Guest Column

Keep your eyes on these cases in 2018

January 5, 2018
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In the coming year, the U.S. Supreme Court and the Michigan appellate courts will do more to shape the future of doing business in our state than just about any other entity — aside from changes to the tax code.

What’s in store for the coming year?

In the U.S. Supreme Court, the now-complete contingent of justices will rule on:

  • Digital Realty Trust, Inc. v. Somers: This case deals with the nature of whistleblower protections for employees of publicly traded companies and their contractors. Under the 2010 Dodd-Frank Act, whistleblowers who report violations to the Securities and Exchange Commission receive certain protections. In this case, employee Paul Somers alleged he was fired after reporting violations to senior management of Digital Realty Trust. Lower courts have sided with Somers, saying he is afforded the same anti-retaliation protections despite not filing his complaints with the SEC.
  • Ohio v. American Express: If you’re in an industry that handles a lot of credit card transactions, especially in the B2B world, you’re going to want to pay attention to this case. At the heart of the issue is AmEx’s anti-steering clause, which prohibits businesses from encouraging using other cards that offer lower rates when making purchases. This case will determine whether businesses can encourage or discourage use of specific credit cards, either through perks and incentives or verbally. 
  • Three employment arbitration cases: Ernst Young LLP v. Morris, National Labor Relations Board v. Murphy Oil USA, Inc., and Epic Systems Corp. v. Lewis. These three cases focus on employment contracts, specifically whether employers can require employees to contract away their right to arbitrate claims as a class or group without violating the National Labor Relations Act.

In the Michigan Supreme Court, there has been a recent change in composition with Gov. Rick Snyder appointing Kurtis Wilder and Elizabeth Clement to fill seats vacated in the past year.  

In 2018, the Michigan Supreme Court will rule on:

  • McNeill-Marks v. MidMichigan Medical Center-Gratiot: Tammy McNeill-Marks told her lawyer about a patient’s alleged violation of a protective order and claims that her employer later fired her for talking to the lawyer. At issue is whether Michigan’s whistleblower law protects employees from making reports of suspected violations to lawyers, regardless of whom the lawyer represents. The lower court said it does, and the case has spawned whistleblower claims where employees have made reports to in-house counsel.
  • Martin v. Milham Meadows 1: Landlords and management companies will want to watch the result in this case. The issue: whether a painted step that a tenant reported being slippery was unfit for reasonable use. The case will determine whether an expert’s assessment of slipperiness can trump evidence of a tenant’s repeated use without incident.
  • Otto v. The Inn at Watervale Inc.: Businesses that own property where children play, beware. Property owners are protected from most liability to people who are injured while fishing, hunting, hiking, sightseeing or engaging in other outdoor recreational activities on the property without paying to use it. But the lower state court determined that children’s outdoor play is not an outdoor recreational activity, and therefore, a property owner can be liable if the child is injured on the property while playing. The case will determine whether property owners owe a greater duty to protect children who play, invited or uninvited, on their property.
  • Bertin v. Mann: Business people who play golf will be interested in the standard of care they owe to other golfers when driving a golf cart. The case arose after a golfer allegedly ran over his golf partner with a golf cart. The case will determine whether a golfer must avoid negligence when driving a golf cart or merely not engage in reckless activity. Of greater interest to some: the case may require the court to decide whether the risk of getting hit by a golf cart is inherent to the game of golf. 

Matt Nelson is a partner at the law firm Warner Norcross & Judd, where he chairs the firm’s Appellate and Supreme Court Practice Group. He can be reached at mnelson@wnj.com. 

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