Category Archives: Articles

Consumer: General Breach of Contract

If someone breaches a contract with you and you wish to demand payment for the damages or losses you have suffered as a result, there are several steps you can take:

  1. Review the contract: Before taking any action, review the terms of the contract carefully to ensure that the other party has actually breached the contract. Make sure you have a clear understanding of the obligations of each party under the contract, as well as any relevant deadlines, payment schedules, or other requirements.
  2. Contact the other party: If you believe that the other party has breached the contract, the first step is to contact them and explain the situation. Be clear and specific about the ways in which they have breached the contract, and provide any supporting documentation or evidence you have.
  3. Demand payment: Once you have contacted the other party and explained the situation, you should demand payment for the damages or losses you have suffered as a result of their breach of the contract. Be specific about the amount you are owed and the timeline for payment.
  4. Consider legal action: If the other party refuses to pay or disputes your claim, you may need to consider legal action. Depending on the amount of money involved, you may be able to pursue the matter in small claims court or you may need to hire an attorney and pursue a lawsuit in state court.
  5. Document everything: Throughout the process of demanding payment and potentially pursuing legal action, it is important to keep careful records of all communications, agreements, and transactions related to the contract. This documentation can be used as evidence if the matter goes to court.

In summary, if someone breaches a contract with you and you wish to demand payment, it is important to review the contract carefully, contact the other party, demand payment, consider legal action if necessary, and document everything carefully.

The Cooperative Approach: A Unique Pathway to Real Property Acquisition

When we envision the purchase of real estate, the conventional path of an individual or business buying property directly often comes to mind. However, there exists an alternative method that offers a unique blend of collective ownership and personal use – purchasing real estate through a cooperative, or “co-op”.

Cooperatives are not a new concept. They have been used for many years in various industries, including agriculture, retail, and real estate. In the realm of property acquisition, cooperatives offer a unique model of ownership that has the potential to make property more accessible, especially in high-value markets.

Understanding Cooperatives. A real estate cooperative is a legal entity—oftentimes a limited liability company—that owns real estate. Members of the cooperative do not directly own a specific piece of property within the cooperative’s portfolio. Instead, they own “units” (but we’ll call them “shares”) of the cooperative LLC, and these shares typical grant them the right to lease and occupy a specific part of the property, such as an apartment. The more shares a member owns, the larger the unit they can occupy. On the other hand they may also be used as a method of investing in real property and collectively renting or leasing out apartments.

Benefits of a Cooperative. Cooperatives can offer significant benefits for individuals who want to enjoy the benefits of property ownership but are faced with financial, market, or personal obstacles that make direct property ownership challenging.

1. Affordability: Co-ops often prove to be more affordable than traditional home ownership, particularly in high-value markets, making them an excellent option for first-time home buyers or those with limited funds.

2. Shared Responsibility: Members of a cooperative share in the costs of maintenance, repairs, insurance, and property taxes, making it easier to predict and manage expenses. Management companies are oftentimes hired to take care of the day-to-day.

3. Community Control: Since the co-op is managed and controlled by its members, they have a direct say in how the property is maintained and managed, providing a level of control not typically seen in rental agreements.

Legal Considerations. As with any form of property ownership, there are important legal considerations to be aware of when purchasing real estate through a cooperative:

1. Financing: Because you’re buying shares in a corporation instead of actual property, the process of obtaining a mortgage can be different from a standard home loan. Not all lenders offer loans for co-op shares, so it’s crucial to work with a lender familiar with this type of purchase.

2. Cooperative Rules: Co-ops are governed by a set of bylaws and house rules. It’s essential to review these rules carefully before buying, as they may affect your ability to rent out your unit, conduct renovations, or even sell your shares in the future. This is especially true if the cooperative shares you own are for investment purposes.

3. Board Approval: Many cooperatives require potential buyers to be approved by the cooperative board. This can be an intensive process, with the board reviewing the potential buyer’s finances, employment, and personal references.

