Five Stories That Matter in Michigan This Week – June 14, 2024

  1. National Business Groups Sue Over New DOL Overtime Rules

On April 23, 2024, the U.S. Department of Labor (DOL) released its much-anticipated final rule related to federal overtime guidelines under the Fair Labor Standards Act (FLSA). Effective July 1, 2024, the minimum salary for exemption from overtime as an executive, administrative, or professional employee will increase from $684 per week ($35,568 annualized) to $844 per week ($43,888 annualized). On January 1, 2025, this threshold will further increase to $1,128 per week ($58,656 annualized). The rule also raises the minimum total annual compensation level for exemption as a “highly compensated employee” from $107,432 to $132,964 effective July 1, 2024, and to $151,164 effective January 1, 2025. These thresholds will continue to be adjusted every three years starting July 1, 2027. A group of national business associations recently sued to prevent the implementation of the DOL’s new rule.

Why it Matters: If the rule goes into effect as planned, it will have a substantial impact on businesses, requiring them to either raise salaries for certain employees or reclassify them as non-exempt and pay overtime wages. While the rule is being challenged, it’s uncertain whether this or any other lawsuits that may be brought will slow down or stop the rule’s implementation before the rule takes effect.

———

  1. Election Year Considerations for Exempt Entities

As another election season approaches and the candidates and issues begin to come into focus, now is a good time to review the regulations that govern exempt organizations and their involvement in politics.

Why it Matters: This article focuses on the direct activities of certain exempt entities and not on the use and function of affiliate organizations, such as a Political Action Committees (PACs). Exempt entities may find it useful to establish a PAC for use in organizing and operating the political and lobbying activities supportive of the organization’s exempt purpose. Read more from attorney Bob Burgee.

———

  1. Gain Peace of Mind Through Life’s Toughest Challenges

Family law involves deeply personal and often emotional issues – that can be as complicated as they are sensitive. A strong family law attorney understands the judicial processes and procedures, while also handling your case with care and compassion.

Why it Matters: Fraser Trebilcock attorney Paula C. Spicer has over a decade of experience assisting clients in family law matters. Paula compassionately and efficiently works with clients to help them understand their options and navigate the often challenging and emotional situations. Learn more how she may be able to assist.

———

  1. Fraser Trebilcock Attorney Obtains Full Dismissal for Firm Client

Fraser Trebilcock Shareholder and Real Estate Department Chair Jared A. Roberts obtained full dismissal of another Bureau of Professional Licensing complaint brought against a real estate brokerage and a salesperson.

Why it Matters: “The key to understanding and properly defending this case,” Jared advised, “was to perform a comprehensive review of all communications.” Once that was done “we were able to find party consent for an action that the Complainant and the Department were alleging was unauthorized.” As Michigan’s leading real estate broker defense attorney advises, carefully preserve all communications in your deal file – they may be instrumental in your defense. Learn more.

———

  1. The Ins and Outs of Cottage Succession Planning in Michigan (Part One)

When purchasing a cottage, it’s often the intent of the owner to pass the cottage on to future generations to enjoy. Unfortunately, that vision may not become a reality due to challenges such as high property taxes, differing objectives among heirs and resulting family disputes that result in the cottage being sold upon the owner’s death.

Why it Matters: Common issues that prevent the passing of a cottage to future generations in Michigan can be addressed through careful cottage succession planning. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Business & Tax | Robert Burgee
Family Law | Paula Spicer
Real Estate Law | Jared Roberts
Cottage Law | Mark Kellogg

Five Stories That Matter in Michigan This Week – May 31, 2024

  1. Sixth Circuit Finds No Enforceable Requirements Contract in Automotive Supply Dispute

The Sixth Circuit Court of Appeals recently reversed a district court’s preliminary injunction that had compelled an automotive supplier to continue supplying seatbelt parts to another automotive company at the contract price. The court found that the parties’ contracts lacked a clear and precise quantity term, and thus did not constitute an enforceable requirements contract under Michigan law, as clarified by the Michigan Supreme Court’s 2023 decision in MSSC, Inc. v. Airboss Flexible Products Co. Consequently, the supplier was free to accept or decline purchase requests on a release-by-release basis.

