Res Ipsa sept v5b · 9/9/2017 · 2 2017 6 March/April 2017 Thank you Silent Auction Donors! 100%...

Res Ipsa September/October 2017 1 March/April 2017 6

Thank you Silent Auction Donors!

100% of the auction proceeds benefited theWashtenaw County Bar Association Law

& Justice Fund.

Auction DonorsAnn Arbor Symphony Orchestra

Best Way Carpet CleaningChuck E. Cheese’s

Eagle Crest Golf ClubEdible Arrangements

Goodrich Theater ‐ Quality 16Haab’sKilwinsKnight’s

Michigan TheaterMOVE Fitness & Wellness

Paesano’sRelaxStation Massage

Sally RutzkySiri Gottlieb

The ArkWCBA Board of Directors

We hope you will patronize these businesses and thank individuals

for their support!

2ND ANNUAL TRIVIA NIGHT AND SILENT AUCTION

PHOTOS COURTESY OF THE WASHTENAW COUNTY LEGAL NEWS

March/April 2017Volume 46, Number 2

Published by theWashtenaw County Bar Association

Please visit our website at www.washbar.org

In This Issue . . . Committing to Change: Revisions to the ALTA Commitment for Title Insurance . . .4

President’s Message . . . . . . . . . . . . . . . . . . . .5

Finding a Voice, Making a Difference . . . . . . .9

Across the Great Divide . . . . . . . . . . . . . . . . .11

Tips for the Virtual Lawyer . . . . . . . . . . . . . .13

Circular 230 and IRS Standards for Providing Tax Advice to Clients . . . . . . . .15

The 2nd Annual Trivia Night Event was held at the Zal GazGrotto Club on February 23rd. The event was a huge

success! Camaraderie, delicious food, generousdonations and interesting trivia questions ruled the night.Cate and Doug McClure made a very generous donationfor the Philanthropy Trophy. All proceeds from the Silent

Auction went to the WCBA’s Law and Justice Fund.

Additional photos from this event are available at www.washbar.org in our photo gallery.

www.washbar.org


WCBA Trivia Night &Silent Auction

March/April 2017Volume 46, Number 2

Published by theWashtenaw County Bar Association


In This Issue . . . Committing to Change: Reeevisions tothe ALTLTLTLTLTATATAA Commitment for Title Insurance . . .4

President’s Message . . . . . . . . . . . . . . . . . . . .5

Finding a Voice, Making a Difffference . . . . . . .9

Across the Great Divide . . . . . . . . . . . . . . . . .11

Tips for the Virtual Lawyer . . . . . . . . . . . . . .13

Circular 230 and IRS Standardsfor Providing TaTaTaTaTaTaTax Advice to Clients . . . . . . . .15

In This Issue....

Sovereign Immunity against Copyright Infringement

Causes of Actions since the Supreme Court’s Florida

Prepaid Decision .................................................. 6

Federal Taxation of Marijuana Businesses .............14

Life on Two Wheels: A brief discussion of the

rise of cycling and Michigan’s cycling laws ........... 16

September/October 2017 Volume 46, Number 5

Published by the Washtenaw County Bar Associati on


COURTESY PHOTOS

The team of Isaac Snead, Mark Bruggeman, Mark Daane and Ben Muth (pictured above) won the scramble with a 15 under par score. The outi ng was held on August 11th at Lake Forest Golf Club. Kate Sharkey, Julie Dunbar and Barbara Kramer (pictured above) parti cipated in the golf clinic.

Pleaseseepages18-19foroursponsorlistandadditionalphotos. Photos are also available in the photo gallery at www.washbar.org

WCBA Annual Golf Scramble and Golf Clinic

www.washbar.org

2 Res Ipsa September/October 2017March/April 20176



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March/April 201710

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3Res Ipsa Loquitur

Volume 46, Number 2 March/April 2017

FeaturesCommitting to Change: Revisions to the ALTA Commitment for Title Insurance . . . . .4Finding a Voice, Making a Difference . . . . . . . . .9Across the Great Divide . . . . . . . . . . . . . . . . . .11Tips for the Virtual Lawyer . . . . . . . . . . . . . . . .13Circular 230 and IRS Standards for Providing Tax Advice to Clients . . . . . . . . . .15

DepartmentsPresident’s Message . . . . . . . . . . . . . . . . . . . . . . . . . . 5Asked & Answered . . . . . . . . . . . . . . . . . . . . . . . . . . . .7New Members & Changes . . . . . . . . . . . . . . . . . . . . . . 8Classifieds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Advertiser IndexAlex Milshteyn Real Estate Associates . . . . . . . . . . . . .10Andrews Hooper Pavlik PLC (formerly Miller & Associates, P.C.) . . . . . . . . . . . . . . . . 2Bell Tower Hotel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Law & Mediation Office of Veronique Liem . . . . . . . . .14Washtenaw County Treasurer Office . . . . . . . . . . . . . .12Weber’s Inn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Yeo & Yeo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Officers and Directors of the Bar AssociationElizabeth A. Kitchen-Troop

PresidentK. Orlando Simón

President ElectElizabeth C. Jolliffe

Vice PresidentMark W. Jane

TreasurerPaul C. Fessler

SecretaryGregory L. Dodd

Immediate Past PresidentSamuel J. Bernstein & Alexander W. Hermanowski

Co-Presidents, New Lawyers SectionJustin M. Altman, Katherine M. Sharkey, Rebecca E. Shiemke,& W. Daniel Troyka

Directors at LargeKyeena Slater

Executive Director

Local Members of the State Bar of MichiganBoard of Commissioners

Andrew F. Fink, III - Commissioner at LargeMark W. Jane – Young Lawyers Section ChairErane C. Washington - District G

Local Members of the State Bar of MichiganRepresentative Assembly - 22nd Circuit

Peter M. FalkensteinElizabeth C. JolliffeAshish S. JoshiElizabeth A. Kitchen-Troop

Res Ipsa EditorTeresa Killeen

Official NoticeItems for publication and questions concerning editorial content should be di-rected to the Editor, Teresa Killeen, WCBA, 101 E. Huron, P.O. Box 8645, AnnArbor, MI 48107, [email protected] Inquiries concerning advertisingshould be directed to Kyeena G. Slater, Executive Director, 101 E. Huron, 1stFloor, P.O. Box 8645, Ann Arbor, MI 48107, Phone: 734-994-4912, fax 734-663-2430, email: [email protected] magazine Res Ipsa Loquitur is published bi-monthly by the WashtenawCounty Bar Association, 101 E. Huron, 1st Floor, P.O. Box 8645, Ann Arbor,MI 48107. Teresa Killeen, Editor.Articles, letters and advertisements that appear in the Res Ipsa Loquitur do notnecessarily reflect the official opinion of the Washtenaw County Bar Associa-tion unless otherwise stated.Annual dues of $70-$170 include subscriptions of $15.00 for the magazine. POSTMASTER SEND ADDRESS CHANGES TO Res Ipsa Loquitur, WashtenawCounty Bar Association, 160 S. Main St., Brooklyn, MI 49230.

© 2017 Washtenaw County Bar Association. All Rights Reserved.

The Res Ipsa Loquitur is designed by the Brooklyn Printing Company, 160 S. Main St., Brooklyn, MI • 517-592-2122

Email [email protected] for more information.

Volume 46, Number 5 September/October 2017

FeaturesSovereign Immunity against Copyright

Infringement Causes of Actions since the

Supreme Court’s Florida Prepaid Decision ............ 6

Federal Taxation of Marijuana Businesses ............ 14

Life on Two Wheels: A brief discussion of the

rise of cycling and Michigan’s cycling laws ........... 16

DepartmentsPresident’s Message .............................................. 5

Member Notes ...................................................... 8

Asked & Answered ................................................. 9

2017-2018 Elected Board....................................... 10

2017-2018 Board of Directors ................................ 11

2017-2018 Section & Committee Chairs ................. 12

Classifieds ............................................................. 7

Advertiser IndexAlex Milshteyn Real Estate Associates ..................... 2

Andrews Hooper Pavlik PLC .................................... 2

Bell Tower Hotel ..................................................... 20

Weber’s Inn ........................................................... 4

K. Orlando SimónPresident

Elizabeth C. JolliffePresident Elect

Mark W. JaneVice President

Paul C. FesslerTreasurer

Jennifer L. LawrenceSecretary

Elizabeth A. Kitchen-TroopImmediate Past President

Jinan M. Hamood & Alexander W. Hermanowski Co-Presidents,NewLawyersSectionJustin M. Altman, Rosemary Frenza Chudnof, S. Joy Gaines & Nicole E. Mackmiller

Directors at LargeKyeena Slater ExecutiveDirector

www.washbar.org




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2 March/April 2017

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100% of the auction proceeds benefited the

Washtenaw

County Bar Association Law&

Justice Fund.

