Columns

Plunkett Cooney partner Frank T. Mamat was recently reelected to the board of directors of the Jewish Bar Association of Michigan (JBAM), of which he is a founding member. It is a two-year term.

Plunkett Cooney partner Frank T. Mamat was recently reelected to the board of directors of the Jewish Bar Association of Michigan (JBAM), of which he is a founding member. It is a two-year term.

Co-founded in 2014, the JBAM is celebrating its 10th anniversary of providing and unifying Jewish and other like-minded attorneys, judges, paralegals, and law students in Michigan by offering educational, social and charitable activities.

A partner of Plunkett Cooney, one of the Midwest’s oldest and most accomplished law firms, Mamat utilizes his more than 50 years of experience to help companies, contractors, employers, lawmakers and trade associations resolve union matters. His expertise includes contract negotiations, elections, union avoidance and labor arbitrations. Additionally, he advises clients on noncompete agreements, unfair labor practice litigation, harassment suits, wage and hour issues and OSHA-MIOSHA safety matters.

Mamat’s experience also includes the resolution of National Labor Relations Board matters, attempted union organization, mass picketing and violence, and secondary boycotts and pressure. His
clients also rely on his counsel and advice on ERISA trust funds and related fiduciary liabilities.

Mamat is listed in Best Lawyers in America, Michigan Super Lawyers, DBusiness magazine’s Top Lawyers, the Labor Relations Institute’s Top 100 Labor Lawyers in the U.S., The American Lawyer’s Top Lawyers, and The American Registry’s Top Lawyers in Michigan.

Mamat received his undergraduate degree from the University of Rochester in 1971 and his law degree from Syracuse University College of Law in 1974.

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Michigan Defense Trial Counsel is pleased to announce its 2024-2025 officers:

President John C.W. Hohmeier, Scarfone & Geen PC
Vice President Frederick V. Livingston, Novara Tesija & Catenacci PLLC
Treasurer Richard J. Joppich, Kitch Attorneys & Counselors PC
Secretary Michael J. Cook, Collins Einhorn Farrell PC

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Kitch Attorneys & Counselors is pleased to announce that Terence Durkin has been appointed to the Human Resources & Workforce Council for a one-year term by the Michigan Health & Hospital Association (MHA).

Durkin’s practice blends labor and employment law with medical malpractice and general litigation. His experience gives him the ability to help clients sort through the challenging and ever-changing world of labor and employment rules and regulations.

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Butzel attorney and shareholder Mitchell (“Mitch”) Zajac was elected chair of the Cooley Law School Board of Directors. He joined Cooley’s Board of Directors in 2020 and was elected vice-chair in 2022.

Zajac is a member of Butzel’s Litigation and Dispute Resolution Practice Group, one of the firm’s largest practice areas. His practice also includes a focus on automotive, intellectual property, regulatory and emissions compliance, and sports law, to name a few. He is a registered patent attorney with the United States Patent and Trademark Office.

He has practiced in six federal courts, the U.S. Patent Office, the Court of International Trade, and the U.S. International Trade Commission. Zajac has helped several clients manage and craft IP portfolios in other unique industries, like medicine, light-weighting, and industrial manufacturing. He also has experience in complex patent, trade secret and commercial litigation cases.

Zajac was included in DBusiness magazine’s 2022 Class of “30 in Their Thirties.” He also was named to DBusiness magazine’s Top Lawyers of Metro Detroit, Intellectual Property and Patent Law, 2021, 2022 and 2023, Patent Litigation, 2023. He was named by 760 WJR and the Detroit Economic Club to the Class of 2023 Rising Stars, comprised of 10 local leaders under the age of 40 who are making an impact in their industries and communities.

He attended Cooley Law School (2017) after graduating from Western Michigan University with Bachelors’ degrees in Mechanical Engineering and German (2012) and a Master’s in Mechanical Engineering (2013).