Why it Matters: The Sixth Circuit’s decision in Higuchi International Corp. v. Autoliv ASP, Inc. underscores the importance of carefully drafting contracts to ensure they meet the requirements for an enforceable requirements contract under Michigan law. Michigan businesses should review relevant contracts with their Fraser Trebilcock attorney.

———

  1. Keep Your Michigan Cottage in the Family

The family cottage is a place for fun and relaxation in Michigan. For many, the family cottage becomes the meeting place for generations and where lifelong memories are made. As a result, it’s often the intent of the owner to pass the cottage on to future generations to enjoy. Unfortunately, challenges such as high property taxes and family disputes can prevent that from happening. These obstacles can be overcome through careful cottage succession planning.

Why it Matters: If you own a cottage in Michigan, our Cottage Law team can help you think through the issues and take the actions necessary to create a cottage plan. A cottage plan usually addresses the concerns through the creative use of a limited liability company (LLC) or a trust to own the property. Learn more from your cottage law attorney.

———

  1. Gain Peace of Mind Through Life’s Toughest Challenges

Family law involves deeply personal and often emotional issues – that can be as complicated as they are sensitive. A strong family law attorney understands the judicial processes and procedures, while also handling your case with care and compassion.

Why it Matters: Fraser Trebilcock attorney Paula C. Spicer has over a decade of experience assisting clients in family law matters. Paula compassionately and efficiently works with clients to help them understand their options and navigate the often challenging and emotional situations. Learn more how she may be able to assist.

———

  1. June Business Education Series

Most entrepreneurs and business leaders face similar frustrations – employee conflicts, lack of sales, profit woes and inadequate growth. Decisions never seem to get made, or, once made, they fail to be properly implemented. There is a solution, and it is not complicated or theoretical.

Why it Matters: The Entrepreneurial Operating System (EOS) is a practical method for achieving the business success you have always envisioned. More than 100,000 companies have discovered what EOS can do. Learn more and to register.

———

  1. DEA Recommends Cannabis Rescheduling: Developments and Implications for the Industry

The industry may soon experience a major shift, as the Drug Enforcement Administration (DEA) moves to reschedule cannabis to Schedule III. This decision follows a recommendation from the Department of Health & Human Services (HHS), which is supported by scientific evidence reviewed by the FDA.

Why it Matters: The expected rescheduling of cannabis to Schedule III will have notable implications for cannabis businesses. The removal of cannabis from I.R.C. Section 280E will provide significant tax relief for state-legal cannabis operators, and the possibility of increased banking access could enhance the industry’s financial stability and growth potential. Nevertheless, cannabis companies will continue to face certain limitations stemming from the persistent federal prohibition of cannabis. Read more.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Cottage Law | Mark Kellogg
Family Law | Paula Spicer
Cannabis Law | Sean Gallagher

Five Stories That Matter in Michigan This Week – May 24, 2024

1.Michigan Supreme Court Endorses Third-Party Retaliation Claims

On May 10, 2024, in Miller v. Dep’t of Corrections, the Michigan Supreme Court endorsed third-party retaliation claims under the Elliot-Larsen Civil Rights Act. This decision aligns Michigan with the 2011 U.S. Supreme Court ruling that Title VII’s anti-retaliation provision covers third-party retaliation claims, even though the statute does not explicitly recognize such a theory.

Why it Matters: This ruling significantly expands the potential number of retaliation claimants to include third parties. As a result, employers in Michigan may face an increased number of retaliation claims. The exact parameters of what constitutes a sufficient connection for these claims will need to be clarified by lower courts in future cases.

————-

2.DEA Recommends Cannabis Rescheduling: Developments and Implications for the Industry

The industry may soon experience a major shift, as the Drug Enforcement Administration (DEA) moves to reschedule cannabis to Schedule III. This decision follows a recommendation from the Department of Health & Human Services (HHS), which is supported by scientific evidence reviewed by the FDA.

Why it Matters: The expected rescheduling of cannabis to Schedule III will have notable implications for cannabis businesses. The removal of cannabis from I.R.C. Section 280E will provide significant tax relief for state-legal cannabis operators, and the possibility of increased banking access could enhance the industry’s financial stability and growth potential. Nevertheless, cannabis companies will continue to face certain limitations stemming from the persistent federal prohibition of cannabis. Read more from your Fraser Trebilcock attorney.