Auction DonorsAnn Arbor Sym

phony Orchestra

Best Way Carpet Cleaning

Chuck E. Cheese’sEagle Crest Golf ClubEdible Arrangem

entsGoodrich Theater ‐ Q

uality 16Haab’sKilw

insKnight’s

Michigan Theater

MO

VE Fitness & W

ellnessPaesano’s

RelaxStation Massage


The ArkW

CBA Board of Directors

We hope you will patronize these

businesses and thank individualsfor their support!


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to those that continue to support the WCBA by contributing to the WCBA Donations Fund for community service, law library, and technology improvements!

Sarah Dobson Campbell – Bank of Ann Arbor

Douglas R. Coskey

Susan A. Davis – Davis Law, PLC

Ellen Dennis – Law Office of Ellen Dennis

Peter M. Falkenstein – Jaffe, Raitt, Heuer & Weiss, P.C.

Paul C. Fessler – Fessler Law, P.C.

Gregory A. Fisher

Peter C. Flintoft – Keusch, Flintoft & Fink, PLLC

Thomas P. Heed – Heed Law Group, P.L.L.C.

Kendra A. Hollingsworth – Stelmock Law Firm, P.C.

Mark A. Hopper – DeLoof, Hopper, Dever, Wright & Milliman, PLLC

Elizabeth V. Janovic – Wilson P. Tanner, III, PLC

Constance L. Jones

Robert J. Lipnik – Law Office of Cy Weiner

Kymberlie B. London – Hamilton, Judge, Schroer & Steingold, PLC

Lauren M. London – Eastern Michigan University

Nik Lulgjuraj – Nik Lulgjuraj, PLC

Robert I. McCoy – McCoy and Associates, PLLC

Robyn L. McCoy – McCoy and Associates, PLLC

Sarah M. Meinhart – Sarah M. Meinhart, PLLC

John B. Owdziej – Law Office of John B. Owdziej

Jack M. Panitch

Sarah Ryan Schairbaum – Elizabeth Warren, PLLC

Suzanne C. Stephan

David A. Sutherland

Jennifer M. Symanns

Elizabeth Warren – Elizabeth Warren, PLLC

Thank you

www.webersannarbor.com




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5Res Ipsa Loquitur

President’s Message

As I sit down to write my sec‐ond‐to‐last Res Ipsa Presi‐dent’s Message (where did thetime go?!), and look out overmy again snow‐covered lawn,it occurs to me that the prac‐tice of law is a bit like theweather in Michigan. Younever know what to expectfrom day‐to‐day. Last week‐

end, it was in the high 60’s and sunny. I was able to spendthe entire weekend outside with my kids, soaking up the sunand fresh air. This weekend, it is cold and grey and snowy(and the kids are bouncing off the walls). In the law, like theweather, no one day is like the next. Every client presentsnew and interesting challenges with varied fact patterns andunique legal issues. Add to that a mix of personalities andoft‐present mental health issues, and you have a career thatkeeps you on your toes.

Despite being only a couple of months into the new year,2017 has brought a lot of changes. Those changes have en‐gaged attorneys across the country as we attempt to adviseand provide guidance related to the many executive orderswe have seen from the White House. In a rather refreshingturn‐of‐events, public perception of attorneys seems to haveimproved as we see attorneys spending their nights andweekends (and, for many, days) flocking to airports to pro‐vide legal advice to immigrants arriving to the United Statesfrom one of the seven banned countries. While I don’t ex‐pect this new‐found public perception shift to sustain, rightnow it is heartening to see what we all know: Lawyers arehelpers.

The New Year has also offered a number of entertaining andengaging activities for members of the Washtenaw CountyBar Association. On January 19, 2017, the Family Law & NewLawyers Sections hosted a joint ‘Meet and Greet’ Event atConor O’Neill’s, allowing attorneys to mingle with the Washt‐enaw County family court bench, including the HonorableArchie Brown, the Honorable Patrick Conlin, Jr., and the Hon‐orable Darlene O’Brien. This was a very well attended eventand served as a nice opportunity to network with judges andother attorneys. Thanks to Jessica Pospiech, Parisa Ghazaeri,Sam Bernstein and Alex Hermanowski for putting togetherthis fun event.

On February 23, 2017, the WCBA hosted the 2nd AnnualTrivia Night and Silent Auction at Zal Gaz Grotto. This hasquickly become one of my favorite WCBA events as it allowsour membership to kick‐back and show off their varied anduseless knowledge, and have some laughs while doing it.This year, the Simon Says team (comprised of the Honorable

Patrick Conlin, Jr., Kelly Roberts, John Reiser, John Kline, Or‐lando Simón, Ashwin Patel, Frank Weir, Tom Bourque, JoyGaines and Kathleen Brown) clinched the win with their cor‐rect answer to the query about Elizabeth Taylor’s last role ina major motion picture prior to her death (1994’s “Flint‐stones,” for those interested). Like last year, there were anumber of great items to bid on in the silent auction.Thanks again to Jennifer Lawrence for organizing the silentauction. The funds were donated to the Ann Arbor AreaCommunity Foundation WCBA Law and Justice Fund. Thisyear’s Philanthropy Trophy was awarded to Cate and DougMcClure for their very generous donation—thanks Cate andDoug!

In March, the Washtenaw County Big Brothers Big SistersBowl for Kids’ Sake event will take place at Revel and Roll.The proceeds from this event will support the Big BrothersBig Sisters program in Washtenaw County and $70 of the$80 registration expense is tax deductible! Double bonus!Please contact Kyeena Slater if you are interested in partici‐pating in this great event.

On April 13, 2017 we will hold our Annual Award Dinner andElection at the Ann Arbor City Club. Please join us as wehonor the Washtenaw Association for Community Advocacyas they receive the WCBA Liberty Bell Award for their effortsin promoting a better understanding of our Constitution andBill of Rights; encouraging greater respect for law and thecourts; stimulating a deeper sense of individual responsibil‐ity so that citizens recognize their duties as well as theirrights; contributing to the effective functioning of our insti‐tutions of government; and fostering a better understandingand appreciation of the rule of law. We will also swear in theupcoming 2017/2018 board members and hear from our in‐coming President Orlando Simón.

Finally, on May 5th we will hold the annual Bench‐Bar Eventat Travis Pointe Country Club. In addition to hearing fromour local bench, we will also hear from our distinguishedspeakers Michigan Supreme Court Justices Bridget McCor‐mack and Joan Larsen. This promises to be a well‐attendedevent, as always, so please be sure to RSVP early and contactKyeena Slater for sponsorship opportunities.

Until next time, my friends.

Elizabeth Elizabeth Kitchen-Troop

[email protected]

Happy Autumn! With the Autumnal Equinox upon us we are blessed with those beautiful Michigan Fall days that can feel like summer, and also hint at what is to come. The days shorten; the wind feels a little more brisk; and the light begins to change. And like the natural world, this season finds us changing our professional and personal gears as well. The

pace for workplaces picks up; schools are back in session; life becomes somehow more serious, and more hectic. For those of us who are in the courthouses regularly we expect the dockets to increase and we plan accordingly. And for those of us involved in transactional and research work, the lists get longer.

So, in the spirit of rolling up our sleeves and diving into the autumnal tasks at hand, our Bar is doing the same. For the Fall President’s Message, I am highlighting a few important events including Constitution Day on September 15th, a WCBA/WLAM Tailgate Breakfast on September 16th, the SBM NEXT Conference held September 27th through 29th, the WCBA Bias Awareness Strolling Reception and MLK, Jr. Award on October 19th, and a Fall Bike Ride invitation.

I cannot say enough about getting involved with Constitution Day. This is a one day opportunity to take some time to get out into the community -- in particular, the schools. Given the dearth of venues for learning about civics, it is more important than ever that we in the legal community fill that void. The Constitution Day program that has evolved in Washtenaw County was spearheaded by our own Lori Buiteweg as a WCBA Public Service and Pro Bono Committee project and has now grown to become a model for other counties and bar associations. In a nutshell, we have partnered with the Ann Arbor Public Schools to send Lawyer Volunteers to 6th, 7th and 8th grade classes (and now some 11th grade classes) with a developed program on the US Constitution. Each grade has a different focus (for example, the 7th grade does a unit on the 1st Amendment), and we essentially get a chance to “teach” about the importance and relevancy of the Constitution. I personally find the students eager to engage, and the teachers are very appreciative to have us in the classrooms.

Right on the heels of Constitution Day we had another great event that is fast becoming an annual tradition: The WCBA/WLAM UM Football Tailgate Party. For the past few years, Elizabeth Jolliffe has opened her home to host a UM Football Tailgate. This year’s tailgate was Saturday, September 16th. Elizabeth’s house is within a short walk of the stadium. This is a great opportunity to socialize with fellow WCBA and WLAM members, and it’s a family friendly event as well. Not only is it a fun group, but the food is fantastic too!

