Judge Denies Injunction in Michigan Executive Order Challenge

In response to the rapidly increasing outbreak of COVID-19, on March 24, 2020, Governor Whitmer signed Executive Order 2020-21, directing Michigan residents to remain at their home or in their place of residence to the maximum extent feasible. Many businesses were temporarily shut down unless deemed essential, and individuals were limited to traveling outside their homes.

On Wednesday, April 29, 2020, Michigan Court of Claims Judge Christopher Murray denied a motion for a preliminary injunction sought by several Michigan residents who claimed that the various COVID-19-related executive orders issued by Governor Gretchen Whitmer, including the “Stay Home, Stay Safe” order, and the related intrastate travel restrictions, infringed on their constitutional rights. Specifically, the previous executive orders issued by Governor Whitmer that required residents to stay home and restricted travel were alleged to have violated Plaintiffs’ rights to both procedural due process and substantive due process.

The Judge determined that the plaintiffs have not shown a substantial likelihood of success on the merits in their challenge to the executive order restrictions.

Judge Christopher Murray further noted in his opinion that, “It is true that this measure is a severe one, and greatly restricts each of our liberties to move about as we see fit, as we do in normal times. But the governor determined that severe measures were necessary, and had to be quickly implemented to prevent the uncontrolled spreading of the virus.”

This procedural denial of the request for a preliminary injunction does not resolve the overall merits of the case in question, but does give an indication of the Judge’s opinion as to the potential success of the plaintiffs in this case.

NOTE: On April 30, Governor Whitmer replaced prior orders with Executive Order 2020-69, to be in force through May 28, 2020.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Downtown Lansing New Parking Tutorial

Beginning in late 2019, Downtown Lansing installed solar-powered pay stations for on-street parking, moving away from the previous parking meters. This tutorial from the City of Lansing will assist you on how to use these new pay stations. You can visit the City of Lansing’s website here to read more.

How it works:

  1. Park your vehicle as usual.
  2. Make a note of your license plate number.
  3. Look for any conveniently located pay station.
  4. Press the start key to “wake” the unit up from power save mode.
  5. Using the key pad enter your license plate number and zone number your vehicle is located in, then press the green check mark button to confirm.
  6. Insert your pay method of change or credit/debit card.
  7. Select your stay time using the blue “-” and “+” buttons shown on the keypad. Press the red cancel button if you need to start over.
  8. Press the green button on the keypad to confirm stay time and your receipt will be printed.
  9. Take your receipt with you. The time your parking expires is printed right on the receipt.

Drivers Beware: A Seemingly Safe and Legal Driving Maneuver Could Come with Potentially Life-Changing Hazards

Red LightFor more than 30 years, Fraser Trebilcock attorney Gary Rogers has handled automobile negligence litigation. Recently, he has litigated a number of claims arising out of what you might think would be a rather safe driving maneuver – turning right on a red light, after determining there is no oncoming traffic. Continue reading Drivers Beware: A Seemingly Safe and Legal Driving Maneuver Could Come with Potentially Life-Changing Hazards

CLIENT ALERT: New Corporations Online Filing System Launches Monday, October 30, 2017 in Michigan

Business Online FilingOn Monday, October 30th, the Department of Licensing and Regulatory Affairs (LARA) will launch a new Corporations Online Filing System (COFS) for Michigan businesses. This system  will allow businesses to submit documents and annual filings, pay filing fees, and order certificate, and will replace the MICH-ELF system. The service also features an expanded search function.

Michigan Businesses Will Be Assigned New ID Numbers for COFS

Businesses will be assigned new entity identification numbers to use when submitting documents. These numbers have been  mailed to all resident agents of Michigan business entities. It is important that resident agents save this information. It includes log-in instructions, the new entity identification number, as well as a customer identification number and PIN, which will be used as a username and password to log into new system.

It is important to note that business taxpayer identification number(s) used by the Michigan Department of Treasury and federal Internal Revenue Service (IRS) will remain unchanged.

If you have any questions, LARA has provided a detailed guide online at the Corporations Division website. Anyone needing further assistance can reach out to the Corporations Division during extended help hours, from Monday, October 30th to Thursday, November 9th from 8:00 a.m. to 6:00 p.m. EST.

Learn more about the new system from LARA: New Corporations Online Filing System (COFS) Cuts Red Tape for 800,000+ Businesses in Michigan.


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President Trump Signs Executive Order on Health Care; HHS Announces CSR Payments to be Discontinued Immediately

President Donald Trump
Photo of President Trump’s news conference, courtesy of the White House.