————-

3.Michigan CRA Publishes April ’24 Data: Average Price Decreases

Per data released by the Cannabis Regulatory Agency (CRA), the average retail price for adult-use sale of an ounce of cannabis in April was $86.61, a decrease from $90.70 in March. This is a decrease from April 2023, where the average price was $87.76.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices.

————-

4.June Business Education Series

Most entrepreneurs and business leaders face similar frustrations – employee conflicts, lack of sales, profit woes and inadequate growth. Decisions never seem to get made, or, once made, they fail to be properly implemented. There is a solution, and it is not complicated or theoretical.

Why it Matters: The Entrepreneurial Operating System (EOS) is a practical method for achieving the business success you have always envisioned. More than 100,000 companies have discovered what EOS can do. Learn more and to register.

————-

5.Fraser Trebilcock’s Growth Continues with Grand Rapids Office Relocation

Fraser Trebilcock Davis Dunlap & Cavanaugh, P.C., one of Michigan’s well established law firms with a history of providing excellent legal services, is pleased to announce it has relocated its Grand Rapids office. This move is a testament to the firm’s continued ability in taking a proactive approach in providing comprehensive legal solutions across a wide range of practice areas, helping clients capitalize on potential opportunities.

Why it Matters: In late April, Fraser Trebilcock’s Grand Rapids office moved to 300 Ottawa NW Suite 810, located within walking distance of all downtown restaurants, entertainment venues, museums, municipal buildings, and the Medical Mile. The office offers the full range of the firm’s legal services, including litigation, business, tax, real estate, trusts and estates, and other areas of specialty. Clients can expect the same level of professionalism and personalized attention that Fraser Trebilcock is known for. Read more.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston

Cannabis Law | Sean Gallagher

DEA Recommends Cannabis Rescheduling: Developments and Implications for the Industry

The state-licensed cannabis industry has been operating under significant constraints due to cannabis’s classification as a Schedule I substance under the federal Controlled Substances Act of 1970. This categorization, which groups cannabis with drugs like heroin and LSD, has faced growing criticism as an increasing number of states legalize cannabis for medical and recreational purposes. However, the industry may soon experience a major shift, as the Drug Enforcement Administration (DEA) moves to reschedule cannabis to Schedule III. This decision follows a recommendation from the Department of Health & Human Services (HHS), which is supported by scientific evidence reviewed by the FDA.

It’s important to note that the rescheduling process will take time before it officially takes effect. After the White House reviews the DEA proposal, a proposed rule will be published in the Federal Register. A public-comment period will follow before the proposed rule can become final. The process will almost certainly give rise to litigation and it remains unclear how long the process will take.

Impact on Taxation: Removal from Section 280E

One of the most significant effects of this rescheduling would be the removal of cannabis from the purview of I.R.C. Section 280E. This tax code provision has been a substantial obstacle for state-licensed cannabis businesses, preventing them from deducting many ordinary business expenses when calculating their taxable income. Under 280E, cannabis companies can only deduct the Cost of Goods Sold, leading to considerably higher tax burdens compared to businesses in other industries. With the rescheduling, state-licensed cannabis businesses would be able to deduct ordinary business expenses, creating a more equitable playing field and enabling them to allocate more of their revenues toward growth and expansion.

Challenges in Banking Access

Access to banking services has been another long-standing challenge for the state-licensed cannabis industry due to the federal prohibition on cannabis. Many banks have avoided working with cannabis businesses, concerned about potential legal and regulatory consequences. While the rescheduling to Schedule III might encourage more risk-tolerant banks to engage with the industry, many will likely remain hesitant as long as cannabis remains federally illegal. To comprehensively address these banking hurdles, federal legislation like the SAFER Banking Act is necessary. This act would provide protections for federally-regulated financial institutions such as banks that serve the cannabis industry in states where it is legal. The rescheduling could potentially increase legislative support for such measures, which would support the cannabis industry’s long-term financial stability and growth.

Limitations on Legal Rights and Remedies

Even with the anticipated rescheduling, state-licensed cannabis businesses will continue to encounter restrictions on their federal legal rights and remedies. Due to the ongoing federal prohibition on cannabis, state-sanctioned businesses in the industry will still face difficulties in establishing and protecting intellectual property rights, such as trademarks. Furthermore, access to bankruptcy courts will likely remain restricted, although some courts have recently demonstrated a willingness to allow cannabis-related businesses that are not directly involved in cannabis operations to utilize bankruptcy proceedings.

