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Hertz Schram PC Legal Blog

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.

Gary Remer Joins Hertz Schram, P.C.

Hertz Schram is pleased to announce that Gary Remer, one of Michigan's top franchise attorneys, joined the firm to lead our Franchise and Employee Benefit Plan practices. Gary will continue to advise business owners, including franchisors and franchisees, on business entity formation and maintenance, commercial contracts, finance, regulatory compliance and retirement plans.

Gary comes to Hertz Schram with many years of experience as both a lawyer and certified public accountant. His unique background provides clients with an unequalled perspective into how to structure deals and organize businesses. As a former agent with the U.S. Internal Revenue Service's Employee Plans Division, Gary gained hands-on experience into the regulatory environment surrounding retirement and other benefit plans.

13 Hertz Schram Attorneys Recognized as Leading Lawyers

Hertz Schram is pleased to announce that 13 of its attorneys were recognized by Leading Lawyers for being at the top of their fields of expertise and for outstanding client service:

  • Howard Hertz, Entertainment Law
  • Bradley Schram, Securities and Business Law
  • Victor M. Norris, Litigation
  • Robert P. Geller, Business and Securities Law
  • Steve J. Weiss, Litigation and Personal Injury Law
  • Walter J. Piszczatowski, Criminal Law
  • Kenneth F. Silver, Business Law and Probate Litigation
  • Gerald P. Cavellier, Family law
  • Eva T. Cantarella, Litigation
  • Patricia Stamler, Litigation
  • Lisa D. Stern, Family Law
  • Richard S. Victor, Family Law
  • Gary Remer, Franchise Law 

Eight Hertz Schram Attorneys Honored in DBusiness

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Hertz Schram is pleased to announce that 8 of our attorneys were selected to appear in DBusiness Top Lawyers for 2016. DBusiness, publication of Hour Media, is one of the leading business journals in Detroit. This year over 19,000 attorneys were polled across Wayne, Oakland, Macomb, Washtenaw and Livingston counties to determine who were considered the best among their peers.

Considering Not Filing the Property Transfer Affidavit? Don't Even Think About It!

Prior to 1995, real property in Michigan was taxed at its "assessed value"; that is, at 50% of its true cash value, which Michigan courts deem synonymous with fair market value. This meant that taxes on real property went up or down in tandem with increases or decreases in the property's true cash value.

However, in 1994, Michigan voters approved Proposal A, which amended Michigan's Constitution to require that, starting in 1995, Michigan real properties were to be (i) assigned a taxable value in addition to their assessed value, and (ii) taxed based on their taxable value--an amount that cannot exceed the property's assessed value and that can only increase by the lesser of 5% or the rate of inflation. This is known as the Proposal A Cap. Thus, in a rising real estate market, assessed values will increase in tandem with the market, but taxable values will increase only by the rate of inflation which may be less than the rate indicated by the market.

Michigan Court of Appeals Issues Decision Regarding Grandparent Visitation Statute

Ending 10 years of uncertainty and inconsistent rulings at the trial court level, the Michigan Court Appeals opened the door for grandchildren in the State to have a meaningful relationship with their grandparents. In a decision reached last week, the Court made clear that, indeed, grandparents have the right to file for visitation with their grandchildren. The Court addressed both the procedural and substantive issues that previously made it difficult for judges to rule on these petitions.

First, the Court of Appeals (once and for all) opined that the Michigan Grandparent Visitation statute, MCL 722.27(b), is indeed constitutional.

Second, the Court of Appeals decision in the Granneman (Granneman.pdf) case confirms that the Court need not hear from a mental health professional in order for the court to determine, from the evidence, that to deny grandparent visitation could create a substantial risk of harm to the child's mental, physical or emotional health.