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Whitmer Law, PLLC, 41000 Woodward Avenue, Suite 350 (east), Bloomfield Hills, MI (2026)

04/24/2024

The Federal Trade Commission (FTC) has made a groundbreaking move by issuing a final rule that bans noncompete agreements across the country.

The decision intends to significantly increase competition, enhance worker mobility, and stimulate innovation and entrepreneurship. In January 2023, the FTC issued a proposed rule (the banning of non-competes) which was subject to a 90-day public comment period. The FTC received more than 26,000 comments on the proposed rule, with over 25,000 comments in support of the FTC’s proposed ban on non-competes.

Key details of the FTC's Decision:

--> Empowering Workers: The rule marks a significant step in ensuring that workers have the freedom to switch jobs, initiate new ventures, or bring innovative ideas to fruition.
--> Economic Impact: According to FTC Chair Lina M. Khan, eliminating non-competes could potentially lead to the creation of over 8,500 new startups annually. "Noncompete clauses have stifled wages, hindered innovation, and drained the dynamism from our economy," Khan noted.
-->Financial Upsides: The FTC predicts that banning non-competes will not only boost business formation by approximately 2.7% per year but also increase workers' earnings by an average of $524 annually. This rule is also projected to reduce healthcare costs by up to $194 billion over the next decade.

What happens to all the existing non-compete agreements:

This rule will nullify existing noncompete clauses unless you are a senior executive “earning more than $151,164 annually and who are in policy-making positions.”

What employers need to know:

Additionally, under this new rule, employers will have to provide notice to employees bound to a noncompete that the noncompete agreement will not be enforced against them in the future. To aid employers’ compliance with this requirement, the Commission has included model language in the final rule that employers can use to communicate to workers.

Alternatives to non-competes, per FTC:

1. Seek protection under Trade secret laws
2. Sign non-disclosure agreements (NDAs)
3. In lieu of “non-competes to lock in workers, employers that wish to retain employees can compete on the merits for the worker’s labor services by improving wages and working conditions.”

The final rule will become effective 120 days after publication in the Federal Register, which will take effect sometime in August.

Have questions? Contact us 248-671-4482

01/24/2024

In a major triumph for small businesses, attorneys Yasmin Whitmer and Kyle Huffman have successfully led their client to a legal victory in the Michigan Court of Appeals.

This decision marks a critical point for small business rights, overturning the Michigan Tax Tribunal's dismissal and emphasizing the importance of fair legal processes with tribunal and administrative bodies.

In a recent decision by the Michigan Court of Appeals, where Whitmer Law represented the Appellant, the dismissal of the Appellant/Petitioner’s case by the Michigan Tax Tribunal has been vacated and remanded for further proceedings. The Court of Appeals found that the Tribunal had not adequately considered the Grimm factors before denying the Petitioner’s motion for reconsideration, leading to an unfair dismissal of their case.

Background: The dispute arose from several Michigan Use Tax assessments imposed on Petitioner in 2022. Petitioner successfully disputed and removed three of the assessments and challenged the remaining two. However, the Tax Tribunal dismissed the case for alleged non-compliance with procedural requirements, including the identification of an authorized representative and responding to a default notice. Interestingly enough, as the Court of Appeals also noted: “although its default was premised on petitioner having failed to identify its authorized representative, neither TTR 227 nor the Tribunal’s petition form specifically required petitioner to do so other than by way of a signature.” In other words, the reason for rejecting Petitioner’s petition was never proper.

Key Points:

The Court of Appeals highlighted the Tax Tribunal's failure to consider the Petitioner's unintentional non-compliance and other relevant factors, as required under established legal standards.

The Court of Appeals noted that the Tax Tribunal did not sufficiently explore whether lesser sanctions could have served justice better, nor did it address the relative prejudice to both parties involved.

Importantly, the court vacated the Tax Tribunal’s order, opening the door for Petitioner to have its case reconsidered fairly.

This decision underscores the importance of careful judicial consideration and adherence to procedural fairness in Michigan Tax Tribunal disputes.

10/13/2022

This Friday Yasmin Whitmer be at Chicago Build 2022!

09/29/2022

A Summary of the EU’s General Data Protection Regulation (GDPR). (Yes, this may impact businesses in the US)

If you want to sell to individuals living in the European Union, the EU authority sets numerous standards for e-commerce. Each EU state needs to ratify and implement the standards, which sometimes differ from the EU directives. Therefore, to achieve compliance, one must review each nation’s laws. However, the General Data Protection Regulation (GDPR) is enacted to unify data regulations.

Companies must assess if they’re subject to particular directives, where some directives apply to transactions with EU residents while others apply only to activities within the EU.

Questions? Call us (248) 671-4482
https://whitmerlaw.com/

09/27/2022

Who is Entitled to a Construction Lien in Michigan?

Here in Michigan, each “contractor, subcontractor, supplier, or laborer who provides an improvement to real property shall have a construction lien”. In other words, basically, anyone providing value in labor or equipment can file a lien on those services. For residential projects, you need to have a contract. A ‘contract’ is anything written, oral, or implied.

What is an improvement? It’s all sorts of things like surveying, planning, repair, ornamentation, landscaping, etc.

What’s a contractor? Anyone who engages with the “owner or lessee of real property, provides an improvement to real property”.

What’s a subcontractor? Someone hired by a general contractor to perform work under the contractor's contract.

Do you have questions about construction liens in Michigan? Connect with us if you do.

(248) 671-4482
https://whitmerlaw.com/

08/30/2022

When there are co-lessees to real property, how will liens attach?

In Michigan, two parties may co-lease property with only one of the co-lessees contracting for the improvements. A co-lessee is defined as “a person having an interest in real property, the nature of which is identical to that of the interest of the lessee who contracted for the improvement to the real property, whether the extent of such interest is identical or not.”