This year’s State Bar of Michigan Annual Meeting will be held in Detroit September 27th through September 29th. The SBM is retooling its annual meeting along with the Solo & Small Firm Institute as the SBM NEXT Conference with a focus on the future of practicing law in Michigan. In addition to the governance role of the annual meeting, the NEXT Conference offers the ability for attorneys to customize their conference experience and choose workshops most relevant to practice and individual concerns. As an added bonus for the WCBA, it is just down the road at the Cobo Center in Detroit. Check it out in more detail and consider going to all or part. http://connect.michbar.org/events/event-description?CalendarEventKey=12f5e1a7-0e43-42fd-ba3f-87cc3d4e2e28&Home=%2Fevents%2Fcalendar

As we slide into October, football and falling leaves take over, the days get a little shorter and the air a little cooler. The WCBA turns its focus on our Bias Awareness Event. This year we have a wonderful evening planned on October 19th starting at 5:30pm. We will be hosting a Strolling Reception at Weber’s Inn. We are honored to have Kary Moss, Executive Director of the ACLU of Michigan give the keynote address, which will be followed by the presentation of this year’s MLK, Jr. “I Have a Dream” Award to Kim Moore. Given the uncertainty of the current political climate (new executive orders regarding non-citizen immigration status, continuing lethal police-citizen encounters, the recent rally in Charlottesville, VA), the work of our local bar in promoting Bias Awareness takes on greater importance, and, as lawyers we should make sure we are prepared in our sworn duty to uphold the Constitutions of both the United States and the great State of Michigan. I look forward to seeing you all at our event.

Finally, I leave you with an invitation to join me in the first of a series of informal gatherings for WCBA members and their families. In the spirit of promoting both physical and mental health, I will be leading a fall bicycle ride. Pencil Saturday, September 30th in your calendars; details on departure time will follow in an email. We will gather somewhere on the north side of downtown Ann Arbor and head west at a leisurely pace to the Dexter Cider Mill along the beautiful Huron River. UM Football will be having a bye week on that Saturday and the leaves should be in full color! Until next issue, enjoy the season.

K. Orlando SimónK. Orlando Simón

[email protected]

Thank you

http://connect.michbar.org/events/event-description?CalendarEventKey=12f5e1a7-0e43-42fd-ba3f-87cc3d4e2e28&Home=%2Fevents%2Fcalendar

mailto:[email protected]




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Thomas P.Heed

In 1999, the Rehnquist Court, in a decision characterizedasfederalistjudicialactivism1, ruled that Congress lacked the power underArticleIoftheU.S.Constitutiontoabrogate state sovereign immunity. Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank,527U.S.627,634(1999).Since Florida Prepaid, Courts have found thattheCopyrightRemedyClarificationAct2(CRCA)isineffectiveinabrogatingstates’ sovereign immunity, making states

immune from copyright infringement lawsuits. Chavez v. Arte Publico Press,204F.3d.601(5thCir.2000).TheStateofMichiganhassuccessfullyinvokedsovereignimmunity,under the Eleventh Amendment, as a defense to a copyrightinfringementcauseofaction,atleastthreetimes.See e.g., Wolf v. Oakland University, 15-cv-13560,2016WL7048812(E.D.Mich.Dec.5,2016); Reiner v. Saginaw Valley State University et. al., CivilActionNo.2:2016-cv-11728(E.D.Mich.May16,2016);Parker v. Dufresne, Civil ActionNo.3:09-cv-01859,2010WL2671578(W.D.La.May18,2010)(copyrightinfringementcauseofactionagainstGrandValleyState).

Statesandothergovernmentalentitiesarepushingtheenvelopetoseehowfarthecourtswillgoingrantingsovereignimmunity.Forexample,inatleastthreeinstances,theLosAngelesUnifiedSchoolDistricthasbeen allowed to invoke the State of California’s sovereign immunity in defense of a copyright infringement cause ofaction.See e.g., Rachlin Architects Incorporated v. Los Angeles Unified School District et al,CivilActionNo.2:2004-cv-06670(C.D.Cal.2005);John T Fodor et al v. Los Angeles Unified School District et. al., CivilActionNo.2:2012-cv-08090(C.D.Cal.2014);andMobile Active Defense, Inc. v. Los Angeles Unified School District et. al., CivilActionNo.2:2015-cv-08762,2016WL7444876(C.D.Cal.2016).Ineachofthesecases,theDistrictCourtheldthattheLosAngelesUnifiedSchoolDistrictwasentitledto the defense of sovereign immunity, because California school districts are funded by the state. Id. The State of MichigansharesthisfundingmethodwiththeStateofCalifornia,potentiallyallowingforschooldistrictsacrossthe state to claim sovereign immunity from copyright infringementcausesofaction.

ThecurrentjurisprudenceoftheSupremeCourtleavesaggrievedplaintiffslimitedfederalcourtrecoursewithrespect to copyright infringement if a state or its employeesaretheinfringer.Theavailableavenuesare(1)asserting

thattheCRCAisavalidabrogationofstatesovereignimmunity;(2)assertingthattheinfringementisactuallya taking and is therefore protected under the Takings Clause3oftheConstitution;or(3)assertingthatsovereignimmunity is not an allowable defense in light of the United States’obligationsunderseveralcopyrighttreaties.4

ManyhavetriedtoassertthattheCRCAisavalidabrogationofstatesovereignimmunity5, but so far all havefailed.SomepractitionersbelievethatacourtwilleventuallyupholdtheCRCAunderthe14th Amendment, because of the growing volume of copyright infringement cases in which states have successfully invoked sovereign immunity.UndertheTakingsClause,aplaintiffcouldassert that uncompensated copyright infringement from astateactoramountstoataking.Thereisverylittlecaselawaddressingthistheory,butthelittlethatexistsseemsto suggest that this may be a valid argument.6 In dicta in the Florida Prepaidcase,theCourtnoted,“astateactor’snegligentactcausingunintendedinjurytoaperson’spropertydoesnot‘deprive’thatpersonofproperty…,”suggestingthatanintentionalactionmaydepriveapersonofproperty.See,527U.S.,at628.WithrespecttoassertingthattheUnitedStates’treatyobligationsprohibitthe use of sovereign immunity in a copyright infringement lawsuit,thereisnodiscernablecaselaw,eithersupportingor opposing such an argument.

As for the Courts reasoning in Florida Prepaid, the Court held that the Eleventh Amendment7“hastwoparts:first,thateachStateisasovereignentityinourfederalsystem; and second, that ‘[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual withoutitsconsent.’”527U.S.,at634.TheCourt’spreviousrulingshadmade“clearthatCongressmaynotabrogatestatesovereignimmunitypursuanttoitsArticleIpowers; hence the Patent Remedy Act cannot be sustained undereithertheCommerceClauseorthePatentClause.”Id. at636(citingSeminole Tribe of Fla. v. Florida,517U.S.44(1996)). Notwithstanding Florida Prepaid,in2006,theCourtheldthatCongress’ArticleIpowersweresufficientto abrogate sovereign immunity with respect to bankruptcy laws. Cent. Virginia Cmty. Coll. v. Katz,546U.S.356,375(2006).

Sovereign Immunity against Copyright Infringement Causes of Actions

since the Supreme Court’s Florida Prepaid Decision

1 Louise Weinberg, �is Activist Court, 1 Geo. J.L. & Pub. Pol’y 111, 111 (2002). 2 17 U.S.C. §511(a)3 U.S. Const. Am. V (“…nor shall private property be taken for public use,

without just compensation.”)4 See, e.g., Berne Convention for the Protection of Literary and Artistic Works

(Paris 1971); and Trade Related Aspects of Intellectual Property Rights Agreement (“TRIPs”) (Uruguay 1994) (negotiated as part of the General Agreement on Tari�s and Trade (“GATT”)).




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5 �ere are currently in excess of 125 reported and unreported cases in which there was a meritorious plainti� claiming infringement by a state actor, in which the state asserted that it enjoyed sovereign immunity.

6 See, e.g., Cawley v. Swearer, 936 F.2d 572, 1991 WL 108725 *3 (6th Cir. 1991, unpublished disposition) (“But the Copyright Act does not preempt the Fi�h Amendment’s Takings Clause. Cf. Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir.), cert. denied, 464 U.S. 961 (1983) (an interest in a copyright is a property interest protected by the Fi�h Amendment); Lane v. First National Bank of Boston, 871 F.2d 166, 174 (1st Cir.1988) (suggesting that a state which infringes a copyright could be liable under the Takings Clause).”)

