News

News

May 23, 2018 - The U.S. Supreme Court handed down an important decision on May 21, 2018, to the effect that employee arbitration agreements to resolve individual (only) employment disputes are enforceable and can preclude an employee from advancing or participating in a class action or, in the case of a wage-hour dispute, collective actions.

Stated another way, employers, in an effort to limit liability, can include a clause in employment agreements that require employees to arbitrate their employment disputes individually and to waive the right to resolve their employment dispute(s) through a joint legal proceeding instead. The decision is considered a significant victory for employers because it would reduce the number and potential liability of cases filed against them.

Human Resources professionals interested in a detailed discussion of this case and/or to explore possible ways to promote institutional changes to limit liability, can contact Bob Cleary.


April 23, 2018 - Border Crossing Alert: Please Enter Your Password

Detroit is one of the busiest U.S.-Canadian border crossings in the country, allowing easy access to the restaurants and casinos of Windsor, the highway to Toronto, and the shortcut to New England destinations. Yet it is a foreign border, and those entering and leaving the country also leave behind the usual constitutional protections against unreasonable search and seizure; almost any search, no matter how intrusive, can usually be conducted at a border crossing, often on the authority of the onsite Customs and Border Protection (CBP) Officer, with or without a basis to suspect that a law has been violated. This most certainly can include your laptop or smart phone, as the Department of Homeland Security recently reminded American citizens CBP Directive Number 3340-049 A, Border Search of Electronic Devices. [“Border Search”]

Is any secret information excluded from CBP’s ability to search? Confidential business information is not. Trade secrets are not. Attorney-client privileged materials are not, although CBP promises to segregate, and limit its use of such materials. The only real limitation is that “[CBP] Officers may not intentionally use the device to access information that is solely stored remotely.” [Border Search §5.1.2]. Translation: information that is stored in “the cloud” – stored on a remote server and accessed through the Internet – will not intentionally be accessed in a border search.

<a data-cke-saved-href="”https://www.dhs.gov/sites/default/files/publications/CBP%20Directive%203340-049A_Border-Search-of-Electronic-Media.pdf" href="”https://www.dhs.gov/sites/default/files/publications/CBP%20Directive%203340-049A_Border-Search-of-Electronic-Media.pdf&quot;" style="”line-height:20.8px;”> CBP Directive Number 3340-049 A, Border Search of Electronic Devices. [“Border Search”]

If you are planning a trip out of the country and taking your laptop, consider removing any confidential business information, or privileged information from the hard drive of the laptop, and accessing it via cloud-based storage. Disable any Internet access before presenting your laptop to CBP for a search. During your trip, be sure to use a secure Internet connection, and watch out for hackers (but that will be the subject of a separate article). For further information, contact Jim O’Brien.


March 20, 2018 - Detroit Stormwater Drainage Improvement Grants Available - If you own a large property in the City of Detroit with an impervious (paving, concrete, etc.) surface, you have likely been shocked by a substantial increase in water and sewer billings, reflecting the City’s attempt to recapture costs of diverting and handling storm water runoff from an outdated sewer system. You may be able to reduce the costs by reducing the amount of runoff through physical improvements, such as redirected building drainage, an on-site retention pond, or permeable pavement. Now, the City of Detroit is accepting applications for matching grants to cover up to $50,000 of the cost of qualifying storm water runoff improvements. First, you should verify that the City is charging you correctly based on the impermeable surface area of your property. Information on how the state calculated your charge, plus required forms to apply for a matching grant, are on the City’s website at http://www.detroitmi.gov/drainage. For more information, or assistance with storm water or grant application issues, contact Jim O’Brien.


January 2018Dean & Fulkerson is proud to be listed in the U.S. News & World Report’s 2018 listing of Best Law Firms. Also included in the 2017 Best Lawyers directory is Jim Dworman for Commercial Litigation; Janet Lanyon for Employment Law - Management, and Litigation - Labor and Employment; and Jim O'Brien for Environmental Law, and Litigation - Environmental.


December 1, 2017 - Dean & Fulkerson Creates Insurance Coverage & Defense Practice Group with the addition of 4 experieced attorneys. 

Dean & Fulkerson is pleased to announce that Karen Libertiny Ludden has joined the Firm as a Shareholder, along with her team of 3 senior associates, Sarah J. Brutman, Lindsey R. Johnson and Eric M. Wagman. Ludden will chair the Firm’s newly-formed Insurance Coverage & Defense Practice Group.

Ludden brings to Dean & Fulkerson 25 years of handling insurance coverage and defense matters for national insurers and private clients. She litigates and advises clients regarding complex insurance coverage issues arising under commercial general liability, commercial and personal auto, property damage and cyber policies.  She is Michigan coverage counsel for a national insurer.  She also defends commercial insureds in premises liability, trucking, product liability, auto negligence, construction and general negligence claims.  She has an extensive multi-state federal court practice, as well as a comprehensive state court practice throughout Michigan, including the appellate courts.  Her negotiation, strategic and analytical skills make her a significant asset to the firm.

