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Employment Cases in the News: Whistleblower Cases

Employment Cases in the News

Whistleblower Cases

The Chicago Tribute recently reported that Omnicare, Inc. had agreed to settle a whistleblower case. The case alleged that illegal payments were made to secure a long term contract with a pharmacy.

Guy Vining of the Vining Law Group, PLC, has been involved in numerous whistleblower cases. In Michigan the Whistleblower’s Protection Act, MCL 15.362 makes it illegal to discharge, threaten or otherwise discriminate against an employee because the employee reports or is about to report a violation or suspected violation of law to a public body. The statute provides that under appropriate circumstances the employee may be awarded damages including lost wages and benefits and attorney fees. The statute also empowers the judge to order reinstatement and restoration of seniority.

Guy Vining of the Vining Law Group has been privileged to have been involved for both employees and employers in such cases. He notes that it is critically important in prosecuting such cases to move very, very quickly. The case must be filed within a mere 90 days or it is barred, according to MCL 15.363. While Guy Vining believes this to be a  unreasonably brief period, it has been upheld by the Michigan Court of Appeals in Cavell v. Spengler, 114 Mich App 76 (1985). Therefore, if you suspect that you are being discriminated because of whistleblowing, contact a knowledgeable employment law attorney, immediately.

At the Vining Law Group, initial telephone conferences with whistleblowers are free of any charge. Call Guy Vining and he will be happy to help you analyze whether you have a viable case.

Guy Vining has practiced law throughout the state of Michigan. His office is located in the city of Taylor, Michigan, where he primarily serves the Metro-Detroit area. He has represented employers and employees in employment litigation in the trial court and the appellate courts in the following areas: whistleblower, breach of contract, public policy, discrimination, wage and hour violation, covenants not to compete, Americans with disabilities action and retaliation

Negligence Cases in the News: Birth Injury Malpractice

Negligence Cases in the News
Birth Injury Malpractice

The San Francisco Chronicle has recently reported that a family from Staten Island, New York, was awarded $77,000,000.00 for birth injuries. Specifically, their daughter born 17 years earlier has suffered since birth a severe condition of cerebral palsy. Cerebral palsy is caused by oxygen deprivation to the fetus and results in profound and permanent handicaps to the child.

Hospitals and their staff are duty bound to monitor fetal health. When a breach of that duty results in an injury to a child, there is a claim against the staff and physicians and the institution responsible.

If you would like more information on medical or other professional negligence please feel free to contact Guy Vining. At the Vining Law Group, injured individuals are always welcomed to reliable and free consultation. These types of cases are normally prosecuted on a contingency fee basis so that you will not pay an attorney fee unless the case is successfully resolved.

Guy Vining, an experienced negligence attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Accident/Negligence Law: Defective Road Injuries

Accident/Negligence Law

Defective Road Injuries

Guy Vining has been legal counsel in many, many motorcycle, car, and truck crash/accident cases over the years. Elsewhere in the website you can read a lot of material about 1st party and 3rd party cases.

Vining Law Group has also represented motorcyclists and drivers in defective road cases. Many single vehicles and multiple vehicle crash/accident cases result from defective highways. Generally speaking, an individual may not sue the government for injuries because of a legal concept entitled “governmental immunity.” However, defective road cases are an exception to governmental immunity.

As the infrastructure deteriorates and local roads fall into greater despair and deterioration the hazards for motorists and, particularly, motorcyclists increase. Under MCL 691.1402 governmental units have a duty to maintain and reasonably repair roads so that they are reasonably fit and safe for public travel. This duty includes the responsibility to: inspect for possible damages, deterioration damage, repair, reinforce, correct and generally take reasonable precautions to protect motorcyclists and car drivers from foreseeable dangers.

If you or a loved one are injured due to a defective road you must take action quickly. The law requires that you provide a statutory notice within 120 days (about 4 months) from the accident. This notice is required by MCL 691.1404 and if notice is not timely and properly given it will bar your legal actions. You will also need to move quickly to obtain measurements and photographic evidence and an expert witness knowledgeable of road defects such as longitudinal cracking, traverse cracking, alligator cracking, deep and long wheel rutts in black top and other irregularities.

These conditions are particularly dangerous to bicyclists and motorcyclists. Please feel free to call for a no cost consultation if you or a loved one were injured on a defective road or highway. You need to speak to a personal injury attorney immediately. At the Vining Law Group all telephone conferences and initial meetings are free. Also, most personal injury representation is on a contingency fee basis so that you do not need to pay out of pocket for legal fees to get the help you need.

Guy Vining, an experience personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Accident/Negligence Law: Boating and Watercraft Injuries

Accident/Negligence Law
Boating and Watercraft Injuries

The San Jose Mercury News reported the death of a 16 year old girl in Hawaii which prompted a civil suit. The suit charged that a watercraft/jet ski crash was due to the negligence of another watercraft operator.