Yesterday, October 12, 2017, President Trump issued an Executive Order entitled “Promoting Healthcare Choice and Competition Across the United States” (the “Order”). Also on October 12, 2017, the Department of Health and Human Services released a statement that the cost-sharing reduction payments authorized by section 1401 of the Patient Protection and Affordable Care Act (“subsidies”) will be discontinued immediately (the “HHS Statement”).

Executive Order

The Order articles a “policy of the executive branch, to the extent consistent with law, to facilitate the purchase of insurance across State lines and the development and operation of a healthcare system that provides high-quality care at affordable prices for American people.” To meet this policy goal, President Trump announced that his administration will prioritize three areas of law in the new future: (1) Association Health Plans (“AHPs”); (2) Short-term, Limited-Duration Insurance (STLDI); and (3) Health Reimbursement Arrangements (“HRAs”).

To the extent consistent with law, the Order relevantly announces that government rules and guidelines should expand the availability of and access to PPACA insurance alternatives, including AHPs, STLDI, and HRAs. To effectuate this goal, the Order relevantly indicates:

“Sec. 2. Expanded Access to Association Health Plans. Within 60 days of the date of this order, the Secretary of Labor shall consider proposing regulations or revising guidance, consistent with law, to expand access to health coverage by allowing more employers to form AHPs. To the extent permitted by law and supported by sound policy, the Secretary should consider expanding the conditions that satisfy the commonality of-interest requirements under current Department of Labor advisory opinions interpreting the definition of an “employer” under section 3(5) of the Employee Retirement Income Security Act of 1974. The Secretary of Labor should also consider ways to promote AHP formation on the basis of common geography or industry.”

“Sec. 3. Expanded Availability of Short-Term, Limited Duration Insurance. Within 60 days of the date of this order, the Secretaries of the Treasury, Labor, and Health and Human Services shall consider proposing regulations or revising guidance, consistent with law, to expand the availability of STLDI. To the extent permitted by law and supported by sound policy, the Secretaries should consider allowing such insurance to cover longer periods and be renewed by the consumer.”

“Sec. 4. Expanded Availability and Permitted Use of Health Reimbursement Arrangements. Within 120 days of the date of this order, the Secretaries of the Treasury, Labor, and Health and Human Services shall consider proposing regulations or revising guidance, to the extent permitted by law and supported by sound policy, to increase the usability of HRAs, to expand employers’ ability to offer HRAs to their employees, and to allow HRAs to be used in conjunction with nongroup coverage.”

At this point is time, no changes to the law have occurred; this Executive Order merely indicates the President’s intent to make changes to the current regulatory structure in the near future. A copy of the Order is available at: www.whitehouse.gov/the-press-office/2017/10/12/presidential-executive-order-promoting-healthcare-choice-and-competition

HHS Statement

The HHS Statement indicates that its decision to immediately discontinue subsidies is based on a legal opinion issued by the Attorney General. A copy of the HHS Statement and the Attorney General opinion letter are available at: www.hhs.gov/about/news/2017/10/12/trump-administration-takes-action-abide-law-constitution-discontinue-csr-payments.html

We will keep you apprised of future developments in this regard.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2018 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

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Attorney Elizabeth Latchana honored among Michigan’s ‘Women in the Law’

Elizabeth Latchana Honored by Michigan Lawyers Weekly

When the entire country was seeking to understand and respond to the myriad of employee benefit changes, mandates and associated penalties accompanying the passage of the Patient Protection and Affordable Care Act, Fraser Trebilcock attorney Elizabeth Latchana stepped up to the challenge and became a leading advisor to employers of all sizes across the state of Michigan – and beyond.

“Her dedication to providing clients and the community with the most current information and updates has inspired one of the most active blogs for this legal practice in the state of Michigan,” said Fraser Trebilcock President Brian Morley. “With the proposed changes under the new administration and, for that matter, all future administrations that may aim to continue tweaking or outright changing the laws, Beth’s legal guidance and leadership will be needed for many years to come. We are grateful to have her experience on our side at Fraser.”

Beth found her niche in the transactional health and welfare employee benefits practice just a few years into her legal career.  “With the incredible training and assistance of my predecessor and others, I was able to learn, grow, and expand Fraser’s health and welfare employee benefits practice area, sevenfold, and am sincerely honored to have received some accolades along the way,” she says.

Selected in 2015 as “Lawyer of the Year” for Employee Benefits (ERISA) Law in Lansing by Best Lawyers, the Genesee County native has achieved an AV Preeminent peer review rating by Martindale-Hubbell, and continues to be selected by Leading Lawyers and Best Lawyers. Her most recent accolade is selection as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly, and she will be among those honored at a Sept. 7 luncheon in Troy.

