, but the credit card company must give you 45 days notice before raising your rate.  You can opt out of the rate change, but that means your account will be closed and you will have five years to pay off the existing balance at the existing interest rate.  There are some exceptions to this rule, however.  For example, if you have a variable rate card tied to the prime rate, this provision does not apply.
• Credit card companies can no longer use the “universal default” provision that some were using.  If you pay late or default on any account (credit card, utility, etc.), other card issuers can no longer raise your interest rate on your existing balance on those cards.
• Credit card companies can no longer approve a charge that exceeds your limit and then charge you an over-limit fee and penalty interest rate.  Beware of “opt-in” offers to avoid over-limit fees, as this is a scam.
• You cannot be charged for paying online, by mail, or over the phone, unless you speak to a live operator and then they must disclose the fee before you pay.
• Payment due dates must be the same every month, and if the due date falls on a holiday or weekend, the payment is due the next business day.
• Your bill must now disclose how long it will take to pay off the current balance if you only pay the minimum amount each month, as well as the total amount of principal and interest you would pay over that time period.
• Anyone under 21 cannot get a credit card without either (1) proof of income to pay the bills or (2) an adult co-signer.

One problem with the CARD Act, however, is that it was signed into law in May 2009, but did not become effective until this week.  This gave credit card companies significant time to find ways around the new laws, including cutting credit limits and raising interest rates before the restrictions on such practices went into effect.  Some other new negative practices include:

• Closing accounts or charging fees for inactivity or even for “low activity”
• The return of annual fees to many cards – even if you have never had an annual fee on a particular card, there is nothing to stop the card issuer from charging one now
• Converting fixed rate cards to variable rate cards, and setting these rates with a floor that they will never fall below
• Redefining terms of certain fees, such as what is considered an “international transaction”
• Increasing balance transfer fees and cash advance fees
• Adding fees for paper statements
• Changing the terms of rewards programs or eliminating such programs altogether
• Stricter review of who is issued credit
• Reducing credit limits without warning

Pay attention to all correspondence from your credit card company, and if they are acting in a way that should be covered by the CARD Act, call and complain.  If that doesn’t work, contact your US Senator or Representative.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

Last week, the Supreme Court refused to immediately close the waterways.  However, the Court did not explain the reasons for its ruling, nor did it indicate whether it would rule to close the waterways at some point.

Just hours after the Court issued its ruling, it was announced that Asian carp DNA had been detected in Calumet Harbor, part of Lake Michigan near Chicago.  It is unclear whether this finding will influence the Supreme Court, or cause it to reconsider its prior ruling.

Michigan has been joined in its fight by Ohio, Indiana, Wisconsin, Minnesota, Pennsylvania, and New York (all the Great Lakes border states except Illinois), as well as Ontario.  President Obama has invited the governors of these states to a summit to be held next month regarding these issues.

Various members of Congress are also looking at possible solutions for the Asian carp problem.  A bipartisan group is looking at measures to poison the Asian carp; to strengthen an electronic barrier in the Chicago waterways; and other options.  Additionally, U.S. Rep. Dave Camp (Midland), introduced a bill called the Carp Act, which would close the waterways, and strengthen protections against Asian carp within the waterways, without the Supreme Court’s involvement.

Not surprisingly, the shipping industry opposes the closure of the waterways leading from Chicago to Lake Michigan.  At this point, it appears to be up to the Supreme Court, Congress, and/or the President to decide whether protecting the Great Lakes from Asian carp is more important than allowing commercial shipping between the Great Lakes and the Mississippi River (through Chicago).

Stay tuned for further updates.  Also, see these articles in The Detroit News for more information: http://bit.ly/cfUu7V, http://bit.ly/83fqws, http://bit.ly/6WoS1, and http://bit.ly/aSDOEd.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

An independent contractor calculates this amount for the IRS each year, based on the “fixed and variable costs of operating an automobile”  in the previous year.  These costs include fuel prices, as well as maintenance.  The 2010 rate is $.05 lower than the 2009 rate of $.55 per mile.  The IRS attributes this reduction to “generally lower transportation costs” as compared to the previous year (2008).

The mileage reimbursement rate has risen dramatically in recent years, mainly due to the sharp increase in gas prices over the past few years.  For example, the rate in 2003 was $.36 per mile; in 2006 it was $.445 per mile; and in the second half of 2008, it was $.585 per mile.

See this article on the IRS web site for more information: http://www.irs.gov/newsroom/article/0,,id=216048,00.html

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

This week, Michigan Attorney General Mike Cox filed a petition with the United States Supreme Court, essentially asking the Court to close all waterways from Illinois leading to Lake Michigan, to prevent Asian carp from reaching the Great Lakes.  You may be wondering why the United States Supreme Court is involved.  The answer is that this is a dispute between two states – Michigan and Illinois – and the US Supreme Court has “original jurisdiction” over disputes between the states.  28 USC § 1251(a).  Original jurisdiction means that if such a dispute arises, the only court that is allowed to hear that dispute is the US Supreme Court.

Essentially, Michigan’s Attorney General is arguing that the threatened harm to Michigan and the Great Lakes is so severe that the Court should take the drastic measure of closing off all rivers and canals leading from Illinois to Lake Michigan, by closing locks and/or sluice gates.  The Attorney General acknowledges that this would likely harm commercial and pleasure boating traffic in the Chicago area, but maintains that this harm would be insignificant compared to the harm caused by Asian carp reaching Lake Michigan and destroying the Great Lakes fishing industry.

Michigan’s Attorney General has asked the Supreme Court to weigh the environmental and business concerns of protecting the Great Lakes against the business concerns of keeping open the waterways from Chicago to Lake Michigan.  Stay tuned for the Court’s ruling.

See this article in The Detroit News for more information: http://www.detnews.com/article/20091222/METRO01/912220363/1448/LIFESTYLE14/Groups-laud-Cox-in-carp-fight

Also see the Michigan Attorney General’s website for more information: http://www.michigan.gov/ag/0,1607,7-164-34391-228350–,00.html

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

Some oral contracts are enforceable, but several types of contracts are enforceable only if they are in writing.  This stems from a legal concept called the “Statute of Frauds,” which was developed in the 17th Century and is still followed today.  The purpose of the Statute of Frauds is to prevent fraud in certain types of contracts

Under Michigan law, the following types of contracts (among others) generally must be in writing to be enforceable:

• real estate agreements, including purchase agreements, deeds, mortgages, and leases (unless the lease is for less than one year)
• contracts that cannot be performed within one year (e.g. a two-year employment contract)
• promises to pay the debt of another (e.g. a personal guarantee)
• marital contracts (e.g. prenuptial agreements)
• real estate commission agreements
• promises made by financial institutions (such as a promise to lend)
• misrepresentations regarding credit
• sales of goods worth more than $1000
• sales of personal property

How can you protect yourself or your business?  First, it’s generally a good idea to make sure that all contracts are in writing and are signed by all parties to the contract.  If the agreement is in writing, and signed by all parties, the parties usually cannot dispute later that something was left out of the agreement.  Second, if you have an existing agreement that’s not in writing, you should contact an attorney to find out whether that agreement should be put into writing in order to make it enforceable.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.