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Hertz Schram PC Legal Blog

Michigan Custodylaw Must be Amended to Encompass Artificial Reproductive Technology

Michigan is considering an amendment to the Child Custody Act that will enable parents who have children as result of in vitro fertilization from anonymous sperm and egg donors to be legally considered the child's parents. Based upon current law, a parent, whose child was conceived in this manner, does not have standing to seek custody under the Child Custody Act. A "parent" has been defined by the Michigan legislature as the "natural or adoptive parent of a child." The courts have interpreted a "natural" parent to be a person who is biologically related to the child. This is problematic for those parents who have been blessed with a child as a result of Artificial Reproductive Technology (ART). The problem is specific to those situations where a child born to a couple is the result of a donor egg and donor sperm.

For example, John and Melissa attempted to have a child for several years with no success. After medical tests were conducted, it was discovered that John has a low sperm count and Melissa has a genetic, hereditary disease that could be passed on to their future child. Melissa wants to give birth to her child. To accomplish this, the couple purchased an anonymous donor egg and anonymous donor sperm and a zygote was implanted into Melissa's uterus using in vitro fertilization technology. Nine months later, Melissa gave birth to a healthy baby boy.

Michigan Court of Appeals Confirms That Proximate Cause Is A Question Of Fact In Medical Malpractice Cases

In Jennifer Stamler v Anuj Mittal, M.D. and M-Amin Badawi, M.D., Case No. 325261 (March 10, 2016), the Michigan Court of Appeals reversed the trial court's decision granting summary disposition in favor of the defendant physicians in a medical malpractice case. In reversing the trial court, the Court of Appeals held that proximate causation in a medical malpractice case is a question of fact and trial courts should not lightly grant motions for summary disposition on the issue.

Department of Labor Changes Financial Advisers' Standard of Care Rule

The Department of Labor dramatically changed the landscape for financial advisers and investors, announcing final rules that will change most financial advisers standard of care to clients from a "suitability" analysis to a "fiduciary duty". A fiduciary duty is a very high standard of care. This is already leading to a flurry of industry changes as financial advisers and firms work to readjust their relationships and comply with these new duties. Some are left wondering why the SEC didn't lead the charge in drafting new rules, and whether the SEC will yet make further rules.

Class Action Filed on Behalf of Flint's Poisoned Children

March 29, 2016 (Flint, Michigan) Hertz Schram PC has filed a class action lawsuit on behalf of Flint's children who were poisoned by drinking and bathing in its tap water.

This class action is unique in that it seeks monetary damages for all children in Flint, ages 17 and under, who consumed the lead contaminated water and suffered brain damage as a result.

Medical experts and the literature are clear that there is no safe level of lead exposure and any child who consumes lead suffers brain damage at the time of consumption. This damage is permanent and without cure.

"The officials involved in causing this tragedy have been so busy pointing fingers that they have neglected to address the needs of Flint's children," explains Elizabeth Thomson, Hertz Schram Litigation partner. "The damage caused by the Flint Water crisis will have a lifelong impact on these kids and their families. We have put all the officials from the top down who condemned Flint's children to lives that that will require considerable services and support on notice that they will be held accountable."

Supreme Court of the United States Hears Controversial Abortion Case

On March 2, 2016, the Supreme Court of the United States ("SCOTUS") heard oral argument in Whole Woman's Health v Hellerstedt, a critical abortion rights case challenging a 2013 Texas law requiring medical facilities where abortions are performed meet ambulatory surgery center ("ASC") standards and the doctors performing the abortions have admitting privileges at a local hospital. This is the most significant abortion case before SCOTUS since Planned Parenthood v Casey in 1992, in which the Court ruled the states were not allowed to place undue burdens on a woman's constitutional right to an abortion, including "unnecessary health regulations" that imposed a substantial obstacle to a woman seeking an abortion.

Gary Remer to Host Free Q&A Session on Franchise Law

Hertz Schram franchise attorney Gary Remer is hosting a free Q&A session to help current and prospective franchise owners get the information they need to make successful business decisions. To learn more and to register for the event, check out the Eventbrite page for the session.

Contract Attorney's Quest for Overtime Pay Fails

On December 30, 2015, a federal court in New York dismissed Plaintiff William Henig's claim against the law firm of Quinn Emanuel Urquhart & Sullivan LLP and the legal staffing firm Providus, for overtime wages brought under the Fair Labor Standards Act (FLSA). The court roundly rejected Plaintiff's claims that he was entitled to overtime wages for the routine review of documents, to determine if the documents fell within a privilege or were relevant, noting that an attorney's review of documents constitutes the practice of law. The judge was not persuaded by Plaintiff's argument that the review of documents required no legal analysis. In reaching her decision, Judge Abrams noted that new attorneys often perform repetitive tasks that are "modest in intellectual scope" and "banal." Nevertheless, the court held this still constitutes the practice of law.

Can Your Lawyer Inherit Your Assets?

Is it acceptable practice for a lawyer to prepare estate planning documents that leave a client's assets to him or her? A very interesting case pending before the Michigan Supreme Court should answer this question. The Michigan Code of Professional Conduct, that governs lawyers licensed by the State Bar, states very clearly that a lawyer shall not prepare an instrument giving the lawyer (or a close relative) a substantial gift, including by will, from a client MRPC 1.8(c). Yet, this is exactly what happened in the case of Papazian v Goldberg, where lawyer Mark Papazian prepared the will for his long-time friend and client, Robert D. Mardigian, that left Papazian an estate of about $20,000,000 to the exclusion of Mardigian's longtime girlfriend, nieces and nephews.

CONDUIT LOANS ARE BACK...PROCEED WITH CAUTION

Attention Michigan owners of commercial real estate; conduit lending has made a dramatic comeback from the crash of 2008. It took some time but conduit loans have been readily available for qualified projects, not just trophy properties, even in Michigan. Conduit mortgage loans provide better rates in exchange for pre-approved "standardized" documents and underwriting that allows for a minimum of negotiation with respect to loans in excess of $1,000,000. These loans also generally require individual guaranties for certain carve-out "bad" acts such as distributing income before taxes are paid or failing to file tax returns. Once closed the "standardized loan" is then pooled with other similar loans and sold on the secondary market to investors. 

Too Soon to Enforce a Non-Compete?

Employers routinely require employees to sign a non-compete agreement, in order to prevent them from taking customers, business opportunities, and confidential information to a competitor. "Continued at-will employment" was historically deemed adequate consideration for such agreements in Michigan. An employer could discharge an employee for any reason at any time and, subject to considerations of fairness or equity, still move to enforce that employee's non-compete agreement. No minimum period of employment or other consideration was necessary. This rule was helpful for employers, but sometimes onerous for employees. This long-standing rule may now be in flux.