When the graduate of Alma College and University of Notre Dame Law School first joined Fraser Trebilcock as an associate, she set a number of goals, from hitting certain billable hour thresholds, to attaining shareholder status, to growing a client base and expanding her practice, to serving on the Board of Directors, all while volunteering in the community and raising a family.

“Nearly 19 years later, I’m happily still a member of the Fraser Trebilcock family, and I’m pleased to say I’ve met each one of my goals,” she says. “I’m proud of my longevity at this great law firm and happy to be of service to it.”

A vice president on Fraser Trebilcock’s Board of Directors, co-chair of the Employee Benefits practice, and an employee benefits coordinator, Latchana became a leading advisor to employers following the passage of the Patient Protection and Affordable Care Act.

She recalls a tip from a senior associate in the early years: make the boss’ job easier. “It led me to focus on working as a team, not just completing a legally correct and hopefully impressively shiny project, but going the extra mile to reach beyond the assignment to simplify the shareholder’s own work,” she says.

“I’ve taken that advice to heart to this day, now with my own clients, helping navigate them through legal hoops and finding creative solutions while ensuring this is done in a way to allow them to focus on what’s most important to them, their own business. I’m able to use creative thought to develop solutions for clients while ensuring they are complying with the plethora of legal mandates thrown at them in the ever-evolving world of employee benefits.”

[pjc_slideshow slide_type=”women-in-the-law-2017″]

The legal industry is one which focuses on serving others, which Beth feels drawn to.  Giving of oneself to the assistance and hopefully betterment of others is, she says, what life is all about.  “As lawyers, we are held to incredibly high ethical and professional standards, as well as displaying an excellent work ethic.  We have been trained this way, and it is ingrained in our very being.  Therefore, it’s almost impossible for these standards not to trickle over in one’s personal life and activities, and in all ways we serve.”

With her own legal practice in the health and welfare benefits arena, she is able to use creative thought to develop solutions for clients while ensuring they are complying with the plethora of legal mandates thrown at them in the ever-evolving world of employee benefits.  “My goal is serve my clients in a way that allows them to have full confidence in their benefit structure so they can focus on their own business…”

Personally, her practice has enabled her to balance professional life with things she enjoys outside of work.  A mother of three, Latchana serves as being a role model for youth and assists her community through activities including participating in alumni career fairs, coaching and managing youth in various recreational sports leagues, assisting with creating a community dog park, organizing and collecting donations for local shelters, or serving in leadership capacities of local non-profit organizations, most recently the Board of Directors for the Food Bank of Eastern Michigan.

And if Beth commits to something, she utilizes those high standards she was taught to ensure the task is completed to the best of her ability, no matter the subject.

Click HERE to sign up to receive updates and alerts on matters related to Employee Benefits Law. You can also learn more about the legal services provided by Beth and our Employee Benefits attorneys, in their own words:




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New Research Likely to Lead to Increase of Concussion Related Litigation

As sports concussion awareness continues to gain national headlines, so too will concussion related litigation.

A study published by the Journal of the American Medical Association made headlines recently for its findings relating to the development of chronic traumatic encephalopathy (CTE) in former NFL players.[1] The research examined the brains of 111 deceased former NFL players and found evidence of CTE in 110.  Somewhat lost in the headlines was that researchers also examined brains of former football players at all levels, not just those who participated in the NFL. According to the study, evidence of CTE was found in three of the 14 brains of players who only played in high school and in 48 of 53 college players whose brains were studied. In total, of those examined, CTE was diagnosed in over 87% of former football players at all levels.

While this new research is certainly bound to affect on-going concussion litigation against the NFL and NCAA, expect it to also accelerate the trend of lawsuits against youth sport organizations and high schools relating to concussions and safety protocol.

Between 2009 and 2015, all 50 states and the District of Columbia passed laws to address the issue of concussions in youth sports, mostly modeled on Washington State’s groundbreaking Lystedt Law. This new CTE research may lead to the enactment of stricter concussion protocols.  However, more stringent standards could actually contribute to an increase in concussion related litigation. Recently, the Supreme Court of Washington (the first state to enact concussion safety laws) ruled that the family of a deceased high school football player could proceed with claims against the high school and coach for violations of the legislation based on an implied cause of action theory.[2]

While participation in tackle football may be down in recent years, according to a 2016 survey published by the National Federation of State High School Associations, football remains the number one high school participation sport in the United States. This fact, coupled with the recent CTE revelations is likely to lead to an uptick in the amount of concussion related litigation.