Zajac was a Rhodes Scholar finalist (2012); interned for Congressman Fred Upton; and was a four-year starter on the Division 1 football team at WMU. Zajac was named to Michigan Lawyers Weekly’s 2020 Class of Up & Coming Lawyers. He also received the Detroit Bar Association’s “One to Watch” Award in 2019. Zajac has been named to Best Lawyers in America: Ones to Watch, Commercial Litigation, 2022, 2023 and 2024.

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Bodman PLC is pleased to announce that the firm, and 28 current Bodman attorneys, have been included in the State Bar of Michigan’s 2024 A Lawyer Helps Pro Bono Honor Roll.

The Honor Roll recognizes individual attorneys, law firms, and corporations that support access to justice efforts by providing pro bono legal services to low-income individuals and families, and to organizations that benefit low-income communities, throughout Michigan. The various award categories are based on time devoted to pro bono matters during 2023.

Bodman was one of only three law firms recognized at the highest “Tier 1” level for cumulative firm hours devoted to pro bono matters for the year.

Individual attorneys are recognized for having devoted at least 30, 50, or 100 hours to pro bono service during 2023. The following local Bodman attorneys are included in the 2024 A Lawyer Helps Pro Bono Honor Roll.

—100+ Hours of Service

Fatmeh T. Cheaib (Detroit office)
Julie E. Nichols (Troy office)

—50 to 99 Hours of Service

Barbara A. Bowman (Troy office)
Grace A. Connolly (Detroit office)
Matthew R. Fleming (Troy office)
Angela M. Quinn (Detroit office)
Alexis A. Smith-Scott (Detroit office)
Glen M. Zatz (Troy office)

—30 to 49 Hours of Service

Celeste E. Arduino (Troy office)
Rebecca El Badaoui (Detroit office)
Amanda McSween Empey (Detroit office)
Brigid D. Fox (Troy office)
Joseph R. Haddad (Detroit office)
Jennifer M. Hetu (Troy office)
Jay B. Long (Detroit office)
Rebecca C. Seguin-Skrabucha (Troy office)
Matthew A. Slipchuk (Detroit office)
Katherine A. Smigelski (Detroit office)

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Miller Canfield is pleased to announce that the firm has expanded its Employment and Labor Group with the addition of Senior Attorney Kyle Bierlein and Associate Attorney Eftiola Greco.  

Bierlein comes to the law firm after serving as Michigan assistant attorney general, advising state clients in matters involving hiring practices, discrimination and harassment, employee discipline and termination, and employer policies and handbooks. He previously served as chief law clerk for the Michigan Department of Attorney General in the Children and Youth Services Division in Wayne County.

Bierlein is a graduate of Wayne State University Law School and Oakland University.

Greco’s experience includes advising and representing clients on a range of litigation and regulatory matters. Her previous experience includes work for the Detroit City Council as a senior policy advisor, and serving as the City of Detroit Board of Ethic’s general counsel and the City of Detroit’s assistant corporation counsel.

A graduate of Michigan State University College of Law and Wayne State University, Greco is the vice president of the Albanian American Bar Association of Michigan and is a member of the Detroit Bar Association and the Women Lawyers Association of Michigan.

The American Immigration Lawyers Association (AILA) released the fourth edition of “The Waivers Book: Strategies for Overcoming Inadmissibility, Removability, and Other Barriers to Immigration Benefits” in both print and eBook formats.

The American Immigration Lawyers Association (AILA) released the fourth edition of “The Waivers Book: Strategies for Overcoming Inadmissibility, Removability, and Other Barriers to Immigration Benefits” in both print and eBook formats.

Waivers are a key tool in an immigration law practitioner’s toolbox. Barriers to eligibility, such as unlawful presence, misrepresentation, or a criminal background can be overcome with the exercise of the government’s discretion.