Conclusion

The expected rescheduling of cannabis to Schedule III will have notable implications for state-sanctioned cannabis businesses. The removal of cannabis from I.R.C. Section 280E will provide significant tax relief for state-licensed cannabis operators, and the possibility of increased banking access could enhance the industry’s financial stability and growth potential. Nevertheless, cannabis companies will continue to face certain limitations stemming from the persistent federal prohibition of cannabis. As the legal landscape evolves, it is essential for cannabis businesses to remain informed about industry developments and to collaborate with legal professionals who can offer guidance and support in navigating the shifting regulatory environment.

If you have any questions or require assistance, please contact Sean P. Gallagher.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.


Fraser Trebilcock attorney Sean P. GallagherSean P. Gallagher is an attorney at Fraser Trebilcock with experience in the highly regulated cannabis industry, working with local and state officials to advance client interests and to help mitigate risks involved and increase opportunities. You can reach him at 517.377.0820 or at sgallagher@fraserlawfirm.com.

Five Stories That Matter in Michigan This Week – May 17, 2024

  1. Michigan Legislature Considers Tax Breaks for Data Center Development

With the emergence of artificial intelligence, and its massive computing needs, data center development has exploded across the country. Michigan may soon be making a push for more data center development with a package of bills (House bills 4905-4906 and Senate bills 237-238) which, if passed, would expand sales- and use-tax exemptions for data center equipment.

Why it Matters: The economic growth potential from data center development is significant. According to McKinsey & Company,  US data center demand is forecast to grow and compound by over 10 percent a year until 2030.

———

  1. DEA Recommends Cannabis Rescheduling: Developments and Implications for the Industry

The industry may soon experience a major shift, as the Drug Enforcement Administration (DEA) moves to reschedule cannabis to Schedule III. This decision follows a recommendation from the Department of Health & Human Services (HHS), which is supported by scientific evidence reviewed by the FDA.

Why it Matters: The expected rescheduling of cannabis to Schedule III will have notable implications for cannabis businesses. The removal of cannabis from I.R.C. Section 280E will provide significant tax relief for state-legal cannabis operators, and the possibility of increased banking access could enhance the industry’s financial stability and growth potential. Nevertheless, cannabis companies will continue to face certain limitations stemming from the persistent federal prohibition of cannabis.

———

  1. Michigan Cannabis Exceeds $278 Million in April ‘24

Cannabis sales surpassed $278 million in April, via the monthly report from the Michigan Cannabis Regulatory Agency. Michigan adult-use sales came in at $276,685,182.93, while medical sales came in at $1,861,261.02, totaling $278,546,443.95.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market oversaturation that the industry is contending with.

———

  1. June Business Education Series

Most entrepreneurs and business leaders face similar frustrations – employee conflicts, lack of sales, profit woes and inadequate growth. Decisions never seem to get made, or, once made, they fail to be properly implemented. There is a solution, and it is not complicated or theoretical.

Why it Matters: The Entrepreneurial Operating System (EOS) is a practical method for achieving the business success you have always envisioned. More than 100,000 companies have discovered what EOS can do. Learn more and to register.

———

  1. Fraser Trebilcock’s Growth Continues With Grand Rapids Office Relocation

Fraser Trebilcock Davis Dunlap & Cavanaugh, P.C., one of Michigan’s well established law firms with a history of providing excellent legal services, is pleased to announce it has relocated its Grand Rapids office. This move is a testament to the firm’s continued ability in taking a proactive approach in providing comprehensive legal solutions across a wide range of practice areas, helping clients capitalize on potential opportunities.

Why it Matters: In late April, Fraser Trebilcock’s Grand Rapids office moved to 300 Ottawa NW Suite 810, located within walking distance of all downtown restaurants, entertainment venues, museums, municipal buildings, and the Medical Mile. The office offers the full range of the firm’s legal services, including litigation, business, tax, real estate, trusts and estates, and other areas of specialty. Clients can expect the same level of professionalism and personalized attention that Fraser Trebilcock is known for. Read more.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher

Five Stories That Matter in Michigan This Week – May 10, 2024

  1. Fraser Trebilcock’s Growth Continues With Grand Rapids Office Relocation

Fraser Trebilcock Davis Dunlap & Cavanaugh, P.C., one of Michigan’s well established law firms with a history of providing excellent legal services, is pleased to announce it has relocated its Grand Rapids office. This move is a testament to the firm’s continued ability in taking a proactive approach in providing comprehensive legal solutions across a wide range of practice areas, helping clients capitalize on potential opportunities.