4. Non-Traditional Ownership: Because co-op members don’t own their units outright, they often don’t have the same level of control over their property as they would in traditional ownership. This can affect everything from renovation possibilities to the ability to transfer shares to heirs. However, when compared to an Home Owners Association they are far more fair and desirable.

Cooperatives present a unique opportunity for individuals seeking a pathway to property acquisition. While they may not be a fit for everyone, with careful planning, legal guidance, and a sense of shared community, cooperatives can offer an alternative and affordable route to owning a slice of the real estate market.

Antitrust Law: Restrictive Covenants

In this context, a restrictive covenant is a clause in an employment contract that prohibits an employee from engaging in certain activities after their employment ends. These activities typically include competing with the former employer, soliciting clients or customers of the former employer, or soliciting other employees to leave the company.

Non-competition and non-solicitation clauses are both restrictive covenants. While non-competition clauses are framed so as to prevent an employee from working in a similar profession or field, usually within a specific geographic region and for a specified period of time. Non-solicitation clauses, on the other hand, are framed to prevent an employee from soliciting or doing business with the former employer’s clients, customers, or employees.

Although framed differently, they are both restrictive covenants prohibited by Michigan Antitrust law, unless they fit within an exception. To be enforceable these types of restrictive covenants are framed to protect a company’s legitimate business interests, such as trade secrets or confidential information.

Under Michigan law, these restrictive covenants are viewed through the lens of anti-trust principles. These principles generally aim to promote capitalism through fair competition and prevent practices that restrain trade. Non-competition and non-solicitation clauses, by their nature, (a) restrict a company from hiring and (b)restrict a person’s ability to freely use their experience and skills to find work.

Restrictive covenants stifle growth and competition, and in Michigan, restrictive covenants in employment are enforceable only to the extent that they are reasonable. Under the Michigan Antitrust Reform Act, a restrictive covenant must be reasonable as to its duration, geographical area, and the type of employment or line of business. It must also be necessary to protect the employer’s reasonable competitive business interests.

Furthermore, Michigan courts apply a reasonableness test, balancing the employer’s need to protect its legitimate business interests against any potential harm to the public and the undue burden on the employee. If a court determines that a non-competition or non-solicitation clause is overly broad or restrictive, it must declare it unenforceable or limit its scope to be reasonable. This makes it vital for employers to carefully draft such clauses to ensure they are reasonable and defensible.

The Law and Legacy of Memorial Day: A Tapestry of National Remembrance

There is a poignant weight to the last Monday of May. It is a day etched in somber shades, a day filled with flags unfurled at half-mast and punctuated by the solemn sound of Taps echoing through silent streets. Memorial Day, a cornerstone of the American calendar, serves as a solemn reminder of the ultimate sacrifices made by many in the service of our nation. Yet, the journey of Memorial Day, from informal observance to nationally recognized holiday, tells a story of evolving national consciousness.

The origins of Memorial Day, often attributed to a smattering of local observances in the years immediately following the Civil War, were as fragmented as the nation itself. During those early years, communities across the nation honored their fallen soldiers independently, their commemorations reflective of local traditions and sensibilities. It wasn’t until 1868 that General John A. Logan, leader of the Grand Army of the Republic, called for a national “Decoration Day” on May 30, unifying these disparate observances.

Yet, Memorial Day’s transformation from a ‘national’ observance to a federally recognized holiday reveals an intriguing tale of political wrangling and shifting societal priorities. It was not until the passage of the Uniform Monday Holiday Act in 1968, which went into effect in 1971, that Memorial Day became a federal holiday, moving its observance to the last Monday in May to ensure a three-day weekend.

The Act, aimed at providing federal employees with more three-day weekends, was met with controversy. Initially, critics argued that the move diluted the significance of Memorial Day, transforming it from a solemn day of remembrance into the unofficial start of summer. Despite the controversy, the Act highlighted an interesting dichotomy in American society: the balancing act between national remembrance and everyday pragmatism.

