Authored By: Kenneth Neuman and Stephen McKenney You have likely seen language to the following effect in a lending instrument: “Borrower agrees to pay the maximum legal interest rate if it is determined that the other contractual terms impose an illegal interest rate.” Such “usury savings clauses” are akin to a blue pencil rule with the aim of permitting a court finding an interest...
Authored By: Jennifer Grieco and Nicholas Swider That collateral estoppel can preclude subsequent litigation of an issue decided in a prior action is unremarkable. Less conventional is whether issue preclusion can apply within a single cause of action, rather than in a later dispute. This, in fact, was an issue of first impression in Michigan decided in the for-publication...
Authored By: Matthew Smith and Dave Mollicone On November 2, 2023, the Michigan Court of Appeals issued its for-publication opinion in Kircher v Boyne USA, Inc, et al. The case arose from two successive settlement agreements between the plaintiff shareholder of defendant Boyne USA, Inc. Pursuant to a 2014 settlement agreement, the plaintiff shareholder had a right to have her...
Authored By: Jennifer Grieco and Steve McKenney Litigators handling construction disputes are keenly aware of the respective ninety-day and one-year limitations for recording and seeking to foreclose on construction liens. Given the prevalence of arbitration provisions in construction contracts, litigators are often faced with the issue of how to pursue a claim to establish the validity of...
Authored By: Kenneth Neuman and Matthew Smith Does a contract provide for the sale of goods or for the provision of services? This is, of course, the threshold question attorneys are faced with in determining whether their client’s contract dispute is governed by common law or the strictures of Article 2 of Michigan’s Uniform Commercial Code. For decades, Michigan law has...
Authored By: David Mollicone and Nicholas North On December 21, 2022, the Michigan Supreme Court issued its Order concerning proposed amendments to MCR 7.202 and MCR 7.209. The proposed amendments would remove “an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7) or an order denying a motion for...
Authored By: Kenneth F. Neuman and Stephen McKenney Michigan law has long distinguished between actions that may be properly brought by a shareholder on a direct, rather than derivative, basis. The established dividing line has traditionally focused on whether an action is brought “to enforce corporate rights or to redress or prevent...
Authored By: Matthew Smith and Jennifer Grieco The advent of medical and recreational marihuana licensure in Michigan has proven to be a boon for litigation throughout the state. Many municipalities that have chosen to enact ordinances permitting medical and recreational licenses have been met with litigation arising from the selection of winners and losers in the licensing...
Authored By: David Mollicone and Jennifer Cupples Effective September 1, 2022, the Michigan Rules of Professional Conduct expanded with the addition of MRPC 1.19. The new rule, entitled “Lawyer-Client Representation Agreements: Arbitration Provisions,” requires that a client either be independently represented in entering into an agreement...
Authored By: Jennifer Cupples and Jennifer Grieco Block billing is a common time-keeping practice in which attorneys use a single billing entry for total daily time spent on multiple tasks. In various unpublished opinions, the Michigan Court of Appeals has previously rejected arguments that the use of block billing is per se vague or improper – so long as the entries within the blocks are...