Thus, two parties who have leasehold interests in property may be deemed co-lessees; however, a tenant will not be considered a co-lessee with a land contract vendee since the nature of their interests are not identical. Nevertheless, if one co-lessee enters into a contract for improvements to the property, then the other co-lessee has consented to the improvement (although with evidence this presumption is rebuttable).

Despite the presumption of consent in Michigan, the non-contracting co-lessee’s liability is not coextensive with that of the contracting co-lessee. While a non-contracting co-lessee will have its interest subject to foreclosure if the lien is foreclosed, any deficiency after the foreclosure may not be recovered from that party. And so, a tenant who wants to make improvements to its leasehold interest could avoid personal liability for those improvements by entering into the lease through a corporation whose only asset is the leasehold interest. The corporation could then contract for the improvements. If the tenant is not able to pay for the improvements, the tenant would lose its leasehold interest in a foreclosure sale. However, any deficiency in the amount owed could only be recovered from the corporation, whose sole asset was the leasehold improvement.

https://whitmerlaw.com/
(248) 671-4482

08/25/2022

Is a contractor eligible to file a lien if a lessee contracts for improvements to real property?

Many construction contracts are entered into for improvements to property not owned by the party seeking the construction services. While lessees who contract for improvements to the leasehold have many reasons for doing so, most do so for their own profitable use of the property. Michigan treats a lessee as though it is an owner when dealing with any subsequent liens.

When a lessee contracts for improvements to real property, a construction lien attaches to the lessee’s entire interest. If the lessee acquires additional interests in the real property after the construction lien is filed, the lien will attach to the additional real property interests. Therefore, if a tenant in a strip mall contracts for improvements to its store, any liens that are filed attach to that tenant’s leasehold interest in the strip mall. If the tenant acquires additional space at the mall, the construction lien will attach to this expanded interest, since it is covered by the same legal description. This expansion of the lien attachment continues should the tenant later purchase the entire strip mall.

Got questions?

Tel. (248) 671-4482 || Website

08/23/2022

What if a property owner has paid the amount owed on the contract but the subcontractor has NOT been paid, may the subcontractor file a lien?

No, actually.

There is an interesting case in Michigan: DLF Trucking, Inc v Bach, 268 Mich App 306. In this case, the subcontractor filed a construction lien when they became worried a general contractor would not pay the remaining balance for the work performed. On the same day, sneakily, the contractor gave the mortgage company a waiver of lien, which states the subcontractor was paid and waived lien rights on the property. However, the waiver was forged from a previous waiver of lien executed by the same subcontractor.

Relying on the forged waiver, the mortgage company disbursed its final draw to the contractor on behalf of the owners. When the subcontractor sought to enforce its lien, the court found that because the owners had met Michigan’s statutory requirements for liens, including filing an affidavit of full payment, the subcontractor’s construction lien didn’t attach.

This is a legal mechanism is for protection of both the property owner and lien claimants. The subcontractor's action is not with the owner, but with the general contractor.

Got questions?

Tel. (248) 671-4482 || https://whitmerlaw.com/

08/18/2022

What are the limits on lien amounts in Michigan?

As a property owner, you may be protected from excessive liens in Michigan. The sum of ALL liens on a property cannot exceed the amount left unpaid on a contract between an owner and a general contractor, including contract amendments. Further, the amount owed to a contractor is reduced by payments made. However, in Michigan one can recover consequential damages that may exceed the dollar value stated in the construction contract. But, these fall outside the subject of a construction lien since they weren’t part of the contract.

08/16/2022

GDPR Compliance Obligations (YES, this includes US companies engaged in e-commerce with European Union residents)

A U.S. entity must comply with the General Data Protection Regulation “GDPR” (the European Union data protection regulation) if any action prompts the compliance requirements. Previously, we discussed when the GDPR may apply. If the GDPR does apply, here is a summary of the main requirements for compliance. You must be:

1. Performing audits to identify personal data that may be subject to the GDPR.

· How is data collected?
· How is data used or shared?
· Where is data processed/stored?

2. Informing your customers about the reasons why you are processing their data.

3. Appointing a data protection officer (DPO) who must report to the top management in the organization and be free from any interference when recommending GDPR compliance.

4. Developing GDPR ‘consent to process’ and authorization forms, updated to contain explicit and clear language.

5. Knowing how to create a procedure to find, manage, and report data breaches.

6. Identifying cross-jurisdictional data flows, ensuring transfers comply with the GDPR.

These are just some of the key GDPR requirements.

If you have any questions, connect with us:

(248) 671-4482
https://whitmerlaw.com/

08/12/2022

Do you know the main data protection requirements for a US company doing business in the European Union?

If a US entity performs an action that prompts the EU's General Data Protection Regulation (GDPR) requirements, there are several key requirements to enact. Do you know what they are?

We'll get into it next Tuesday...

https://whitmerlaw.com/
(248) 671-4482

08/10/2022

What happens to a property owner’s interest after a lien attaches?

In Michigan, an owner is “a person holding a fee interest in real property or an equitable interest arising out of a land contract.” To sell/use property as security (for debts) depends on the owner’s ability to provide assurance that clear title may be transferred after a sale or that the lender can secure the property if an owner fails on the loan. The possibility of a construction lien inhibits the owner’s ability to sell or provide security on the property. Potential buyers may then ask for price concessions or indemnifications when taking a property with a lien. Other problems may be the lender is unwilling to advance funds if they cannot recover the full loan amount on a sale.

Filing a lien is a useful tool if you are a contractor and have yet to be paid.

Whitmer Law, PLLC

04/24/2024

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