Guy Vining of the Vining Law Group has represented several injured individuals in the past in cases arising out of negligent operation of boats. It’s great to live in the Great Lakes area and enjoy water sport opportunities, however, individuals engaging in recreational activities are still held to a standard of care as to avoid actions which are foreseeably dangerous. In other words, an operator of a watercraft, just as the operator of an automobile, must operate in accordance with a duty to do so in a careful manner.
Due to the speeds often involved, as well as, wave and wind action, significant forces are often involved with boat and other watercraft accidents. Couple that with the absence of seat belts and other safety equipment and it is easy to see how negligent operations of boats and other watercraft equals a recipe for disaster. Mix in a bottle of cold beer or another alcoholic drink on a hot day and — a day which started with the broadest of smiles can end with a trip to the Emergency Room or worse.
If you or a loved one has been injured in a jet ski, boat, or other watercraft/boating accident and you would like to discuss your rights, call Guy Vining. Telephone conference and initial consultations are always free of charge. Usually, there is never an out-of-pocket attorney fee for personal injury cases as these matters are handled on a contingency fee basis.

Guy Vining, an experience personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Bankruptcy Cases in the News: State Exemptions #2

Bankruptcy Cases in the News

State Exemptions #2

In a recent blog which discussed that in the Schafer case (6th Cir., 11-1340) that the Michigan bankruptcy statute was approved by the appellate court as passing constitutional muster. Their decision not only is of assistance to Michigan debtors but was a blessing to the local bankruptcy attorneys and judges as it clarifies the law and resolves conflicting opinions. Now bankruptcy attorneys can give their client more definitive advice on exemption planning. It also assists the debtors and bankruptcy attorneys by avoiding litigation within the Bankruptcy Court, in relation to exemptions saving financial and judicial resources.

 

All of this, however, begs the question of what the important distinctions are with respect to exemption planning. This is a deep subject and well beyond the scope of a blog posting. However, there are some immediately apparent benefits for Michigan debtors that they can discuss with their bankruptcy attorney. First, across the board it appears that for unmarried Michigan debtors, who have home equity to be sheltered/exempted, that more can be accomplished under the Michigan Statute. See: MCL 600.5451 and compare to 11 USC § 522(d)(1). In addition, if the Michigan debtor is also a handicapped or elderly individual, the exemptions increase even higher.

 

If you are a Michigan resident contemplating a bankruptcy you should discuss these matters in detail with your bankruptcy attorney. Exemption planning is essential for you to receive the very best outcome in your case. As noted in the Schafer case (citing Grogan v. Garner, 589 U.S. 279 (1991)), the so-called Michigan bankruptcy exemptions statute’s broader exemptions will allow “bankruptcy debtors in Michigan…(to be better met) to achieve a fresh start and to obtain a new opportunity in life with a clear field… unhampered by the pressure and discouragement of preexisting debt.”

 

If you have any questions about exemption planning please feel free to call Guy Vining for a free consultation or another qualified bankruptcy attorney.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Bankruptcy Cases in the News: State Exemptions #1

Bankruptcy Cases in the News
State Exemptions #1

The 6th Circuit Court of Appeals decided a very interesting and debtor friendly case recently. In re: Steven M. Schafer, Case No.: 11-13401387, the 6th Circuit Court reversed lower court holdings that had determined that Michigan’s so-called “bankruptcy exemptions” were unconstitutional.

This is pretty esoteric stuff, but the bottom line is that Michigan has a general exemption statute and the so-called bankruptcy exemptions statute, the latter of which provide more generous exemptions for debtors. In filing a case a debtor in a state like Michigan (which has it’s own statute) must elect to proceed under federal or state exemptions. Earlier rulings struck down the so-called state bankruptcy statute holding in essence that it was an impermissible conflict of state and federal law for Michigan to have “bankruptcy” exemptions because only the U.S. Congress could create these laws as it is to do so under the U.S. Constitution and controls the entire bankruptcy field. One of the main arguments advanced for federal control was to give uniformity and not create conflicts from state to state.

The 6th Circuit disagreed, holding:

    Indeed, on an as-applied basis, the Michigan statute actually furthers, rather than frustrates, national bankruptcy policy. As the Supreme Court has repeatedly noted, the goal of the Bankruptcy Code is to provide debtors in bankruptcy with a fresh start. Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007) (“The principal purpose of the Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.”) By permitting debtors in bankruptcy a higher homestead exemption than either the general state exemption statute or the federal exemption statute allow, bankruptcy debtors in Michigan are better able to achieve a fresh start and to obtain “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Grogan v. Garner, 498 U.S. 279, 286 (1991). Accordingly, Michigan’s bankruptcy-specific exemption statute frustrates the full effectiveness of national bankruptcy policy no more than other statutory frameworks that have survived our scrutiny.