Ms. Brutman concentrates her practice on commercial insurance coverage and liability defense. She handles complex litigation matters in both state and federal courts across the country, with an emphasis on property damage, construction and premises liability claims.  She routinely conducts examinations under oath for insurance carriers and is an astute analyst of coverage and strategic issues.

Ms. Johnson focuses her practice on commercial general liability defense, including premises liability claims and third party auto negligence claims. She also performs examinations under oath for various insurance companies. In addition, she handles both federal and state cases involving the Fair Debt Collection Practices Act and Truth In Lending Act on behalf of lenders and servicers, quiet title claims involving commercial and personal property, condemnation claims, and construction cases involving liens, breach of contract and bond issues.

Mr. Wagman concentrates his practice in commercial general liability defense with a focus primarily on civil defense litigation including premises liability, trucking accidents, and general negligence. Mr. Wagman also has experience in commercial litigation including contract disputes and consumer fraud, claims of institutional abuse, professional negligence, work-site accidents and products liability.  He also handles complex trust and estate litigation matters.

“Karen and her team complement the existing services we provide to businesses throughout Michigan and the country,” said James Dworman, Dean & Fulkerson’s President. “Their trucking accident expertise enhances our nationally-recognized transportation law expertise.”


November 2017 - Janet Lanyon presented at the Oakland County Bar Association Employee Benefits Committee on the Impact of the November 2017 U. S. House Tax Reform Bill on Employee Benefits


Dean & Fulkerson and the Michigan Trucking Association presented their annual Detroit Area Trucking Seminar on November 3, 2017. The room was packed with trucking managers, safety specialists, executives and CFOs. The program included engaging discussions on damaged freight (Kevin Summers), Operating in Ohio (Richard Cuneo), the new Gordie Howe International Bridge and its impact on Cross-Border Transportation (Heather Grondin), Motor Carrier Enforcement (Lt. Steven Horwood), and Tariffs (Neill Riddell).


October 12, 2017 - Dean & Fulkerson won the 5K team competition in the 38th Annual Oakland County Bar Association Race Judicata held on October 8, 2017. Congratulations to Team D&F (Jim O’Brien, Rob Figa, Spencer Mistele and Will Jewell) for bringing home the trophy! The Firm is a proud supporter of this local institution for the eighth year in a row as a premier sponsor of the race.


September 5, 2017 - Congratulations to Jim O’Brien for being named a 2017 Michigan “Super Lawyer” in Environmental Law by Law & Politics Media, Inc. Jim was also chosen to be recognized in the 24th Edition of The Best Lawyers in America for his “high caliber of work in the practice areas of Environmental Law and Environmental Litigation.”


August 2017 - Jim Dworman is scheduled to receive the Pillars of Excellence Award from the Michigan Jewish Sports Foundation at the 33rd Annual Hall of Fame Induction Dinner in September. Jim’s been at home on the basketball court since 1994 – and the football field since 2003 and swimming pool since 2011 – officiating more than 1,000 varsity basketball games, and numerous MHSAA quarterfinal, regional, district and league championship games; state football championships, including two Prep Bowls and three KLAA championship games; as well as water polo matches and district championships. He’s also officiated women’s college basketball, four AAU National Championship tournaments, three Maccabi Games and the Special Olympics. Jim has been an attorney in private practice for 30 years, the last 26 with Dean & Fulkerson, where he serves as president and represents many of Detroit’s top sports broadcasters and writers. He’s also an adjunct professor at Western Michigan University Cooley Law School teaching sports law. Jim organized the Metro Detroit Athletic Officials, the largest MHSAA-approved officials association in the State of Michigan, and writes the law column for Referee magazine.


May 16, 2017 - We are pleased to announce that Thomas P. Christy has joined Dean & Fulkerson as a shareholder. Tom’s practice focuses on business and commercial litigation, real estate litigation, business formation, contracts and business transactions, real estate transactions and agreements, and trademark law.


Set and Forget? A Self-Directed 401(k) Plan Sponsor's Investment Fiduciary Obligations Under ERISA (March 2017)

Janet Lanyon's article on self-directed 401(k) plans was published in the March issue of LACHES, a publication of the Oakland County Bar Association.


On October 18, 2016, the U.S. 10th Circuit Court of Appeals issued its opinion in Fox v Transam Leasing, holding that a carrier violated the FMCSA Truth-In-Leasing regulations when an owner-operator lease agreement assessed a weekly chargeback for use of the carrier’s satellite communications system. Notably, the issue did not involve the satellite communications equipment itself, which the lease made clear the owner-operator was free to obtain either from the carrier or in the market. The violating chargeback instead involved a fee to access the carrier’s communications system with that equipment, regardless of the equipment’s source. For questions, contact the D&F Transportation & Logistics Group.


World Imports bankruptcy case leads to precedential decision regarding maritime liens on cargo (October 2016)

In a precedential decision arising out of the bankruptcy case of World Imports, a furniture wholesaler, the Third Circuit Court of Appeals held that an NVOCC has a maritime lien on cargo for unpaid pre-petition and post-petition freight charges, even if the carrier delivers the cargo or if the parties’ contract has a general lien clause.