The new edition of “The Waivers Book” is a comprehensive guide to the complex world of immigration waivers. It contains useful legal strategies for applying for waivers of inadmissibility and removability and has been expanded to cover asking the government to exercise its waiver-like discretion to remove obstacles that would otherwise prevent a client from obtaining certain immigration benefits.

“The Waivers Book” shows practitioners how to overcome:

• Inadmissibility under INA §212(a)
• Removability under INA §237(a)
• A late-filed request for change or extension of status
• An overstay or unauthorized employment by an adjustment of status applicant
• The death of a petitioner before I-130 or visa approval
• Inability to comply with the I-751 joint filing requirement
• Loss of F-1 status
• The two-year home residency requirement for J visa holders
• Inability to take naturalization tests and oath

Cost for either the print edition or eBook is $239.  To order, visit https://agora.aila.org/store/products/view/waivers-book.

Happiness in life just doesn’t  happen. As much as it can be easy to believe that happiness comes from how other people treat us, that perception is a fallacy.

Happiness in life just doesn’t  happen. As much as it can be easy to believe that happiness comes from how other people treat us, that perception is a fallacy. Happiness in life is the result of the  positive choices we make to be loving and kind  toward others. Happiness results from the positive choices we make in how we spend our alone time. Happiness results from the positive choice we make in each present moment.

A positive choice is a choice to be loving and a choice to be quietly reflective. A positive choice is to always speak well of others. A positive choice is a choice to  turn closer to God by quietly prayer, meditation and reflection. A positive choice is to listen attentively to others. A positive choice is to take care of our body by consistent, daily exercise and movement of our bodies. It doesn’t have to be intense or overwhelming but our bodies need the positive choice of moving them consistently each day with some moderate exercise, walking, etc.

When we make positive choices like these, we choose to discover our better self just waiting to be embraced. A positive choice will always open us more to God and to Love of others and to a positive and appropriate love toward our own self.

Negative choices like criticizing others, judging and condemning other create obstacles which will block us from internal peace and happiness. Our corner of the world will improve when we make positive choices.

As the  years pass by it can become easier to recognize the negative choices of criticism of others and unhealthy attitudes toward life. To focus on negativity is a poor choice of how to live. To choose to be loving toward others and receptive to God in quiet reflection and meditation is a positive choice of how to live.

It is an amazing uplifting experience when we make positive choices.  In each present moment I can become more aware of how to make a positive choice and I can become more consciously aware of the danger and uselessness of making a negative choice. When I become mindful of the goodness in each present moment, I will make a good choice. When I become mindful of the Presence of God in each present moment, I will make a good choice.  Sometimes a positive choice can be to sit quietly and experience God. At other times a positive choice is to look for the positive qualities in another person and tell that person about those positive qualities that you see in him or her.

It is really quite easy to be loving and positive when we realize that this is simply a choice we can make. It also can be quite easy to have a positive experience of God when we realize that it is a choice we can make to become reflectively quiet and receptive to God.

I thing we can often forget or often minimize the power of making good choices in our life.  Peace and happiness are the result of making good choices. Good choices are always connected to God and to Love. So often we complicate life by making negative choices to be angry, critical, and fighting what we need to embrace in each present moment.

The positive choice to be grateful in each present moment is also an excellent choice to bring us into a peaceful and happy state of existence.

When I choose to be positive, reflective, loving and grateful,  I am choosing to put myself into a presence of God  that is healing, uplifting and wise. It is simple a choice to become positively and lovingly alive with God, others and myself. Whenever I am positive and loving, I am letting the Power and Love of God take over and help me and guide me. This is the power of positive choices.
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Fred Cavaiani is a licensed marriage & family therapist and limited licensed psychologist with a private practice in Troy.  He is the founder of Marriage Growth Center. He conducts numerous programs for groups throughout Michigan. Cavaiani is associate editor and contributing writer for Human Development Magazine. His column in the Legal News runs every other Tuesday.  He can be reached at 248-362-3340.  His e-mail address is: Fredcavi@yahoo.com and his website is FredsCounselorsCorner.com.