7 U.S. Const. Am. XI (“�e Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”)

�omas Heed has been a member of the Michigan Bar and a registered patent attorney with the United States Patent and Trademark O�ce, since 2004. He is a solo practitioner in Washtenaw County, concentrating on intellectual property and business law matters. He provides transactional legal assistance for patent, trademark and copyright applications and prosecutions. Mr. Heed also litigates copyright and trademark cases, with matters currently before the Eastern District of Michigan, Eastern District of Texas, and the Southern District of New York. He can be reached at [email protected]

January/February 20174

In May of 2016, the United States SupremeCourt decided the case of Husky Interna‐tional Electronics, Inc. v. Ritz, 136 S.Ct.1581; 194 L.Ed. 2nd 655 (2016). This caseresolved a split in the Circuit Courts regard‐ing whether a false representation is neces‐sary for a debt to be determinednon‐dischargeable pursuant to 11 U.S.C.§523(a)(2)(A). The court held that a fraudu‐lent conveyance scheme constitutes “actualfraud” even where there is no false repre‐sentation.

In Husky v. Ritz, the facts were fairlysimple. The debtor, Ritz, was a primaryowner of a business, Chrysalis Manufactur‐

ing Corp., which incurred a debt of approximately $164,000.00to Husky. The debtor then transferred significant Chrysalis as‐sets to other businesses he owned. As a result, Husky was un‐able to collect its debt from Chrysalis Manufacturing. UnderTexas law, Ritz was personally liable for the debt. The transferof the business assets to other businesses constituted fraudu‐lent conveyances in Texas.

11 U.S.C. §523(a)(2)(A) provides that debts are not discharge‐able where they are incurred by false pretenses, a false repre‐sentation, or actual fraud. In Husky, the transfers were madeafter the obligation was incurred, therefore Chrysalis did notmake misrepresentations to Husky prior to incurring the obliga‐tion. The Supreme Court held that a fraudulent conveyancescheme constituted fraud at common law. 1 The use of theword “actual” in §523(a)(2)(A) describes acts which are donewith bad faith or wrongful intent. This definition would permitdischarge of obligations based on “implied fraud” or “fraud atlaw.”

For debtors this holding means that acts done after becomingobligated to a creditor can become controlling in determiningwhether a debt may be discharged in bankruptcy. This problemmost likely will arise when a creditor obtains a judgment againsta debtor. In that situation, the debtor must be conscious oftheir actions after the judgment is granted. Any effort to delayor hinder the collection of the debt (other than the filing of abankruptcy case itself) could be used by the creditor to seeknondischargeability of the obligation.

For the debtor’s attorney, particular care must be taken re‐garding any actions their client takes that may be deemed an in‐tent to hinder or delay a creditor. Situations where a clienttransfers property to another, but retains it; transfers propertyfor little or no value (particularly to an insider); or secret trans‐fers all pose a risk to the client’s ability to discharge an obliga‐tion. Certainly, these inquiries are always made in thebankruptcy context. The transferee may lose the item they re‐ceived (or its value), and the debtor may continue to be obli‐gated on an underlying debt. Debtor’s counsel must informtheir client of this possibility.

The Husky decision also provides new avenues for creditors.Creditor attorneys should look more closely at the debtor’s con‐duct ‐ particularly where their client has a judgment against the

debtor. This analysis is warranted even in normal credit trans‐actions. If the debtor has taken efforts to hide assets or other‐wise hinder the creditor, the bankruptcy code may not affordthe debtor relief. In these situations, an Adversary Proceeding2

may provide the creditor with a judgment of nondischargeabil‐ity.

Husky v. Ritz makes clear that a misrepresentation is not re‐quired to have a debt determined to be nondischargeable pur‐suant to 11 U.S.C. §523(a)(2)(A). A fraudulent scheme donewith the intent to hinder or delay a creditor is non‐discharge‐able under the bankruptcy code. Care should be taken by bothdebtor and creditor attorneys in their advice to their clients.

1 Statute of 13 Elizabeth, enacted in 1571, covered fraudulentconveyances where the intent was to delay or hinder creditors.2 Adversary Proceedings are required in this circuit to determinethe dischargeability of obligations based on 11 U.S.C.§523(2),(4) and (6).

Jeffrey Bennett primarily represents debtors in Chapter 7, 11,and 13 cases. He also practices in the areas of family law, pro‐bate, estate planning, criminal defense, and civil litigation. Hisoffices are located in Ann Arbor, and he can be reached [email protected].

NEW PITFALL FOR DEBTORS IN BANKRUPTCY:ACTUAL FRAUD DOES NOT REQUIRE A FALSE REPRESENTATION

��

Jeffrey G.Bennett

In MemoriamWe were sad to learn of the deaths of several

of our members’ loved ones:

Angie Martell’s mother, Iris Theresa Bleck, 83, passedaway on November 4, 2016.

Hon. Carol Kuhnke and Elizabeth Janovic’s son, JohnKuhnke, 16, passed away on November 28, 2016.

Our deepest sympathies are with their families.

Vanzetti M. Hamilton Bar Association

President:KelechiAkinbosedeVicePresident:ToiDennisTreasurer:ShaylaFletcherSecretary:EraneWashingtonDirectoratLarge:RobynMcCoyDirectoratLarge:RitaWhite

Washtenaw Association for Justice

President:LanaPanagouliaVicePresident:ChadEngelhardtTreasurer:BenjaminMuthSecretary:ElizabethGraziano

Women Lawyers Association of Michigan, Washtenaw Region

President:PatriciaReiserVicePresident:ParisaGhazaeriTreasurer:CharlotteCrosonSecretary:AlisonLoveStateBoardRegionalRepresentative:AngelaWalker

LOCAL BAR ASSOCIATION OFFICERSMarch/April 201710

$750 MONTHLY, ATTORNEY OFFICESPACE AVAILABLE (4158 Washtenaw Ave.,Ann Arbor) - Excellent Ann Arbor location.One furnished (optional) attorney office avail-able in beautiful large former residence. Ex-cellent location with easy access to US-23 andI-94. Free onsite parking. Complete amenitiesavailable. Must be willing to sign a one yearlease. Please call: 734-677-3280.

SHARED ATTORNEY OFFICE SPACEAVAILABLE AT 35 RESEARCH DRIVE, AnnArbor, located off N. Main St. at M-14. Fiveminutes from downtown. Furnishings includephone system, networked color printer/scan-ner, and internet. Free parking. 734-662-1293.

[email protected]

CLASSIFIEDSSHARED ATTORNEY OFFICE(S) AT 35 RESEARCH DRIVE, ANN ARBOR, o� N. Main at M-14. Five minutes from downtown. Phone sys-tem, color printer/scanner, internet. O�ce size(s) & furnishings priced to meet your needs. Free park-ing. 734-662-1293.

PART-TIME ATTORNEY OFFICE SPACE AVAILABLE. Up to 20 hours/week. Very a�ord-able. Good location at corner of South State Street and East Eisenhower Parkway. Share with one oth-er established local attorney. Furnished. Plenty of parking. Full-wall window. Handicap accessible. Receptionist. Wi-Fi. Waiting area. Please email a2attorneyo�[email protected].






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Bodman PLC is pleased to announce that Susan M. Kornfi eld,chairofthefirm’sIntellectualPropertyPracticeGroup,hasreceivedthe2017StateBarofMichiganIPSectionExcellenceinIntellectualPropertyAward. She is only the third recipient of the Excellence in Intellectual Property Award. Inherpractice,Kornfieldassistsclientsinintellectualpropertymatters,includingtrademarkregistrationandenforcement,technology development and licensing, copyrights, online commerce, economic

espionage,andunfaircompetition.SheisacertifiedmediatorandhandlesawiderangeofIPdisputes.KornfieldisanadjunctprofessorattheUniversityofMichiganLawSchool and a regular speaker at CLE conferences. She has contributedprobonolegalservicesformorethan30yearsandisco-chairofBodman’sProBonoCommittee.

BodmanPLCispleasedtoannounceFrank J. Manley,abusinesslawattorney,hasjoinedthefirm’sAnnArborofficeasamember.Manleyrepresentsclientsinavarietyofgeneralbusinesstransactionsandinmattersinvolvingcorporategovernance,commercial contractual issues, mergers andacquisitions,corporatefinance,anddebtandequityfinancing.BeforejoiningBodman,ManleypracticedintheNewYorkofficeofagloballawfirmwherehefocusedoncomplexfinancialtransactions.Priorto

that,heworkedatalarge,internationalBoston-basedfirmasamemberofthefinanceanddebtcapitalmarketspracticegroup.ManleyisacumlaudegraduateofHarvardLawSchool,whereheservedasaneditorfortheHarvardJournalof Law and Public Policy.

Jasmine D. Rippy,anassociateattorneypracticinginBodmanPLC’sAnnArboroffice,has been elected to the board of directors oftheWolverineBarAssociation.Rippy,amemberofBodman’sbusinesspracticegroup,representsbusinessesinmattersinvolving a broad range of corporate law issuesincludingbusinessformationandcommercialtransactions.BeforejoiningBodman,sheservedasajudicialexterntoJudgeJackZouharyoftheU.S.DistrictCourtfortheNorthernDistrictofOhioand

toJudgeThomasTuckeroftheU.S.BankruptcyCourtfortheEasternDistrictofMichigan.TheWolverineBarAssociationwasestablishedduringthe1930’stocoordinatetheenergiesand talents of the increasing number of African-Americans admittedtopracticethroughoutMichigan.

