The Importance of a Well-Drafted Non-Compete Agreement, Part 2

Breeda O’Leary-Brassfield, esq.

A recent Michigan Court of Appeals decision highlights our recent articles on the importance of a well-drafted non-compete agreement for your business. Generally, these agreements not to compete are enforceable when they protect the employer’s reasonable competitive business interests and are reasonable in duration, geographical scope, and line of business.

However, in September 2014, the Court of Appeals struck down a non-compete clause that prohibited the former employee from working for any company that “makes or sells any products competitive with a product offered by the company.”  While this may sound like typical language in a non-compete clause, the Michigan Court of Appeals determined it to be overly broad and unenforceable.

In that case (Huron Technology Corp v Albert Sparling), Defendant was a former employee of Plaintiff who resigned to go work for another company.  Both companies manufactured and sold “material handling equipment” (i.e. conveyor equipment).  Plaintiff argued that Defendant violated his two year non-compete clause by working for a competitor within that time frame.

The court held that the non-compete was unenforceable because it prohibited Defendant from working for any company that offers even a single product that is “competitive” with a product offered by Plaintiff.  This prohibited Defendant from working for any company that is even in remote competition with Plaintiff, and was therefore unreasonably restrictive.

This case demonstrates how imperative it is to carefully draft contract language in non-compete agreements.  The language in this case is similar to what is commonly used by businesses who do not seek the advice of experienced legal counsel. Seeking the advice of experienced counsel will help ensure that the courts will enforce your non-compete agreement.  

If you own a business and are concerned about protecting your interests, contact me, Breeda O’Leary-Brassfield, at 248.380.0000 ext. 3221, boleary@fb-firm.com, or online at www.fb-firm.com.  

New Drinking While Boating Laws in Place for Michiganders in 2015

Mark J. Mandell, Esq.

As we approach summertime and warmer weather, Michiganders will soon flock to their cottages and their boats. Michigan actually has one of the highest rates of boat ownership per capita in the nation.

And this year, tougher laws are in place for “Boating Under the Influence” (BUI).

Last year, boaters could operate a watercraft with a BAC of 0.10. However, with legislation passed and signed into law in last year’s lame-duck session, the new BAC limit on the water will mirror the 0.08 BAC limit on the roads.

The other changes include:

• Prohibiting a person from operating a motorboat with any amount of controlled substance in their body.
• Prohibiting a person under 21 years of age to operate a motorboat with any bodily alcohol content.
• Increased penalties for alcohol and controlled substance violations if a person younger than 16 years of age is also in the motorboat.

Penalties were formerly lighter on the water as well. However, boaters who violate these laws on the water will also face stricter penalties, similar to those drivers face on the roads.

And have you ever stopped to think, “Is it really legal to drink while driving a boat?” If you’ve been a spectator at Jobbie Nooner at Lake St. Clair, MI, surely this thought might have crossed your mind at some point.

The short answer is, yes. It is lawful to drive a boat with an open container of alcohol. But you have to be careful not to cross the line, especially with these stricter laws. When you’re out in the sun all day, just a few drinks could get you to that 0.08 threshold quickly if you don’t hydrate with water. And just like on the roads, there’s implied consent on the water.

Under implied consent on the water, when you get behind the wheel of a boat you are considered to have consented to a BAC test. Even if you don’t take a breathalyzer test, you can still be detained and taken back to shore if you appear to be disorientated, confused, smell of alcohol, or were driving recklessly.

It’s also important to note that these laws not only apply to boats. Jet skis, kayaks, canoes, and any other type of water craft that can be used for transportation fall within the reach of these laws.

It is also unlawful for the owner of a vessel to allow anyone else to operate their vessel if that person is under the influence of alcohol or drugs.

So if you and your family head out on the water this summer, as many Michigan families do, boat safely and drink responsibly. A few Corona and limes on a nice summer day could get you into more trouble than you think if you’re not careful. 

“Estate Planning 2.0:” Who controls your digital assets after your death?

Donald L. Knapp, Jr.

The term “Web 2.0” has become a popular buzzword around the Internet and many digital innovations over the past decade. Web 2.0 has allowed the creation of more “digital assets” – including your Facebook and Twitter pages, blogs, and even your online brokerage account and credit card travel miles. These digital assets can be personal or business in nature.

However, the law has lagged behind the technology in this arena. There has been a rush to create social media accounts and set-up online banking and brokerage accounts – but who controls all those digital assets after you die? Do you have an “Estate Planning 2.0” strategy to fit the Web 2.0 world?

Your digital assets are becoming one of the more important – and are certainly one of the most overlooked – components of an estate plan. While it is obvious that everyone has physical assets (home, car, personal possessions, etc.), most people today have digital assets as well.  And until state and federal laws catch up with technology, your best bet to protect these possessions is through well-drafted provisions in an estate plan.

According to a recent survey conducted by McAfee, people place an average value on their digital assets of $35,000, around half of which is attributed to “sentimental” value, like your photos stored online. That amount likely does not include the value in your online brokerage accounts, if you have any. Whatever value you place on your digital assets, it is important to have a plan in place for them if you become incapacitated or pass away.

When drafting estate planning documents, such as a durable power of attorney, will, or trust, it is important to include provisions that authorize your designated representative to access these digital assets. Such provisions should also explicitly define the scope of the representative’s authority and clearly state your intentions for those digital assets once you pass away.

Because this area of the law is new and still evolving, there are limited cases interpreting such provisions. However, drafting clear provisions addressing your digital assets will provide you with additional peace of mind.