Why it Matters: In late April, Fraser Trebilcock’s Grand Rapids office moved to 300 Ottawa NW Suite 810, located within walking distance of all downtown restaurants, entertainment venues, museums, municipal buildings, and the Medical Mile. The office offers the full range of the firm’s legal services, including litigation, business, tax, real estate, trusts and estates, and other areas of specialty. Clients can expect the same level of professionalism and personalized attention that Fraser Trebilcock is known for. Read more.

———

  1. DOL Finalizes Rule to Raise Overtime Salary Threshold

The Department of Labor (DOL) recently announced a final rule that will significantly increase the annual salary threshold required to classify employees as exempt under the Fair Labor Standards Act (FLSA). The rule will raise the minimum salary requirement in two stages, from the current level of $35,568 per year to $43,888 per year on July 1, 2024, and then to $58,656 per year on January 1, 2025, with recalculations every three years thereafter.

Why it Matters: The DOL estimates that the rule will impact approximately 1 million employees initially and another 3 million employees after the second salary increase. Employers must now decide whether to increase salaries to maintain exempt status for affected employees or reclassify them as non-exempt workers entitled to overtime pay, considering factors such as overtime hours worked, labor costs, and administrative burdens.

———

  1. CRA Issues Bulletin Regarding THCA

The Cannabis Regulatory Agency recently issued a bulletin to answer questions regarding tetrahydrocannabinolic acid (“THCA”), its status, and how businesses in the state can obtain and possess THCA.

Why it Matters: THCA is a non-intoxicating cannabinoid that is converted into THC when it goes through the process of decarboxylation (increasing temperature between 200-290 degrees). Under the Michigan Regulation and Taxation of Marihuana Act, THCA is included in the definition of THC. Licensees can obtain and sell marijuana that contains THCA, and they are allowed to convert THCA into THC as long as they abide by state laws under the MRTMA.

———

  1. June Business Education Series

Most entrepreneurs and business leaders face similar frustrations – employee conflicts, lack of sales, profit woes and inadequate growth. Decisions never seem to get made, or, once made, they fail to be properly implemented. There is a solution, and it is not complicated or theoretical.

Why it Matters: The Entrepreneurial Operating System (EOS) is a practical method for achieving the business success you have always envisioned. More than 100,000 companies have discovered what EOS can do. Learn more and to register.

———

  1. Fraser Trebilcock Attorney Robert D. Burgee Recognized as a ‘Michigan Go To Lawyer’ for Business Transactions by Michigan Lawyers Weekly

Fraser Trebilcock attorney Robert D. Burgee has been recognized by Michigan Lawyers Weekly as a ‘Michigan Go To Lawyer’ in 2024 for business transactions. “I am honored to have been recognized by Michigan Lawyers Weekly as a ‘Michigan Go To Lawyer’ for business transactions,” said Bob.

Why it Matters: Mr. Burgee serves as Co-Chair of the firm’s Business & Tax Department and Chair of the firm’s Employee Benefits Department. He has over a decade of experience assisting business clients and entrepreneurs with startups, acquisitions, succession, and growth planning, as well as more general legal guidance, including navigating civil matters, regulatory compliance, employee benefits, and human relations. Read more.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Labor, Employment & Civil Rights | David Houston
Business & Tax | Robert Burgee

Five Stories That Matter in Michigan This Week – May 3, 2024

  1. Michigan CRA Plans to Open State-Run Testing Laboratory

Crain’s Detroit Business reported this week that Michigan’s Cannabis Regulatory Agency plans to open a new testing lab by January of next year in order to promote and enforce safety standards. While funds have been allocated for the establishment and operation of a testing lab, CRA regulators reportedly are asking Michigan legislators to pass a bill that would give the agency more explicit authority to take this action.

Why it Matters: Having an independent, state-run lab would, according to regulators, help establish trust in products and root out potential corruption in the legal cannabis industry.