Member Notes

MEMBER AND LAW FIRM NOTES

Susan M. Kornfi eld

Frank J.Manley

Jasmine D.Rippy

Law Firm NotesBrandon M. Biggs and Scott Gunst are pleased to announcetheopeningoftheirlawfirm,Biggs & Gunst P.C. Thefirmislocatedat3830PackardRd.,Suite240inAnnArbor.Areasofpracticeincludebicyclingacci-dents,autoaccidents,maritimelawandmediation.

Peter C. Flintoft and Mariah Evans Fink take pleasure inannouncingtheformationofKeusch, Flintoft & Fink, PLLC,apartnershipforthepracticeoflaw.Thefirmislocatedat119S.MainStreetinChelsea.

Att orney Online Access*The Washtenaw County Trial Court offersanaddedbenefittomembersoftheBar.Attorneyshaveonline

internetaccesstocasefiles,includingthe ability to perform case and

calendar searches and the ability to view and print the documents attachedtothecasefilewheretheattorneyistheattorneyofrecordon

the case.

To obtain a login and password to theattorneyportal,pleaseclickonthislink: AttorneyAccess or send

an email to [email protected]. Please be sure to provide your

full name, bar number and the attorney’semailaddresswiththerequest.Youwillreceiveanemailresponsewithinstructionsonhow

tologintotheattorneyportalwithinapproximately2-3businessdays.

*Ourattorneyaccessportalhasgrowninpopularity over the past year. As of August

15th,morethan1,200attorneyshaverequestedlog-incredentials,andthose

requestscontinuetocomeineverydayfromall across the state.

mailto:l-odyssey@ewashtenaw.





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What jobs did you have before you became an attorney? Afterseveralassortedhighschooljobs,Iwasatravel agent, bank manager, and trust department administrator. In the trust department, one of my assignmentswastotakeestateplanningattorneystolunch and ask them to refer their clients to our bank. I gottomeetadiversegroupofattorneys,anditreallyhelpedmotivatemetoattendlawschool.

Did you always know you wanted to be an attorney? Where did you get your law degree? Anything else interesting?

I always thought I wanted to be something else. I earned twodegreesinbusinessbeforefindingmyselfinlawschoolatThomasM.CooleyLawSchoolinthedayswhenwewereinjustonebuildingindowntownLansing.

What area of the law do you like the best and why? Ireallyenjoyhelpingclientsplantheirestates.Itisrewarding to help them make a plan and then implement it.Settlingestatesisequallygratifying,anditcanbereallynicetogettoknowthenextgenerationofafamily.Thisconcentrationallowedmetimetoraiseafamilywhile building a career.

Tell us a little about your family.MyhusbandandIareintheblissfulphasebetweenraisingthekidsandwhatevercomesnext.Ourchildreneach have a special person in their lives, and it has been a wonderful way for our family to grow.

What is the biggest challenge facing you as an attorney today?

It’sbeenthesamechallengeformyentirecareer–balancing my work with an enriching personal life

Any words of wisdom to pass on to new lawyers? Taketimeforyourselforbothyouandyourworkwillsuffer.Believeinyourself,especiallyafteryou’vestudiedhard enough to know what you’re talking about!

What are some of your favorite places that you have visited? Ilove“upnorth,”especiallyanywhereontheGreatLakes.WejustreturnedfromagreatAlaskanvacation,

so southcoast Alaska is currently my favorite place. If you go, put the town of Homer on your list. Things you must dowhilethere:TheHomerSpit;awatertaxiacrossKachemakBaytohike;anddinneratTheLittleMermaid(makeareservation!).

What are your favorite local hangouts? Ireallydon’t“hangout”muchsinceIhadkids.ThePinckneyStateRecreationAreaisawonderfulplaceforboatingontheHalfmoonchainoflakesandthemountainbikingtrails.IalsolikefishingintheHuronRivernearHudsonMillsMetropark.MyfamilyarebigfansofJapanesecuisineandlovealltherestaurantsintown.OurfavoritewouldprobablybeSadakoinAnnArbor.Wealso love Palio’s.

What are your favorite local hangouts? Dexter-HuronMetroparkisaquietspotonweeknightsfor a picnic, a walk, or a bike ride.

What do you like to do in your spare time? Hobbies?Fishing(bothflyandconventionaltackle),biking,boating,golf (not as much as I would like recently), computer gaming, and bowling. Bowling is funny because it was justsomethingwedidasanactivitywiththekids.ThenmywifeandIgotcompetitivewitheachotherandnextthing you know we both have our own bowling balls and shoes. We probably go once or twice per month now.

Why do you choose to be a member of the WCBA? What is the greatest benefit you have enjoyed as a member?

Everyoneatourfirmisamemberbecausewechoosetosupportthelocalbar.ThebenefitImostenjoyistheEstatePlanning,ProbateandTrustSection.Wehaveregulareducationallunches,wherewetaketimetonetwork.OneofthebestthingsabouttheSectionisitsrelationshipwiththeProbateCourt.Forexample,thejudgespeakstotheSectionatleastannually,andthereisagoodexchangeofideas.Thesectionalsoprovidesmonthlyvolunteercounselingforunrepresentedparties,whichhelpsthecourtstaff.

Elizabeth (Betsy) M. Petoskey received her Bachelor of Science in Business from Indiana University (1979), her MasterofBusinessAdministrationfromEasternMichiganUniversity(1981),andherJurisDoctorfromThomasM.CooleyLawSchool(1985).ShehaspracticedatConlin,McKenney&Philbrick,P.C.,inAnnArbor,forover30years.Herpracticeareasareestateplanningandestatesettlement,includingprobate,trustsandestate/[email protected].

Elizabeth M. Petoskey

Peter Clark was born and raised in Ann Arbor and now operates an estate planning and probate practicein town. He previously served multiple active duty tours as a JAG attorney in the US Army beforereturning to Ann Arbor to go into private practice. He can be reached at [email protected] or734‐327‐5031.

Did you always know you wanted to be an attorney? Where did youget your law degree? Anything else interesting?

I NEVER intended to become an attorney… anything but! It wasn’tuntil I was an Army ROTC Cadet at U of M, on my way to becomingan infantry officer as a second career, that I even considered it.There, I was presented with the rare opportunity to become a JAGofficer and it struck me as a very unique and important way toserve (not like being a “regular” attorney) so I jumped on it. Iearned my law degree from Wayne State while on an educationaldelay from service and entered active duty thereafter. In the ArmyI worked in the Pentagon for the Office of General Counsel of theArmy. I was a civil legal assistance attorney, a Trial Counsel (prose‐cutor), the Senior Trial Counsel for Fort Bliss, a Special Assistant USAttorney for the Western District of Texas, a Military Magistrate,the Chief of Legal Client Services of Fort Bliss, and finally the Com‐mand Judge Advocate for TACOM/Detroit Arsenal.

What jobs did you have before you became an attorney? I was a professional DJ which eventually turned into opening andoperating a professional audio retail store in downtown AnnArbor. I also operated recording studios and managed events forseveral local night clubs during that time. That was before college,the Army, wife, and kids. It was quite a different lifestyle than theone I lead now!

What area of the law do you like the best and why?I absolutely love estate planning and can see myself happily en‐gaged in that for the rest of my career. I never thought I would bean estate planner but it was one of the first jobs I was given as aJAG attorney and I immediately loved it. I then went off to docriminal litigation for several years, which is what I thought I’d bedoing as a career, but didn’t love it and found myself wanting toget back to estate planning the whole time. It’s a very analyticaland creative area of law, usually slower paced (when compared tolitigation) and, most importantly, it is typically a positive experi‐ence for all involved. You are helping your clients achieve peace‐of‐mind and they are always grateful for that.

Tell us a little about your family.My wife is a special education teacher working in Livonia PublicSchools. She specializes in autism and currently works with 18‐26year‐olds to help them develop life and job skills. We have twodaughters, 5 and 7, in Ann Arbor Public Schools. They like art,dance, soccer, and fighting with each other over insignificant mat‐ters.

What is the biggest challenge facing you as an attorney today? I operate a private practice and have been very lucky to some‐times find myself with more potential work than one attorney canhandle. Therefore, I think my biggest challenge in the comingyears will be intelligently expanding my practice.

What would your second career choice have been if you had not be‐come a lawyer?

We’d really be talking about a 4th career choice here, but I was al‐ways on the verge of pursuing architecture. My grandfather was amid‐century modern architect on the East Coast and I grew up re‐ally loving modern art and design. Still do. I think I would haveloved designing buildings and watching them come to life.