Marc Swoish Joins Dean & Fulkerson (September 2016)

We are pleased to announce that Marc Swoish has joined Dean & Fulkerson as a shareholder. Marc’s practice focuses on multifaceted commercial, office and residential real estate transactions including acquisitions, financing, leasing, title actions and project development. He has specific experience in corporate law including formation, mergers and acquisitions, and commercial contracts as well as commercial real estate with focus on drafting, review, and negotiation of real estate development agreements, purchase and sale contracts, and commercial leasing.


DUI Arrest Could Lead to Visa Revocation for Employees in U.S. Even Without a Conviction (August 2016)

Employers should be aware that foreign nationals in the United States on nonimmigrant work visas (such as H-1B, L-1 and O-1 visas) are subject to severe consequences following an arrest for driving under the influence (DUI) or driving while intoxicated (DWI), even when there is no finding of guilt. Per longstanding practice and U.S. Department of State (DOS) regulations, if the DOS discovers derogatory information about an applicant after a visa is issued, it may determine, after an evaluation of the facts, whether it is prudent to revoke the previously issued visa out of concern for public safety. In a shift from previous practice, the DOS has recently begun exercising this discretion in a more stringent manner.

If an employee is arrested or a notification of visa revocation is received, the individual and his or her employer should review their options carefully to maximize their chances of renewing the visa and maintaining or extending nonimmigrant status. If you have any questions, contact Kevin Summers.


Expedited NLRB Union Election (August 2016)

Bob Cleary successfully assisted a national manufacturing company against a recent expedited NLRB Union Election which was held a mere thirty days after the petition was filed. This relatively new election process that went into effect in 2015 was thought to favor unions in NLRB elections by expediting the election process. However, recent data released by the National Labor Relations Board show election results have been averaging about the same percentage union success rate as they did before the rule took effect which is around 64%.

Bob has advised clients in response to union organizing efforts in various states. His efforts include successfully defending against multi-site and multi-state national union organizing campaigns under the new NLRB expedited election rules, as well as designing and implementing preventive strategies for clients to avoid the prospect of a potential union petition for representation.

If you have any questions, contact Bob Cleary.


FMCSA Announces Delay of URS Implementation until 2017. On July 20, 2016, the Federal Motor Carrier Safety Administration (FMCSA) announced that it extended the dates for Unified Registration System (URS) compliance by motor carriers, freight forwarders, brokers and others under FMCSA jurisdiction. The FMCSA will be releasing the URS on January 14, 2017, with a full compliance date of April 14, 2017. URS is a mandatory online filing system that currently applies only to new applicants. This postponement delays the requirement for tens of thousands of existing registrants to use this system. If you have any questions, contact Kevin Summers.


 

Fifth Circuit Dismisses Commercial Driver’s Americans With Disabilities (ADA) Discrimination Claim (July 13, 2016)

In Williams v JB Hunt, filed on June 20, 2016, the U.S. Fifth Circuit Court of Appeals found in favor of J.B. Hunt where it terminated a driver after one doctor rescinded his DOT medical certification for a diagnosis of syncope and ventricular tachycardia. Although the driver received conflicting medical evaluations from different doctors, he never filed an application for the DOT to resolve the conflict pursuant to 49 C.F.R. §391.47. After his termination, the driver filed a lawsuit alleging that he was terminated in violation of the ADA. The federal district court dismissed the case based on the driver’s failure to exhaust administrative remedies. On appeal, the Fifth Circuit held that to prove an ADA violation, plaintiff must make out a prima facie case of discrimination by showing: (1) plaintiff has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment action. The Fifth Circuit Court affirmed the lower court, but not for lack of subject matter jurisdiction. Instead, the Court affirmed on alternative grounds, concluding that the driver failed to establish that he was qualified for the job in question. If you have any questions about this case, contact Kevin Summers.


Persuader Rule (April 1, 2016)

The Department of Labor published its controversial new Persuader Rule, which will take effect on July 1, 2016. The DOL says the rule is needed to level the playing field between employers and employees during unionizing activities. The Rule requires that employers and the consultants they hire file reports not only for direct persuader activities (consultants talking to workers) but also for indirect persuader activities (consultants scripting what managers and supervisors say to workers). This Rule does not prohibit employers from hiring consultants, but it does require that employers report the source of campaign material and disclose expenditures on labor-management activities.

Not surprisingly, several business groups have seen fit to challenge the imposition of the new Rule by suing the Department of Labor, claiming the Rule violates employers’ First Amendment rights and due process under the Fifth Amendment by restricting employers’ ability to educate and inform their employees.

Stay tuned – the last word is yet to come. Contact Bob Cleary for additional information.


FAST ACT Update (February 25, 2016)

On the heels of the Fixing America’s Surface Transportation Act’s (FAST ACT) December 4, 2015 signing by President Obama, the Federal Highway Administration issued a February 24, 2016 Memorandum discussing various provisions of the legislation, including size and weight restrictions for carriers operating on the interstate system. Click here to download and read a copy of the FHWA Memo. For more information, contact D&F’s Transportation and Logistics Law Group.