———

  1. Fraser Trebilcock Attorney Robert D. Burgee Recognized as a ‘Michigan Go To Lawyer’ for Business Transactions by Michigan Lawyers Weekly

Fraser Trebilcock attorney Robert D. Burgee has been recognized by Michigan Lawyers Weekly as a ‘Michigan Go To Lawyer’ in 2024 for business transactions. “I am honored to have been recognized by Michigan Lawyers Weekly as a ‘Michigan Go To Lawyer’ for business transactions,” said Bob.

Why it Matters: Mr. Burgee serves as Co-Chair of the firm’s Business & Tax Department and Chair of the firm’s Employee Benefits Department. He has over a decade of experience assisting business clients and entrepreneurs with startups, acquisitions, succession, and growth planning, as well as more general legal guidance, including navigating civil matters, regulatory compliance, employee benefits, and human relations. Read more.

———

  1. June Business Education Series

Most entrepreneurs and business leaders face similar frustrations – employee conflicts, lack of sales, profit woes and inadequate growth. Decisions never seem to get made, or, once made, they fail to be properly implemented. There is a solution, and it is not complicated or theoretical.

Why it Matters: The Entrepreneurial Operating System (EOS) is a practical method for achieving the business success you have always envisioned. More than 100,000 companies have discovered what EOS can do. Learn more and to register.

———

  1. Marijuana to be Rescheduled by DEA

It was announced this week that the DEA is planning to reclassify marijuana from a Schedule I drug to a Schedule III drug, following a recommendation from the Health and Human Services Department.

Why it Matters: While this move is still subject for review by the White House Office of Management and Budget, this clears a significant regulatory hurdle. Marijuana will still not be legal on the federal level for recreational use following this reclassification.

———

  1. FTC Issues Final Rule Banning Non-Compete Agreements Nationwide

On April 23, 2024, in a 3-2 vote, the Federal Trade Commission (FTC) issued a final rule banning non-compete clauses in most employment agreements nationwide. The rule is scheduled to go into effect 120 days after it is published in the Federal Register.

Why it Matters: Under the final rule, “Non-compete clause” is defined as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from: (i) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (ii) operating a business in the United States after the conclusion of the employment that includes the term or condition.” Read more from your Fraser Trebilcock attorneys.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Business & Tax | Robert Burgee
Labor, Employment & Civil Rights | David Houston
Business & Tax | Andrew Martin

Five Stories That Matter in Michigan This Week – April 26, 2024

  1. FTC Issues Final Rule Banning Non-Compete Agreements Nationwide

On April 23, 2024, in a 3-2 vote, the Federal Trade Commission (FTC) issued a final rule banning non-compete clauses in most employment agreements nationwide. The rule is scheduled to go into effect 120 days after it is published in the Federal Register.

Why it Matters: Under the final rule, “Non-compete clause” is defined as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from: (i) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (ii) operating a business in the United States after the conclusion of the employment that includes the term or condition.” Read more from your Fraser Trebilcock attorneys.

———

  1. State and Local Governments Subject to ADA Website Rules

On April 23, 2024, in a 3-2 vote, the Federal Trade Commission (FTC) issued a final rule banning non-compete clauses in most employment agreements nationwide. The rule is scheduled to go into effect 120 days after it is published in the Federal Register.

Why it Matters: While staffing at many schools has grown due to pandemic relief funding, student enrollment has dwindled. This report comes on the heels of another report – this one from the Michigan Center for Data and Analytics – projecting the state population could decline by nearly 700,000 residents by 2050.

———

  1. Michigan 04/20 Sales Hits All-Time High

Per data from Michigan Cannabis Regulatory Agency, sales of cannabis topped $28.5 million on April 20, 2024, an increase from the reported $21.6 million in sales from the year prior.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market oversaturation that the industry is contending with. Contact our cannabis law attorneys if you have any questions.

———

  1. The Limitations of Federal Bankruptcy Law for Marijuana Businesses

Under the federal Controlled Substances Act, marijuana remains classified as a Schedule I drug, making it illegal at the federal level. This creates a unique challenge for marijuana businesses operating legally within their state’s framework, as they are unable to avail themselves of federal bankruptcy protection.