Any words of wisdom to pass on to new lawyers? For those involved in litigation, one thing I always preached to myfellow prosecutors was to never become emotionally attached to acase. You must be able to step back, acknowledge your emotions,and then leave them at the doorstep. Though it may sound cold,when you succumb to your emotions about a case it will impairyour judgment, cause you to narrow your vision, and perhapsworst of all, it can eat you alive and make you miserable. You stillgive each case 100% effort, but you do that because it’s your duty,not because of how you feel about it.

What is your favorite movie or book? Favorite movie is “Wayne’s World.” There goes any credibility Ihad. Favorite book is probably A River Runs through It.

Describe a perfect day off.A long afternoon hike through Ann Arbor with my wife on a springday.

What are some of your favorite places that you have visited?As far as natural beauty, it would be very hard to beat Alaska inthe summer.

What are your favorite local hangouts? That’s top secret Townie information.

When you have a little extra money, where do you like to spend it?I would love to buy more art for my house.

What do you like to do in your spare time? Hobbies?I love endurance running. On weekends you can find me runningthe length of the Huron River, from Parker Mill on the east side toBarton Dam on the west side, and then back again. I’m happiestrunning trails for hours by myself. I rarely enter races.

Why do you choose to be a member of the WCBA? What is the greatest benefit you have enjoyed as a member?

Being part of the local legal community is great, especially for get‐ting to know people who practice in your particular sub‐field. I’vefound that other attorneys in the area are quick to offer help andassistance. And, I love having the WCBA office in the courthouse…which has come in handy!

7Res Ipsa Loquitur

&AnsweredAsked

Peter ClarkElizabeth(Betsy)M.Petoskey





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2017 – 2018 ELECTED BOARD

K. Orlando Simón President

Elizabeth C. JolliffePresident Elect

Mark W. JaneVice President

Paul C. FesslerTreasurer

Jennifer L. LawrenceSecretary

Elizabeth A. Kitchen-TroopImmediate Past President

Justin M. AltmanDirector at Large

Rosemary Frenza Chudnof

Director at Large

S. Joy GainesDirector at Large

Nicole E. MackmillerDirector at Large

Congratulations!




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Congratulations!

Washtenaw County Bar Association

2017 – 2018 BOARD OF DIRECTORS

President K. Orlando Simón 734-‐763-‐9920 [email protected] President Elect Elizabeth C. Jolliffe 734-‐663-‐7905 [email protected] Vice President Mark W. Jane 734-‐995-‐3110 [email protected] Treasurer Paul C. Fessler 734-‐369-‐6448 [email protected] Secretary Jennifer L. Lawrence 734-‐302-‐7274 [email protected] Immediate Elizabeth A. Kitchen-‐Troop 734-‐302-‐7274 [email protected] Past President Co-‐Chairs, Anna M. Frushour 734-‐332-‐3419 [email protected] Judiciary Committee W. Daniel Troyka 734-‐761-‐9000 [email protected] Co-‐Chairs, Katherine M. Sharkey 734-‐994-‐3000 [email protected] Friend of the Court Committee Shalini Nangia 734-‐929-‐0830 [email protected] Co-‐Chairs, Samuel J. Bernstein 734-‐883-‐9584 [email protected] Community Liaison Benjamin M. Muth 734-‐481-‐8800 [email protected] Co-‐Presidents, Jinan M. Hamood 734-‐355-‐5666 [email protected] New Lawyers Section Alexander W. Hermanowski 734-‐763-‐9920 [email protected] Directors Justin M. Altman 734-‐845-‐9734 [email protected] at Rosemary Frenza Chudnof 734-‐678-‐6135 [email protected] Large S. Joy Gaines 734-‐222-‐6970 [email protected] Nicole E. Mackmiller 734-‐482-‐7012 nmackmiller@manchester-‐associates.com Executive Kyeena Slater 734-‐994-‐4912 [email protected] Director




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2017-2018 SECTION & COMMITTEE CHAIRS

Section ChairsAlternative Dispute Resolution

StefanieMeisel,JulietPressel&EdSikorski

Bankrupcty LawJeffreyBennett&JefferySattler

Business LawAndrewBossory&SarahWixson

Criminal LawAlexHermanowski&SamBernstein

Estate Planning, Probate & Trust LawSarahMeinhart&RichardZmijewski

Family LawJessicaPospiech&ParisaGhazaeri

Federal PracticeJustinBagdady&TrentCollier

Immigration LawHeatherGarvock&BradThomson

Intellectual Property LawVincentRe&ThomasHeed

LGBTQ RightsAngieMartell&S.KereneMoore

Labor & Employment LawDavidBlanchard&AimeeGibbs

Marijuana LawBenjaminJoffe&JohnReiser

New LawyersAlexHermanowski&JinanHamood

Real Estate & Environmental LawJohnErdevig&JosephWest

Solo & Small Firm PracticeMelissaEpstein&PeterClark

Tax LawLiamHealy&DanielC.Cramer

Trial PracticeMatthewCameron&AlisonCarruthers

Committee ChairsAwards

JohnReiser&AshwinPatel

Community LiaisonBenjaminMuth&SamuelBernstein

Friend of the Court LiaisonKatherineSharkey&ShaliniNangia

Golf OutingMarshaKraycir

JudiciaryW.DanielTroyka&AnnaFrushour

Law & Justice FundBradleyMeLampy

LibraryRobertMagill

LRISWalter Hamilton

Modest MeansElizabethKitchen-Troop

NominatingElizabethKitchen-Troop

Public Service & Pro BonoTracyVandenBergh&KatherineSharkey

Race, Gender & Ethnic Bias AwarenessParisaGhazaeri

Res Ipsa LoquiturTeresaKilleen

TechnologyGregoryDodd&RandyMusbach

Trivia Night GregoryDodd,JohnReiser

&K.OrlandoSimón

Trivia Night Silent AuctionTBA




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NEW MEMBERS

PETER G. BISSETT P69853CarloJ.Martina,P.C.1158S.MainSt.Plymouth,MI48170phone:734-254-1140e-mail:[email protected]

CATHERINE M. CANMAN P80294CanmanLawOffices660FairwaysLaneChelsea,MI48118phone:312-285-6961e-mail:[email protected]

BRITNEY A. LITTLES P81674LawFirmofEraneC.Washington-Kendrick,PLLC2750CarpenterRd.,Ste.5AnnArbor,MI48108phone:734-769-7677e-mail:[email protected]

FRANK J. MANLEY P81728Bodman PLC201S.Division,Ste.400AnnArbor,MI48104phone:734-930-2489e-mail:[email protected]

LEILA P. McCLURE P81711Dickinson Wright PLLC350S.MainSt.,Ste.300AnnArbor,MI48104phone:734-623-1907e-mail:[email protected]

MICHAEL S. MELFI P64738Bodman PLC201S.DivisionSt.,Ste.400AnnArbor,MI48104phone:734-930-2497e-mail:[email protected]

JASMINE D. RIPPY P80087Bodman PLC201S.DivisionSt.,Ste.400AnnArbor,MI48104phone:734-930-2487e-mail:[email protected]

MATTHEW P. THOMAS P80686AnnArborCityAttorney’sOffice301E.HuronSt.P.O.Box8647AnnArbor,MI48107phone:734-794-6170e-mail:[email protected]

PETER J. TOMASEK P78971CollinsEinhornFarrellPC4000TownCenter,9thFloorSouthfield,MI48075phone:248-663-7720e-mail:[email protected]

JAMES L. WOOLARD P77493Miller,Canfield,PaddockandStone,PLC150W.Jefferson,Ste.2500Detroit,MI48226phone:313-496-7652e-mail:[email protected]

NEW ASSOCIATE MEMBERS

ROCHELLE MURPHREE Legellephone:734-277-9860e-mail:[email protected]

JOHN SPANGLER e-mail:[email protected]

CHANGES

BRANDON M. BIGGS P79722Biggs&GunstP.C.3830PackardRd.,Ste.240AnnArbor,MI48108phone:734-263-2320e-mail:[email protected]

LAURIE D. BREWIS P58878TheTGQLawFirm2245S.StateSt.,Ste.1EAnnArbor,MI48104phone:734-408-1354e-mail:[email protected] PATRICK E. CAFFERTYP35613CaffertyClobesMeriwether&SprengelLLP220Collingwood,Ste.130AnnArbor,MI48103phone:734-769-2144e-mail:[email protected]

DIANNA L. COLLINS P53371MichiganAttorneyGeneral’sOffice3030W.GrandBlvd.Detroit,MI48202phone:313-456-0180

SHAYLA A. FLETCHER P74716TheTGQLawFirm2245S.StateSt.,Ste.1EAnnArbor,MI48104phone:734-636-0737e-mail:[email protected]