Gun violence is at the forefront of every election, political and legal conversation, and provisions relative to gun safety find their way into domestic relations orders at times.

By Marie E. Matyjaszek

Gun violence is at the forefront of every election, political and legal conversation, and provisions relative to gun safety find their way into domestic relations orders at times. Michigan recently enacted the secure storage law, Public Act 17 of 2023, effective February 13, 2024, aimed at reducing unintentional gun deaths and injuries.

According to the U.S. Centers for Disease Control and Prevention (CDC), there were more than 48,000 firearm related deaths in the United States in 2022, and firearm injuries were in the top five leading causes of death for individuals aged 1 to 44, and the greatest cause of death for those aged 1 to 19.

To help combat this, the new law requires that an individual in control of the premises they are on, who leaves a firearm unattended where he’s aware a minor is or likely to be present, must store it in a locked box or keep it unloaded and locked with a locking device rendering it inoperable. If you are on someone else’s property, you can also store the firearm in your vehicle in a locked box, or keep it unloaded with a locking device. You must lock your vehicle.

Penalties for violations of the law increase depending on what happens with the weapon after a minor obtains it. Like most laws, there are exceptions, such as minors who have the firearm with their guardian’s permission, use it for work, farming or target practice.

Obligations are also set forth for federally licensed firearms dealers who sell in the state of Michigan. If any of this law applies to you or your clients, read the entire statute carefully to ensure compliance.

Individuals can request free gun safety kits through Project ChildSafe by going to its website. After filling in the desired location, a list of participating law enforcement departments will display. Gun safety is imperative to saving lives, and compliance with the new law is extremely important in meeting that goal.
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Marie E. Matyjaszek is a Judicial Attorney at the Washtenaw County Trial Court; however, the views expressed in this column are her own. She can be reached by emailing her at matyjasz@hotmail.com.

Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment. He had an encyclopedic knowledge about the run up to the law’s passage in 1974 and the opposition the law faced. Almost every interest group was against ERISA – the automakers, the unions, most private companies, and even state and local governments.

By J.J. Conway

Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment. He had an encyclopedic knowledge about the run up to the law’s passage in 1974 and the opposition the law faced. Almost every interest group was against ERISA – the automakers, the unions, most private companies, and even state and local governments. Its passage is something of a legislative miracle. What I remember most about our conversation was his response when I asked him what happened after ERISA passed. He said his company set the lawyers loose to shape the law the way they wanted it interpreted.

Perhaps, it’s not surprising then that ERISA can be a tough law for the very people it was meant to protect. Federal courts routinely cited “policy reasons” for restraint in construing the law’s protections. Courts took the view that employees should be thankful for the benefits they had since ERISA did not actually mandate the providing of any benefits. (ERISA only imposed standards on plans once they offered benefits to employees). To compound matters, the federal courts crafted difficult legal burdens to overturn discretionary decisions by an employee benefit plan. Nowhere were the judicial obstacles more pronounced than in the area of disability income replacement benefits.

Looking back on it now, it is interesting that two cases involving two hardworking and successful employees were able to push past these obstacles and improve the lives of many others trying to secure disability insurance benefits. I had the good fortune to work with these two remarkable women and witness firsthand their resolve in fighting against difficult odds.

The first case involved the claims of Sherry DeLisle, the chief financial officer of a luxury jeweler. Sherry had been seriously injured in an automobile accident that left her occupationally disabled. Despite her physical limitations and concentration difficulties, Sherry was trying to push through her pain and cognitive issues. Her work was complex, and she was having trouble keeping up. She was ultimately fired for non-performance of her job.

Sherry filed a claim for disability benefits and asserted that she was functionally disabled while still working. She argued that her diminished performance was evidence of her disability after years of accolades, bonuses, pay increases, and promotions. Her benefit plan’s insurer denied the claim.