Moreover, the legal evolution of Memorial Day raises interesting questions about how we, as a nation, define and legislate commemoration. While Memorial Day is a federal holiday, making it a day off for federal employees and the cause for numerous closures, its observance varies greatly across states and even towns. There are no federal laws mandating how Memorial Day should be commemorated; that decision is left up to individual states, cities, and citizens.

This lack of legislative uniformity has allowed for a rich tapestry of Memorial Day traditions to flourish across the country, ranging from somber military parades to community barbecues. This flexibility within the law underscores one of the fundamental strengths of the American legal system: its ability to balance nationwide unity with regional individuality.

Finally, it’s worth reflecting on the broader legal and societal implications of Memorial Day. It serves as a moment of national reflection on the—cost of conflict and the value of sacrifice—concepts that form the backbone of our legal and political systems. It is a day that brings into focus the very rights and liberties that our legal system seeks to uphold, and the price paid by many to safeguard them.

From its fragmented beginnings to its current status as a federal holiday, Memorial Day serves as a mirror reflecting our nation’s history, our evolving legal landscape, and our collective values. It stands as a testament to the ongoing dialogue between national unity and local autonomy a dialogue that is the—very essence—of America.

When Drafted Wisely: The Severance Agreement Is A Necessity in the Corporate Toolkit

As identified in an earlier article, careless drafting of severance agreements, such as by relying on the confusion surrounding restrictive covenants named non-solicitation clauses, will inevitably lead to an unraveling of employer protections.

In a time when corporate America stands on the precipice of change, severance agreements, long a staple in the business world, are a subject of spirited debate. Often misunderstood, they serve as an important tool in a company’s arsenal, offering both economic security to the departing employee and legal protection to the employer. It’s a balance that is as delicate as it is necessary.

Severance agreements are not merely transactions; they’re strategic agreements designed to safeguard both parties during employment transitions. For the departing employee, the severance package offers an essential safety net during the uncertain period of job transition. These packages typically include a lump sum payment, benefits extension, and sometimes, outplacement services to assist in finding a new position.

Yet, beyond this, severance agreements also serve a greater purpose. They offer closure, a defined end to the professional relationship. With the signing of a severance agreement, both parties can move forward with certainty and finality.

For corporate America, the value of the severance agreement lies in its ability to manage risk. These agreements often include provisions such as non-disparagement clauses and legal claim waivers that protect the company’s reputation and limit the potential for costly and time-consuming litigation.

The inclusion of these clauses is not a cynical exercise of corporate power. Rather, it’s a reflection of the reality that businesses operate in a complex, litigious environment. These protections allow companies to continue their operations undisturbed, focusing their energy and resources on growth, innovation, and employee wellbeing.

However, corporate America is aware of the need for balance. It is essential that these agreements do not inhibit an employee’s future employment prospects, and that they are not used to mask inappropriate behavior or unfair practices. High-profile cases in the pandemic era have underscored the importance of maintaining ethical standards and transparency, lessons that resonate across the corporate landscape.

Critics argue that restrictive covenants like non-solicitation, non-compete and non-disparagement clauses unfairly restrict an employee’s professional mobility. While it’s true these provisions can limit certain actions post-employment, it’s essential to understand that the objection should be to protect trade secrets and client relationships, rather than to punish the departing employee. Restrictive covenants are falling out of favor, and employers who fail to adapt may face a harsh repercussions.

There’s also an increasing trend among corporations to provide more comprehensive separation packages to lower-level employees, not just top executives. This is part of a larger shift toward employee-focused policies, recognizing that every employee’s contribution is essential to the organization’s success.

The challenge lies in creating severance agreements that reflect both the needs of the corporation and balancing the cost of purchasing employee rights. This is where negotiation plays a crucial role. And the process of negotiation can ensure that the agreement meets the needs of both parties and withstands any legal challenge.

The role of the severance agreement in the modern corporate landscape is clear. It serves as a crucial bridge during periods of transition, a tool to protect corporate interests, and an opportunity to show good faith to departing employees. The task for corporate America is to continue refining these agreements, ensuring that they remain fair, balanced, and beneficial for all parties involved.