If you are in need of estate planning help, contact the experienced attorneys at Fausone Bohn, LLP in Northville, MI. You can reach us at 248-468-4536 or online at www.fb-firm.com. Our legal experts are knowledgeable about changing laws and stay up to date on this evolving area to ensure you receive the best protection for your assets.

The most recent legislation proposed on this issue was in Florida. You can read more about what lawmakers there are doing in an attempt to secure individuals digital assets after death: http://www.wtsp.com/story/news/politics/florida/2015/04/06/bill-lets-guardian-access-digital-assets-after-death/25361635/. 

MDEQ Issues Permit Change to Further Limit CAFO Winter Manure Spreading

Paul F. Bohn, Esq.

The Michigan Department of Environmental Quality (MDEQ) announced a change to its permits for large farms as part of the state’s efforts to better protect Michigan waters from agricultural runoff. Confined Animal Feeding Operations (CAFO) were already limited in when and where they could spread manure, but the permit change applies those limits to operations receiving that manure as well.

We have written previously on Ohio’s efforts to combat the “harmful algae blooms” plaguing Lake Erie, and this effort by MDEQ is certainly part of Michigan’s response to protect Lake Erie.

CAFOs are not allowed to spread manure on frozen or snow-covered grounds except under very strict, limited circumstances, but they were previously allowed to transfer their excess manure to other operations not specifically prohibited from “winter spreading.”

Now, large farms are not permitted to transfer their farm waste to other operations from January through March unless the recipient follows the winter spreading standards. Witnesses at the hearings on the CAFO permit renewal said that the transferred manure, which was spread onto the recipients’ lands, was running into streams and drains as the snow was melting during the spring thaw. 

“The change is expected to further minimize incidents of farm runoff to surface waters during spring melts, and will safeguard Michigan's valuable water resources while providing a reasonable regulatory framework for farmers," said MDEQ in a press release.

This permit change has been in the works since December of last year, and a public hearing was held in January. The final product includes revisions based on public comment. Both the permit and the summary on public comments can be viewed on MDEQ’s website here:

http://www.michigan.gov/deq/0,1607,7-135-3313_3682_3713-96774--,00.html

Paul Bohn, partner at Fausone Bohn, LLP, has established a strong reputation in Michigan as a leading practitioner in environmental law. Mr. Bohn has been selected as a Michigan Super Lawyer since 2010 and was named one of the Top Attorneys in Michigan in 2014 by Crain’s Detroit Business. The team at Fausone Bohn, LLP has extensive experience dealing with MDEQ matters. If you need consultation, don’t hesitate to contact us at (248) 468-4536 or online at www.fb-firm.com. 

VFW, DAV File Joint Lawsuit Against the VA

The Veterans of Foreign Wars (VFW) and the Disabled American Veterans (DAV) filed a join lawsuit on May 6 against the VA to force it to change its submission procedure for new claims. The procedure, says the VFW, was created solely to benefit the VA and not veterans.

The primary issue is that the VA eliminated the informal claims process, according to William Bradshaw, VFW’s director of National Veterans Service. Previously, any form of written communication would have served notice on the VA that within one year the veteran would be filing a claim for disability compensation.

In March, the procedure changed to require all veterans to use standardized forms, which complicates the process for veterans, many of whom don’t have access to computers to get the forms. Therefore, this delay essentially postpones the effective date and denies compensation to veterans.

“The VFW doesn’t oppose the use of standardized forms,” said Bradshaw. “Our opposition is to this all or nothing approach that VA is forcing on veterans — changes, that if left in place, will guarantee in this year alone that tens of thousands of service-connected wounded, ill and injured veterans will be denied benefits they were entitled to before the change became effective.”

This change in procedure has been in the VA pipeline since October 2013, at which time the VFW and DAV fought against the proposed change. Now, with it in effect, the two organizations have teamed up again, this time to file a joint lawsuit against the VA.

There appears to be no reason given as to why the VA couldn’t accept both informal claims and the standardized forms. The lawsuit alleges that the elimination of informal claims unduly harms veterans and reduces veterans benefits, which is unlawful as it goes against the “non-adversarial, pro-veteran principles upon which the veterans benefits system is built.”  

You can read the full lawsuit complaint here:

http://www.vfw.org/uploadedFiles/VFWorg/News_and_Events/Articles/2015_Articles/VFWPetitionforReview2015.pdf

At Legal Help For Veterans, PLLC, we focus exclusively on veterans’ rights. If you are a veteran looking to get the benefits that you deserve, call us today at 1-800-693-4800. We handle a variety of claims for service-connected injuries. www.LegalHelpForVeterans.com

Flint Mayoral Candidates Miss the Deadline, "Giggles the Pig" Launches Write-in

We’ve all heard the saying "When pigs fly!" – but what about when pigs run for office? The candidates in Flint’s mayoral race all missed the filing deadline, which has resulted in an all write-in candidate field, including a “Giggles the Pig.” Moral of the story: if you’re thinking about running for office, make sure you know the state laws and deadlines around filing and campaign finance procedure.

Read more on this story on Michigan Radio’s website:

http://michiganradio.org/post/pet-pig-latest-candidate-flints-bizarre-mayors-race

Law Enforcement & the Veteran Population: Safe & Effective Interaction

As City Prosecutors and Municipal Attorneys who also work with Veterans, we highly recommend attending this event if you are a law enforcement officer, prosecutor, or court personnel in SE Michigan. Check out this flyer for more details on this FREE event that promotes safe and effective interaction between law enforcement, court personnel, and our veteran population - May 12 & 13, 9 am - 1 pm with lunch included!