JOELLE L. GURNOE-ADAMSP70979Chalgian&TrippLawOffices,PLLC4420JacksonRd.,Ste.102AnnArbor,MI48103phone:734-276-0260e-mail:[email protected]

CHARLES G. HOFFMANP28464Lake Property Law, PLC2311E.StadiumBlvd.,Ste.212-1AnnArbor,MI48104phone:231-627-4249e-mail:[email protected]

SHARON M. KELLY P35934AttorneyatLawP.O.Box2759Douglas,MI49406e-mail:[email protected]

MARLA A. LINDERMANP55759Linderman Law PLLC531WoodgroveDr.AnnArbor,MI48103phone:810-220-0600e-mail:[email protected]

MEGHAN PRINDLEP78022Legacy Land Conservancy6276JacksonRd.,Ste.GAnnArbor,MI48103phone:734-302-5263e-mail:[email protected]

LAW FIRM CHANGE

Garan Lucow Miller, P.C.is pleased to announce itsnewlocation:201S.MainSt.,5thFl.AnnArbor,MI48104phone:734-930-5600

NEW MEMBERS AND CHANGES




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Althoughthecultivationanddistributionofmar-ijuana is now legal under the laws of severalstates(whetherformedicalorrecreationaluse),marijuanaisconsideredaScheduleIdrugunderfederal law. Therefore, all marijuana producersand resellers are subject to Internal RevenueCode(“IRC”)§280E,whichdisallowsdeductionsand credits incurred in the trade or business of trafficking controlled substances (which are theSchedule I and II drugs).

However,sinceIRC§280Edoesnotaffecttheadjustmenttogrossreceiptsduetocostofgoodssold(“COGS”),pro-ducers and resellers can deduct the cost of growing or ac-quiring marijuana. Consequently, many tax professionalshavesuggestedthatmarijuanabusinessesallocateasmanyexpensesaspossibletoCOGSundertheuniformcapitaliza-tionrulesof§263A,whichrequirescertain indirectcostsattributableto inventory,suchas labor,storage,andrent,tobecapitalizedratherthanexpensed.

In early 2015, the IRSOffice of Chief Counsel released aMemorandum1whichstatedtheIRS’spositionthattaxpay-ers in themarijuana business are required to determineCOGS using the applicable inventory-costing regulationsunder§471astheyexistedatthetime§280Ewasenacted.TheIRS’spositionessentiallypreventsmarijuanabusiness-esfromtakingadvantageoftheuniformcapitalizationrulesunder§263AtocapitalizeexpensesunderCOGS,because§ 263Awas enacted four years after the enactment of §280E. DespitetheMemorandum,thereareseveralstrat-egiesthatmaybeconsideredtominimizethetax liabilityofalicensedmarijuanabusiness.Additionally,theMemo-randumprovidesonlytheIRS’sposition,whichhasnotyetbeen challenged or addressed in U.S. Tax Court.

Separate Line of Business

Any entity operating a separate business in addition tothe business of producing or resellingmarijuanamay al-locateexpensesbetweenthemarijuanabusinessandtheseparatebusiness,becausedeductionsattributabletotheseparatebusiness arenot disallowedby § 280E. Califor-nia Helping to Alleviate Medical Problems, Inc. v. Commis-sioner,128T.C.173(2007).Therefore,marijuanaresellersand producers may include a separate and complimentary lineofbusinessoperatingoutofthesamelocation(e.g.giftshop,counselingservices,relaxationtherapy).Thisallows

the licensedmarijuana business to share expenseswith a separate business that is not prohibited from claimingdeductionsunder§280E. Thebusinesseswouldbeorganizedas separateentitiesandwouldmaintaindetailedrecordsoftheallocationofexpens-es foreachentity.Additionally, thebusinessesmayconsiderenteringintoajointventureagreementthatdefinesthescopeofeachbusinessinordertofurthersegregate the separatebusiness and themarijuanabusiness. The joint venture agreementwould statethat the entity operating the separate business is

prohibited from receiving any revenue produced by mari-juanasalessubjecttothestateorlocalmarijuanalaws.

Anotherbenefitofsettingupthetwolinesofbusinessasseparateentitiesisthattheentitiescanhavedifferenttaxstatus. Manymarijuana businesses are established as Ccorporations. However,Ccorporationstatustendstope-nalizesmallbusinessesduetodoubletaxation(taxatboththeentityandshareholderlevel).Theseparatelineofbusi-nesscanchoosetobeanScorporation,partnership,orsoleproprietorshipandavoidthedoubletaxitwouldbesubjecttoifitwereoperatedunderthesameentityasthemarijua-na business.

Capitalizing Costs Under § 263A

AlthoughtheMemorandumlaysoutalogicalargumentfornot allowingmarijuana businesses to utilize the uniformcapitalizationrulesunder§263A,onecouldarguethattheIRS’spositionusesthetimingoftheenactmentof§280Eand§263Aasapretexttopenalizemarijuanabusinessesoperatinglegallyunderstatelaw.TheexplanationinSenateReportof§280EspecificallystatesthatadjustmentswithrespecttoCOGSarenotaffectedby§280E.S.Rep.No.97-494(Vol.I),at309(1982).

However, the uniform capitalization rules under § 263AwerenotintroduceduntiltheTaxReformActof1986,fouryears after theenactmentof § 280E.At thetime§280Ewasenacted,theinventory-costingregulationsusedtocal-culateCOGSweretheregulationsunder§471.Undertheregulationsunder§471,aresellerofmarijuanaisrequiredtocapitalizetheinvoicepriceofthemarijuanapurchased,lesstradeorotherdiscounts,plustransportationandoth-ernecessarycharges incurred inacquiringthemarijuana.Treas.Reg.§1.471-3(b).

All other expenses are considered business expenses un-

Daniel C. Cramer

Federal Taxation of Marijuana Businesses




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der§162,whicharedisallowedby§280E. Section263Aincreased inventoriable costs by requiring taxpayers to cap-italize certain expenses that hadpreviously beendeduct-ibleunder§162.Unlikemostotherbusinesses,marijuanabusinesseswouldprefer tocapitalizecostsunder§263A,rather thandeduct thoseexpensesunder§162,becausesuchdeductionsaredisallowedby§280E.

However, § 263A(a)(2) provides that “[a]ny cost which(but for this subsection) could not be taken into accountincomputingtaxableincomeforanytaxableyearshallnotbetreatedasacostdescribedinthisparagraph.”TheIRSarguesthatwhen§263A(a)(2)isreadwith§280E,itisclearthatmarijuanabusinessescannottakeadvantageoftheuni-formcapitalizationrulesunder§263Atoconvertnon-de-ductibleexpensesintoinventoriablecosts.Additionally,theIRSargues that§263A is atimingprovisionand that if ataxpayerwereallowedtocapitalize“additional263Acosts,”§263Awouldnolongerbemerelyatimingprovisionandwouldbecomeaprovisionthattransformsnon-deductibleexpensesintocapitalizablecosts.

Itmaybeargued,however,thattheIRS’spositionconvertsanotherwiseinventoriablecostunder§263Aintoadeduct-ibleexpenseforthepurposeofdisallowingitunder§280E.Section 280E explicitly refers to a “deduction or credit.”Furthermore,asnotedabove,theSenateReportspecifical-lystatesthatIRC§263AdoesnotaffectadjustmentswithrespecttoCOGS.TheIRS’spositionforcescertaintaxpayerstocalculateCOGSdifferentlyfromallother taxpayer’s due toacodesectionthatisnotintendedtoaffectthecalcula-tionofCOGS.Although this argument may seem somewhat circular, it appears that the IRS is going out of its way to disallowdeductionsandpenalizemarijuanabusinessesthatareoperatinglawfullyunderstatelaw.

DespitetheMemorandum,marijuanabusinessesmayfeelinclinedtocontinuetocapitalizecostsunder§263Awhiletheruleremainsunresolvedbythecourts.Althoughamarijua-nabusinessreportingsubstantialexpensesunder“addition-alsection263Acosts”ontheirForm1125-SmaybeauditedandtheIRSmaydisallowtheadditional263Acostsinaccor-dancewiththeMemorandum,thetaxpayerwouldhavetheoptionofcontestingsomeorallofthedisallowedexpenses.The taxpayer should not be subject to a penalty under §6662ifthepositionisadequatelydisclosedonthereturn,because the taxpayer may argue that it has a reasonable ba-sisfortakingthedisclosedposition.Furthermore,areturnpreparershouldnotbesubjecttoapenaltyunder§6694if

thepositionisadequatelydisclosed.Therefore,untiltheTaxCourtaddressesthisissue,amarijuanabusinessmaycon-siderutilizingtheuniformcapitalizationrules,butwiththeexpectationthatthepositionmaybechallengedbytheIRS.