To learn more, contact an attorney at Fraser Trebilcock at 517.482.5800 or by clicking here to fill out this form on our website.

[1] “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football,”  Journal of the American Medical Association, Vol 318, No. 4, Pgs. 360-370 (2017).
[2] Swank v Valley Christian School, — P.3d —- (2017); 2017 WL 2876139 (Wash. July 6, 2017).

7 Tips About Data Breach Prevention and Cybersecurity for Small Businesses

We see it in the news on a regular basis. Major corporations like Anthem, eBay, Sony Pictures, and Target have all suffered major data security breaches. But these breaches don’t only happen to major businesses. Companies of all sizes are targets. Sometimes, smaller companies are even bigger targets because protections may be lax.

So how do businesses of all sizes go about data breach prevention and cyber security? Here are seven tips to strengthen your business against a data breach.

1. Train employees and users on data breach prevention

Human error is often to blame for most breaches. The easiest way for a hacker to invade your network is by preying on an employee who doesn’t recognize the risk. Whether through a malware email attachment, or by downloading a document from an unreliable resource, there is a wide variety of easy phishing attempts that can lead to a data breach. The key to prevention is teaching your employees how to avoid making these common mistakes. Also, include a technology protocol section in your employee handbook where your team can easily access it. This section should cover proper steps to take to protect your technology, especially anything that could be considered a trade secret, or private customer/client information and data.

2. Store customer data in an encrypted database

Another tip for data breach prevention is to use a secure database and encrypt any items containing customer/client information or trade secrets. The encryption process converts that information or data into a code, which then works to prevent unauthorized access. A common example of this process is the one used when you make an online purchase. Once you enter your payment information onto an ecommerce website and it has been approved, your information is encrypted before it is stored on the website. When you later go back to the website to make another purchase from your account, your information is ready to use.

3. Improve cybersecurity with two-factor authentication

Two-factor authentication adds an extra layer of protection to logging into a website. After a user inputs the required login and password, an extra step is initiated to ask the user for another piece of information that only he or she would have. For example, a text message with a one-time code may be sent to the user’s phone, which is tied to the account. Two-factor authentication is very important for data breach prevention if your business has devices that go in and out of the office, such as tablets or laptops, making sure they are secure in the event they become lost or stolen.

4. Malware detection software on both servers and workstations

Each workstation inside your business, as well any servers, need to have malware detection software installed to help with data breach prevention. The detection software prevents malware from being installed. Malware can be hidden in a variety of formats, the detection software helps scan each item to ensure its safety. There are a variety of different software packages available for businesses, depending on the level of security needed.

5. Perform regular vulnerability checks

It’s critical that you perform regular vulnerability checks to minimize the risk and prevent data breaches. For example, it’s important that firewall configurations be reviewed regularly with penetration testing, to make sure only trusted networks are given access. Software updates may also vary with your malware protection software. There are programs that can run regular checks, or you can look to a third-party IT company for assistance. It’s also important that you continue to test and train employees through phishing emails to ensure they stay vigilant.

6. Require frequent remote data backups

Whether routinely completed on the cloud or on an external hard drive, remote data backups ensure that your data is stored securely. A routine backup allows you to have a reference point if your data is breached in the future. Most backup providers allow you to pick the frequency of the backup, time of day it occurs, and what level of information detail you would like to store.

7. Have a disaster plan ready in case of a data breach

Protecting your business against a data breach is an ongoing process. Under the Michigan Identity Theft Protection Act, in the event of a data breach that is likely to cause harm or result in identify theft, a business must provide a notice of the security breach to each affected Michigan resident, customers and vendors affected by the breach, as well as consumer reporting agencies. Keep in mind, the notifications must be precise and meet certain statutory requirements.

Unfortunately, even with planning, a cyberattack can still happen. Be prepared by having a disaster plan ready, and be sure to include the proper steps for employees to take both during and after an attack. Review the plan as an internal team frequently to ensure that everyone has a clear understanding of timelines and responsibilities. Time is of the essence during a data breach, and having a disaster plan prepared will make that stressful time more efficient.

To learn more, contact an attorney at Fraser Trebilcock at 517.482.5800 or by clicking here to fill out this form on our website.


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Michigan Supreme Court Clarifies Eligibility for Charitable Property Tax Exemption

This week the Michigan Supreme Court in Baruch SLS Inc v Township of Tittabawassee (MSC Docket No 152047) clarified how the factors are to be considered in determining whether real property is exempt from taxation. Continue reading Michigan Supreme Court Clarifies Eligibility for Charitable Property Tax Exemption