As noted in Schafer the so-called bankruptcy exemptions under MCL 600.5451 are substantially more generous to the debtor than it’s federal counterpart in 11 USC 522 (d)(1) or the general exemption statute MCL 600.6023. Indeed, with respect to home equity for an individual debtor (or homestead) it is double the federal statute for a 65 year old debtor or handicapped debtor. This is pretty good news for the debtor but makes things more difficult for the Trustee whose compensation is largely contingent upon the amount of money collected.

The bottom line is that elderly and handicapped debtors are really aided by this decision. These honest but unfortunate individuals will get a larger nest egg to embark on their fresh start with.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Bankruptcy Cases in the News

Bankruptcy Cases in the News

Early in August 2012, local Bankruptcy Court Judge Walter Shapero decided an interesting case that sheds light for lay-persons interested in debt relief and for local practitioners, too. This case is In re Kenneth C. Farkas and may be found at Case No.: 11-59772.

In this case a young-ish debtor with a sizeable 401(k) had taken loans against his 401(k) which required payments of around $850.00 to repay the 401(k) loans. On his Schedule I, debtor scheduled monthly loan repayment and that the net income after this and other expenses was less than $20.00. According to debtor therefore he was qualified for Chapter 7 relief – but, the Trustee objected and argued that under 11 USC 707(b)(3) and the totality of the circumstances that this deduction was unfair and should be considered disposable income to be shared with all creditors. Judge Shapero on the facts of this case agreed with the United States Trustee, noting:

    “Disposable income” is defined under the Bankruptcy Code as income received by the debtor which is not reasonably necessary for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. §1325(b)(2)(A)(i). This Court has explicitly rejected adopting a per se rule requiring the inclusion of 401(k) contributions in disposable income. In re Beckerman, 381 B.R. 841, 848 (Bankr. E.D. Mich. 2008). Instead, as is required by the plain language of §707 (b)(3) and this Court’s interpretation of the Sixth Circuit precedent, the reasonableness of the debtor’s expenses, including payments made into a 401(k), must be determined on a case-by-case basis looking at the totality of the debtor’s individual circumstances. Id at 848. In this case, the amount of Debtor’s existing retirement savings, as well as his age and time left until retirement, persuades the Court that his 401(k) loan repayments are not reasonably necessary for his maintenance or support, and are therefore includable in his disposable income.

Since the debtor had a sizeable retirement account and many years before his retirement the inclusion of the loan as a form of monthly disposable income was determined to be unfair to other creditors. Judge Shapero calculated that in a Chapter 13 plan the creditors would be more fairly treated and would receive about an 18% dividend. He noted that the Sixth Circuit Court of Appeals in re Behlke, 358 F.3d 429, 434 (6th Cir. 2004) had earlier determined that even a 14% dividend was a meaningful dividend.

Therefore, it was determined that the case must be dismissed – for ability to pay – or converted to a Chapter 13. It, again, bears nothing that the Bankruptcy Rules are designed to provide equitable treatment to all the actors. Therefore, where disposable income is being spent is fanciful ways or ways which discriminate against other creditors a discharge may be challenged as abusive. In such ceases, the debtor’s fresh start and discharge may be conditioned upon providing some disposable income via a Chapter 13 plan to all unsecured creditors over a period of 60 months.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Personal Injury Cases in the News

Personal Injury Cases in the News

The San Francisco Chronicle reported recently a large settlement in a case against a “distracted driver.” Specifically, the driver was preoccupied with texting and not paying attention to his duties of safe driving. The defendant- driver’s negligence caused catastrophic injuries including the loss of a leg.

At the Vining Law Group we have represented many, many accident victims of distracted drivers. The causes have ranged from applying make-up, dropping a cigarette, cell phones and the like. In Michigan an inattentive operator who causes personal injury and other damages from a collision is liable to pay for the losses caused. This is both at common law and for statutory violations. For instance, MCL 257.627 makes it unlawful to operate a vehicle in a manner that would not permit it to be stopped in the clear assured distance ahead; and, MCL 257. 626(b) makes it unlawful to operate without due diligence and circumspection so as to be likely to endanger others.

If you would like more information concerning your rights in automobile accidents or other personal injury matters, please feel free to contact Guy Vining for a free and confidential conference.

Guy Vining, an experience personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Bankruptcy Cases in the News

Bankruptcy Cases in the News

In previous blog postings we have discussed on many occasions the basic tenet that the honest debtor is entitled to relief of a discharge in bankruptcy. But what about those debtors that are dishonest or engage in risky behavior that implicate or harm others. The Bankruptcy Code provides for these types of cases in 11 USC 523 as exceptions to the general rule that in exchange for full disclosures and non-exempt assets that a debtor can obtain a complete discharge and a fresh start. In addition, a body of judge made decisions had also developed interpreting the various parts of 11 USC 523.