1 OfficeofChiefCounselMemorandumNo.201504011 (1/23/15)

Daniel C. Cramer is a partner at Cramer, Minock & Sweeney, P.L.C. in Ann Arbor, Michigan and the co-chair of the Tax Law Section of the WCBA. He focuses his practice on taxation, estate planning, business formation, and commercial trans-actions. He received his JD, magna cum laude, from the University of Miami School of Law and his LLM in Taxation from New York University School of Law. He can be reached at [email protected].















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Jeffrey G.Bennett




















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Jeffrey G.Bennett




















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Jeffrey G.Bennett





Our deepest sympathies are with their families.Our deepest sympathies are with their families.

Thelocallegalcommunitysufferedthelossoftwoofitsbelovedattorneysrecently:

Fred Saul Steingold, 81, passed away on August8,2017.

J. Samuel Holtz,60,passedawayon September3,2017.





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WhenthetrainingwheelscameoffIneverwouldhaveimaginedwherethejourneythatlifeontwowheels would take me. I have crossed our great country twice, logged tens of thousands of miles, raised hundreds of thousands of dollars for charity, madelifelongfriends,andmetmyfiancée-allwhileridingmybike.Formethebikeisfreedom;itisZen;itisaplatformtoreachpeople;andithasgivendirec-tiontomycareer.Whilemyexperienceonthebikehaspositivelychangedmylife,forothers,cyclinghastragically cut theirs short. As more and more people discoverlifeontwowheels,whetherforrecreationortransportation,morecyclistsaresharingtheroadwithcarsandtheresultsaresometimesdisastrous.

Cyclingisdangerous.Ghostbikessmatterroadsidesallovertheworld:whitebicyclesleftinmemoriamtocyclistskilledontheroad, serving as a constant reminder of the gravity of being a cyclist.Ihavebeennearlystruckseveraltimesbyacar,watchedfriendsgethit,andmyfiancéewasstruckwhilewaitingatastoplight.ThefirsttimeIhadafriendkilledwhileriding,Iwasonmysecondcross-countrytrip.ThemorningafterIgotthenewsChristinawasdeadIstillhadtogetonthebike.Ihadahundredmiles to the next city. It was in these days I rode with real fear. EverytimeIgooutridingthereisalwaysthequestioninthebackofmymind...“IsthisthedayIdonotmakeithome?”

Unlike Europe, in which cycling has been an integral part of culture for the last century, the United States has been, and continuestobe,acar-dominatedsociety.Sprawlingstretchesofdrive-thrusandparkinglotsleavedriversforgettinganyonegetsaround in any other fashion. In spite of the implicit risk to recre-ationalandcommutercyclists,moreandmorebikessharetheroad with cars every year. In the last decade the United States hasseena30%riseinthenumberofcyclistsontheroad.Itisimportant that cyclists and drivers alike understand the laws and responsibilitieseachshareinordertosafelycoexist.

Michigan Bicycle Laws

Cyclists have an absolute right to use public roads, and to be fair,bicycleswereontheroadlongbeforeMr.FordrolledouthisfirstmodelinDetroit.Asmorecyclistssharetheroadwithmotorists,itisimportantthateveryoneunderstandthetrafficlaws as they apply to cyclist and motorist alike. In general, a cyclistridingonpublicroadsmustfollownormaltrafficrules,includingfollowingthedirectionoftraffic,stoppingatstopsignsandtrafficlights.IconstantlyshakemyheadwhenIwitnesscy-clistsblowingthroughstopsignsorevenworse,redlights.Youarenotonlyputtingyourlivesindanger,youarefurtheringtheanimosity many drivers hold for cyclists.

Unlikemoststates,abicycleisnotavehicleinMichigan.TheMichiganVehicleCodedefinesabicycleasadevicewithtwoorthreewheelsintandemortricycleformationpropelledbyhuman power that a person can ride. While cyclists need to

follownormaltrafficrulesandregulations,theVehicleCodehasasectiondedicatedtotheregulationanduseofbicyclestoensurethatcyclistsusereasonablecautionandfurtherssaferidingpractices.Hereareafewofthemoreimportantregulations:

•Whenridingonpublicroadsbelowthespeedlimityoumustrideascloseaspracticabletotheright-handcurboredgeoftheroad.Thereareexceptionssuchaspreparingtoturnleft,ordangerousroadconditionsonthe shoulder.

•Whenridingone-halfhouraftersunset,orone-halfhour before sunrise you must use lights. I also recom-mend using a blinking taillight to increase your visibility during all hours of riding.

•Cyclistmustsignaltheirintentionswhenturningleftorrightbyraisingtheirrespectivearmshorizontallyandmust signal stopping by extending their arm downward.

•Whenridingontheroadcyclistmustnotridemorethan two bicycles abreast.

•Cyclistsshallnotcarryanypackage,bundle,orarticlewhich would prevent them from keeping both hands upon the handlebars.

TherearecurrentlynolawsinMichiganrequiringcycliststowearhelmetsorprohibitingthehands-freeuseofcellphoneswhileridingtheirbicycle.Itissafepracticetoalwayswearyourhelmet and avoid talking on the phone while riding your bicycle.

InadditiontotheMichiganVehicleCode,therearelocalordi-nances,whichfurtherregulatetheoperationofbicycles.

Bicycling and No-Fault

Michigan’sNo-Faultsystemisdesignedtoaidtherecoveryofthose involved in auto accidents, however bicycles, like motor-cycles,arenotrequiredtocarryNo-Faultinsurance.Accordingly,cyclistswhohavefallenofftheirbikeorareinvolvedinacolli-sionwithanotherrideraffordsneithercyclistPIPcoverage,andanyinjuriesarehandledthroughtherider’sindividualhealthinsurance. However, when a cyclist is involved in a collision with anautomobile,no-faultbenefitsareextendedtothecyclistfol-lowingthesameorderofpriorityusedinotherNo-Faultclaims,includingtheapplicationtoMichiganAssignedClaimswherenoother insurer is responsible for the claim.

The E-Bike Question

AsifMichigan’streatmentof bicycleswasnotalreadycon-founding, recently there has been a raise in the sale and use of electronic bikes or e-bikes as they are commonly known. E-bikes resemblenormalbicycleshowevertheycontainasmallbatteryand electric motor designed to assist the rider, the inclusion ofwhichmakestheirdesignationunclearunderthelaw.The

Brandon M.Biggs

Life on Two Wheels: A brief discussion of the rise of

cycling and Michigan’s cycling laws




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questionable status of e-bikes has led to the issuance of many ci-tations and in extreme cases confiscation of the bicycle. In New York City, e-bikes are currently illegal under the law and the New York City Police Department confiscated 247 e-bikes in a 24-hour period and issued hundreds of tickets. Under current Michigan law, an e-bike could be considered a mo-ped because of the electric motor. The designation of an e-bike as a mo-ped would require the e-bike operator to possess a valid driver’s license, register the e-bike and, depending on the rider’s age, wear a helmet.

There are a number of bills currently before the Michigan House of Representatives, which would clarify the status of e-bikes under Michigan law. House Bill No. 4782 seeks to define what an “electric bicycle” is. The bill includes various classifications of e-bikes depending on how the electronic motor assists the rider as well as the speed the e-bike could potentially achieve. House Bill No. 4781 establishes which public trails that e-bikes may operate on depending on their classification. House Bill No. 4783 would exempt e-bikes from Michigan’s no-fault insurance requirement.

Share the Road

As more and more people take up cycling whether for recre-ation or an alternative means of transportation, it is important that we all share the road and be mindful of one another. Al-though Michigan does not require a 3-foot passing area around

cyclists as many other states do, Michigan law requires motorist to pass cyclists at a safe distance. The cyclist you see on the road is someone’s son or daughter, mother or father, wife or husband. The cyclist could be me. When operating your car please be careful and put the phone down. In this digital age, we are constantly bombarded by emails and text messages; it only takes one second of inatten-tiveness to destroy someone’s life.

Brandon Biggs is a partner in the law firm of Biggs & Gunst P.C. Brandon and his partner Scott Gunst are both avid cyclist and strong advocates for cyclist rights in the State of Michigan and participate in charity rides throughout the year. Recently Bran-don and his firm raised nearly $1,000 for the Juvenile Diabetes Foundation when he participated in the 150-Mile One Day Ride Across Michigan. For more information on Michigan cycling laws or Brandon’s firm, visit www.biggsgunst.com.















ab

Jeffrey G.Bennett






Karl Barr, Nick Kyriakopoulos, K. Orlando Simón (WCBA President), Bob West, Alex Hermanowski, Jinan Hamood and Nick Roumel at Orlando’s End-of-the-Summer Speakeasy at Cultivate Coffee & TapHouse in Ypsilanti.

Hon. Patrick Conlin, Jr. (center) with attorneys Ravi Nigam, Andrew Bossory, Jessica Pospiech and Parisa Ghazeri after a joint meeting of the Business and Family Law Sections.

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