Why it Matters: Federal bankruptcy courts have been reluctant to provide relief to debtors engaged in activities that are illegal under federal law, even if those activities are legal under state law. As a result, marijuana businesses are often left without the benefits of bankruptcy protection, such as the automatic stay, discharge of debts, and court-supervised reorganization.

———

  1. Fraser Trebilcock Attorney Secures Victory for Firm Client

Fraser Trebilcock attorney Andrew J. Moore was successful in obtaining summary disposition on behalf of the firm’s client. Plaintiff and their spouse applied for credit life insurance from the firm’s client, a prominent independent insurance company, in conjunction with an RV they purchased.

Why it Matters: The spouse misrepresented their medical history and was in fact diagnosed with and treating for a disqualifying medical condition. The spouse died of heart attack two months after purchase. The firm’s client rescinded the credit certificate, then was sued. Plaintiff claimed RV salesman misrepresented application, eligibility, insurability, and coverage limits, while simultaneously claiming RV salesman was an “agent” of the firm’s client such that they should be held liable for their misrepresentation. After discovery and at summary disposition, the Judge ruled in favor of the firm’s client and dismissed all counts. Learn more.

Related Practice Groups and Professionals

Business & Tax | Robert Burgee
Labor, Employment & Civil Rights | David Houston
Business & Tax | Andrew Martin
Cannabis Law | Sean Gallagher
Insurance Law | Andrew Moore

FTC Issues Final Rule Banning Non-Compete Agreements Nationwide

On April 23, 2024, in a 3-2 vote, the Federal Trade Commission (FTC) issued a final rule banning non-compete clauses in most employment agreements nationwide. The rule is scheduled to go into effect 120 days after it is published in the Federal Register. The FTC’s vote on the final rule comes over a year after it published a proposed rule on January 5, 2023.

Under the final rule, “Non-compete clause” is defined as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from: (i) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (ii) operating a business in the United States after the conclusion of the employment that includes the term or condition.”

The final rule covers all entities subject to the FTC Act (generally, most for-profit entities, but not non-profit organizations).

Some of the key elements of the final rule include:

    • Starting from the effective date, the ban prohibits all new post-employment non-compete agreements between employers and employees across all industries and worker types, including both senior executives and lower-level employees. It does not apply to agreements prohibiting an employee from competing against an employer while employed
    • Post-employment non-compete agreements that are already in place may continue to be enforced, but only for senior executives. The definition of a senior executive is generally an employee who holds a policy-making position and earns an annual salary exceeding $151,164.
      • Policy-making position is defined in part as “a business entity’s president, chief executive officer or the equivalent, any other officer of a business entity who has policy-making authority, or any other natural person who has policy-making authority for the business entity similar to an officer with policy-making authority.”
    • While employers are not obligated to formally rescind existing non-compete agreements, they are required to notify employees that post-employment non-compete agreements are no longer enforceable.
    • The ban makes an exception for non-compete agreements related to the sale of a business, regardless of the ownership percentage involved in the transaction.
    • The ban does not apply to contracts between franchisees and franchisors. However, it does apply to employees working for either a franchisee or a franchisor.

While the rulemaking may be a new step for the FTC, its purpose is in step with the Agency’s recent decisions; an example of which was included in the press release announcing the proposed rule, “This [rulemaking] aligns with the FTC’s recent statement to reinvigorate Section 5 of the FTC Act, which bans unfair methods of competition. The FTC recently used its Section 5 authority to ban companies from imposing onerous noncompetes on their workers. In one complaint, the FTC took action against a Michigan-based security guard company and its key executives for using coercive noncompetes on low-wage employees.”

We anticipate that a number of legal challenges to the FTC’s authority to ban non-compete agreements will be mounted. The US Chamber of Commerce already announced that it will be filing a lawsuit. We will continue to keep you informed of new developments.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.


Robert D. Burgee is an attorney at Fraser Trebilcock with over a decade of experience counseling clients with a focus on corporate structures and compliance, licensing, contracts, regulatory compliance, mergers and acquisitions, and a host of other matters related to the operation of small and medium-sized businesses and non-profits. You can reach him at 517.377.0848 or at bburgee@fraserlawfirm.com.


Attorney David J. HoustonFraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.


Andrew G. Martin is an experienced registered patent attorney with history working in the automotive, electrical, and agricultural industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. You can reach him at 517.377.0834 or at amartin@fraserlawfirm.com.