Most of the exceptions to discharge are common sense and are not surprising. For instance, debts arising from fraud, false pretenses, misrepresentations, luxury charges made on the eve of filing bankruptcy, child support, alimony, taxes and other types of intentional injuries. These are matters which evidence dishonorable conduct or a bad actor that should not be assisted.

In a very recent case Judge Walter Shapero of the U.S. Bankruptcy Court, Eastern District, Southern Division of Michigan decided a very interesting case. In that case it was fairly undisputed that the debtor was a very reckless driver of an automobile which led to an automobile crash causing personal injuries. When the debtor filed her bankruptcy In re Gumprecht, Case No.: 11-47982; Ad. Pro. No. 11-05909, the injured party objected to the discharge as being unfair based upon 11 USC 523(a)(6) a willfully caused injury. As mentioned the evidence showed that the debtor’s driving was horrendous but there was nothing to show that an injury was specifically intended or willful and malicious. Judge Sharpero held that the case must be reviewed under the standards announced in Kawaauhau v. Geiger, 523 U.S. 57 (1998) and in re Markowitz, 190 F3d 455 (6th Cir. 1999). As such, he stated:

    Until 1999, the Sixth Circuit’s standard for § 523(a)(6)’s “willful” requirement was rather lenient. As long as a debtor could be shown to have intentionally committed an act which led to an injury, he would be found to have acted “willfully” under § 523(a)(6), regardless of whether or not he actually intended the injury. Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir. 1987). Perkins was overruled in 1998 by the U.S. Supreme Court case of [Geiger]. In Geiger, the Supreme Court held that only acts done with the intent to cause the actually injury will rise to the level of a “willful and malicious injury” as used in § 523(a)(6): We now hold that unless “the actor desires to cause consequences of his act, or… believes that the consequences are substantially certain to result from it,” he has not committed a “willful and malicious injury” as defined under § 523(a)(6). [Markowitz, 190 F.3d at 464.]

Under the new standard the burden of proof is much higher for the creditor. For that reason Judge Shapero determined that the facts that the creditor could establish were insufficient and dismissed the objections to discharge.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Bankruptcy Cases in the News

Bankruptcy Cases in the News

In recent blogs we have discussed the necessity to scrupulous honesty in preparing all schedules with respect to a bankruptcy petition. It all goes back to the basic concept that it is only the honest debtor that is entitled to a discharge and a fresh start. In that regard, this post has to examine some federal cases which dealt with the concept of judicial estoppel.

Judicial estoppel is a common law concept for the protection of the Courts from a party seeking and obtaining a certain determination in one Court and then taking the opposite position in another Court.

Recently, the Michigan Court of Appeals, in Spohn v. Van Dyke Schools, examined such a case and affirmed (agreed with) the decision of a trial court judge, which dismissed the Plaintiff’s claim for employment discrimination. Specifically, the trial court judge determined that the Plaintiff had filed an earlier bankruptcy and failed to disclose in her Schedule B, statement of personal property, that she had a potential claim for an employment discrimination suit. When the Plaintiff received her discharge, it was based upon the representation that she did not have such a claim and that constituted a binding determination.

Plaintiff should have disclosed the claim. The bankruptcy trustee would then determine whether to bring the claims for the benefit of all the creditors or to abandon the claim, if it was weak. Clearly the Plaintiff knew she had a claim, failed to disclose it to the Bankruptcy Court, trustee or creditors and then filed the same later in another court.

The Michigan Court of Appeals stated the rationale as follows:

 The rationale for… decisions [invoking judicial estoppel to prevent a party who failed to disclose a claim in bankruptcy proceedings from asserting that claim after emerging from bankruptcy] is that the integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets. The courts will not permit a debtor to obtain relief from the bankruptcy court by representing that no claims exist and then subsequently to assert those claims for his own benefit in a separate proceeding. The interests of both the creditors, who plan their actions in the bankruptcy proceeding on the basis of information supplied in the disclosure statements, and the bankruptcy court, which must decide whether to approve the plan of reorganization on the same basis, are impaired when the disclosure provided by the debtors in incomplete.

 

*****

 

The debtor signed her bankruptcy petition under penalty of perjury. By doing so, she certified that she had no claims against the Defendants. It was the Debtor’s responsibility to verify the accuracy of the information contained in her schedules and statement of financial affairs and she “had the duty to carefully consider all of the questions posted and to see that they [were] completely and correctly answered.”

 

It is therefore a cardinal rule to always disclose. Making unnecessary disclosure will never hurt the honest debtor, but failure to disclose may very well be a source of trouble, including denial of discharge, judicial estoppel, and even criminal charges.
If you have a question about the Bankruptcy Laws, please feel free to call Guy Vining of the Vining Law Group for a no charge and confidential consultation.

 

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]