The insurer claimed Sherry had no coverage since she had been terminated by her employer. The case went to full briefing in a federal district court. Sherry won. But the court allowed the insurer to reprocess the claim and decide whether Sherry was, in fact, occupationally disabled, despite her being off work and later being deemed disabled by the Social Security Administration.

Reviewing her claim a second time, the insurer now claimed that Sherry was “not disabled” based on the file reviews of several physicians working for the insurer or under contract with the insurer. Sherry countered with multiple treating physicians, considerable objective evidence showing extensive hardware and spinal repair, cognitive tests, and affidavits. Again, the insurer upheld the denial. Sherry went back to federal court and challenged her disability insurer’s claims practices. Sherry’s case spanned more than seven years before two different trial court judges and the U.S. Court of Appeals for the Sixth Circuit and a full en banc briefing.

When it was over, Sherry’s case established the “evaluation of factors” analysis in ERISA long-term disability cases. DeLisle v. Sun Life Assurance Company of Canada, 558 F.3d 440 (6th Cir. 2009). This was a key development because it established a framework for analyzing these types of claims. A reviewing court would now look at different evidentiary factors and decide whether a participant was entitled to benefits or whether an insurer abused its discretionary decision-making authority. It also helped make sense of the Supreme Court’s ruling in MetLife v. Glenn, 554 U.S. 105 (2008), a case that originated in the Sixth Circuit. See also “Refining Wilkins: A 20-Year Look at the Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA,” 34 W. Mich. U. Cooley L. Rev. 2018.

Years later, the Sixth Circuit decided Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020). Cheryl Wallace, a decades-long nurse and medical volunteer, contracted a serious infectious disease while traveling abroad. Cheryl became seriously ill and was unable to return to work. Her employee plan denied her claim, arguing that she did not exhaust her pre-suit remedies.

A “failure to exhaust” defense was reflexively asserted in nearly every ERISA claim, and its application was uneven at best. Some cases would be dismissed with prejudice for a failure to exhaust.

Other cases would be sent back to the plan by the court to allow a participant to exhaust their remedies. The exhaustion doctrine was commonly used as a technical defense to sink an otherwise valid claim by missing a step in the pre-litigation process.

Cheryl challenged the exhaustion doctrine in federal court. She argued that if an insurance company was going to insist that a plan participant exhaust their remedies, it had to write that requirement into its contract. Otherwise, there was nothing to require Cheryl — or any other plan member — to take this step. Interestingly, in the nearly fifty years since ERISA had been around, this issue had not been decided at the appellate level.

Cheryl prevailed with the U.S. Court of Appeals for the Sixth Circuit finding that if a benefit plan did not require exhaustion of remedies, it was no longer required. The reasoning in her case was adopted by the Eighth Circuit Court of Appeals, and there has not been a decision holding otherwise to date.

Neither Sherry DeLisle nor Cheryl Wallace set out to change the law. Rather, they both had a contractual dispute in need of a resolution. Both were provided opportunities to resolve their claims by pursuing early settlements. Somewhere along the way something changed. Their cases stopped being about their own individual claims. They took a broader view, despite the financial hardship. The idea of helping others became more appealing and entered into their approach to litigation.

There are risks to this approach. There are also rewards. And when the decision to go big ends up changing the way things are done, there is a kind of magic that happens. And it is something to behold when a client can experience it, just like Sherry DeLisle and Cheryl Wallace did.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

The following column can be classified as insensitive in the aftermath of the assassination attempt on Donald Trump.
Surely, this is no time to place blame but: while calling for the country to unite, Trump’s followers are wasting no time in accusing President Biden for inciting the shooting.

By Berl Falbaum

The following column can be classified as insensitive in the aftermath of the assassination attempt on Donald Trump.

Surely, this is no time to place blame but: while calling for the country to unite, Trump’s followers are wasting no time in accusing President Biden for inciting the shooting.

Thus, it is important to examine Trump’s record in creating an atmosphere for violence.  As Sasha Abramsky wrote in The Nation after the shooting:  

“To be absolutely clear, there is no politician in America today who has done more to stoke political violence than Donald J. Trump. And that is as true today as it was before the attempt on his life.

“Trump has gloried in a language of political violence for the better part of a decade, demonizing his political enemies and taking politics up to and beyond the boiling point.”

Here are just a few examples of Trump’s violent rhetoric:

—In March 2016 when a man was roughed up while protesting at a Trump rally, Trump said such attacks on protestors were “very, very appropriate” and the kind of action “we need a little bit more of.”

—In August 2016, he urged his supporters to “knock the crap” out of opponents and he would pay the legal bills.

—In August 2016, he seemed to suggest that gun advocates attack Hillary Clinton, stating: “If she gets to pick her judges, nothing you can do, folks.  Although the Second Amendment people —
maybe there is, I don’t know.”

—April 2020: Following armed anti-pandemic lockdown protests at several state capitals, Trump tweeted: “LIBERATE MINNESOTA!” “LIBERATE MICHIGAN!” and “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!”

—In May 2020, Trump, in response to protests over the murder of George Floyd, tweeted: “When the looting starts, the shooting starts.” Former Defense Secretary Mark Esper wrote in his memoir
that Trump asked, “Can’t you just shoot them?  Just shoot them in the legs or something?”

—In August 2020, he defended a teen-age supporter who shot three people at a Black Lives Matter protest, and at the first presidential debate of the 2020 election, he declined to condemn white supremacists.

—In September 2020, when police killed a self-described Antifa member suspected of killing a right-wing activist, Trump said, “That’s the way is has to be. There has to be retribution.”

—In October 2020, after the FBI foiled an attempt to kidnap Michigan Gov. Gretchen Whitmer, Trump said on Fox News, that Whitmer “has to open up” and “wants to be a dictator,” using the
language of those arrested in the foiled plot.

—He incited the January 6, 2021 insurrection, called the rioters patriots and promised, if elected in November, to pardon those serving prison terms, insurrectionists who erected gallows on the west front of the Capitol to hang Vice President Mike Pence.

Shortly before the insurrection, in his speech to the rioters, he told them: “To fight like hell.  And if you don’t fight like hell, you’re not going to have a country anymore.”

—The January 6 select committee investigating the insurrection heard testimony that Trump expressed support for hanging Pence for not violating the Constitution by certifying the 2020 election.

—On a taped interview with ABC’s Jonathan Karl, Trump said that calls for Pence’s hanging was, “…common sense, Jon. It’s common sense that you’re supposed to protect.”

—In October 2022, he mocked Paul Pelosi, the husband of former House Speaker Nancy Pelosi, who had his head bashed in with a hammer by a far-right conspiracy theorist.

—In September 2023, Trump suggested that outgoing Chairman of the Joint Chiefs of Staff, Army General Mark Milley, who served more than 40 years in the military, was a traitor who deserved to
be executed after Milley made a call to China, assuring its leaders that the U.S. had no plans to attack their country.

—In March 2024, Trump charged there would be a “bloodbath” in the country if he is not elected in November.

In addition, all his rallies had overtones of violence whether it involved attacks on opponents, protesters and demonstrators in cities or, of course, migrants.

Hold your emails. None of the above is designed to excuse, justify or defend the attempted assassination. It is to be condemned forcefully and in the strongest terms. The frequent use of “unacceptable” to describe the shooting does not do it. The use of “unacceptable” is appropriate when someone doesn’t wipe their feet when they come into your house.

But if we are to work to temper political rhetoric, we need to understand the source. We need to find the political vein which is leaking hate in order to cauterize it.

Most important, at this point, we do not know the motivation of the shooter. He may not have acted on a depraved political rationale.

But, regardless, the man who helped fuel the raging fires in our political climate with inciteful language will now be the recipient of the sympathy vote.
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Berl Falbaum is a veteran journalist and author of 12 books.