KempKlein

 

Kemp Klein Golf Outing to Benefit Forgotten Harvest

The Kemp Klein Foundation will host its inaugural charity golf outing on Monday, September 19, 2022 at the Links in Novi to benefit Forgotten Harvest. Forgotten Harvest delivers 144,000 pounds of surplus food per day to local charities, providing families in need with fresh and nutritious food free of charge. To register for the outing or to become a sponsor, please contact Robert Zawideh .

Full details are available here.


 


 

Brian R. Jenney presents at Institute for Continuing Legal Education: Elder Law Institute in Plymouth, MI on September 15, 2022

Mr. Jenney will discuss the differences between Developmentally Disabled Guardianships and Legally Incapacitated Individual Guardianships, alternatives to Developmentally Disabled Guardianships, Procedural Requirements, and the Interplay of Guardianship and Supportive Decision-Making.


 

You may contact Mr. Jenney at 248.740.5688 or via email.

 


 

Kemp Klein Welcomes Attorney Neal Nusholtz

Mr. Nusholtz specializes in all areas of Taxation, including Income Tax, Estate and Gift Taxation, Estate Planning, Business Transactions and Planning, Probate, Trust Administration, Audits, IRS Administrative Appeals, and Tax Litigation in Federal District Courts, the Michigan Tax Tribunal, the U.S. Tax Court, and the 6th Circuit Court of Appeals. He serves on several committees of the State Bar of Michigan, is a frequent lecturer for the Institute of Continuing Legal Education, and he was selected by Corp Magazine as one of the Top Ten Business Attorneys in Southeastern Michigan. 


 

You may contact Mr. Nusholtz at 248.740.5677 or via email.

 


 

Kemp Klein Welcomes Attorney William E. Haines II

Mr. Haines specializes in Estate and Trust Administration, Medicaid Asset Protection Planning, and Probate Litigation. He is currently a member of the Probate and Estate Planning and Elder Law and Disability Rights sections of the State Bar of Michigan. William treats each legal question with compassion and focus as he determines the most efficient and direct solution.  

 


 

 

You may contact  Mr. Haines at 248.740.5692 or via email.

 


 

Three Reasons to Resolve Conflict Outside of Court

The high cost of litigation and number of cases flooding the courts have many judges and attorneys using alternative dispute resolution (ADR) to significantly cut costs and improve the efficiency of the court system. Clients whose cases qualify for this process often find it simpler and easier than facing off in the courtroom.
 
What are the benefits of Alternative Dispute Resolution?
Alternative dispute resolution is an appealing option because it can be applied to virtually any type of civil case. In general, ADR involves a mediator, arbitrator, or panel of attorneys depending on the type of ADR chosen, who assists the parties in developing their own outcome to their unique disputes. Once in the courtroom, parties surrender that control over the outcome to the judge or jury to ultimately decide the case.
 
Reasons to settle disputes outside of court
Aside from the obvious reduction in cost, there are three main reasons ADR is more appealing than the formal litigation process. First, all types of ADR give the parties greater control over the procedure and outcome of their dispute than they would have in a courtroom. Next, in any type of ADR, parties have the freedom to add issues to their dispute when they arise as opposed to the courtroom where parties are tied to the issues stated in their pleadings. Last, ADR provides the parties with privacy that they would not have if their case were to be heard in court. The courtroom is generally open to the public, meaning anyone can walk into the courtroom and hear every detail of your case. Additionally, any papers that are filed with the court are also open to anyone upon request.
 
What is the difference between mediation and arbitration?
There are several types of ADR. Two of the most commonly used types are mediation and arbitration. We will discuss the details and benefits of each in future articles with relevant input from Joseph P. Buttiglieri, an attorney with 46 years of experience, 10 of which he has served as a certified mediator. In the meantime, if you are contemplating whether to address a legal issue but don’t want to drag it through the courts, contact us. We can provide information and options to help you move forward.


 

For further information regarding these matters, please contact Ms. Varlamos at 248.740.5662 or via email.

 


 

A Message from Brian H. Rolfe

I hope everyone is having a safe and relaxing summer. As usual, it has been busy around the Kemp Klein offices. Please help me welcome two attorneys who joined the firm this month: William E. Haines II and Neal Nusholtz. I would also like to congratulate Joseph P. Buttiglieri, Alan A. May and Ron Nixon on their recent court victories and accomplishments.
 
In this issue of the Commentator, we highlight our Alternative Dispute Resolution practice. This area of the law continues to heat up as clients increasingly choose to manage disputes outside of court. Our mediators are highly skilled and have excellent reputations in the courtroom setting as well as the ADR arena.
 
There are many great things happening at Kemp Klein this summer and we plan to continue this momentum throughout the rest of the year.

 


 

Business Buyers Face Expanding Liability Risks

By Ed Sadik

Business Buyers can find themselves with an unexpected, expensive surprise when a court makes them pay up for the Seller’s liabilities, especially employment law violations.  A recent case expands the list of Seller liabilities that a Buyer could end up paying the bill for. Buyers should carefully plan to assess and mitigate those risks, especially if the Seller is experiencing financial difficulty.  

Generally, the Buyer of a corporation’s assets does not assume the Seller’s corporate liabilities. But there are exceptions to the rule. The Supreme Court imposes successor liability on asset Buyers in employer-employee contexts. Specifically, a Buyer may be bound by a Seller’s collective bargaining agreement or liable for a seller’s unfair labor practices. Other Federal Courts have expanded the doctrine of successor liability to delinquent pension fund contributions under ERISA, the Fair Labor Standards Act (minimum wage and overtime), the Family and Medical Leave Act, and Title VII of the Civil Rights Act. 

A court looks at two things before it imposes successor liability on a Buyer: 

  1. the Buyer’s awareness of the Seller’s liability; 
  2. a substantial continuity of identity in the business enterprise. 

There are no hard and fast rules when it comes to evaluating substantial continuity. It depends on all the circumstances, but courts typically look at the similarity of the new business to the old, as well as the type of liability at question. 

Recently, a Second Circuit Court was asked to expand the doctrine of successor liability to hold an asset buyer liable for its predecessor’s withdrawal liability under the Multiemployer Pension Plan Amendment Act (MPPAA). The MPPAA amended ERISA to provide that if an employer withdraws from a multiemployer plan, it is liable for its portion of unfunded vested benefits. This was adopted to reduce the burden on the plan and remaining participants, protect the financial solvency of multiemployer plans, and to ensure employees do not lose their retirement benefits. 

In New York State Teamsters Conference Pension and Retirement Fund V. C&S Wholesale Grocers, Inc., 24 F.4th 163 (Jan. 27, 2022), the Defendant, C&S, bought most of the assets of Penn Traffic, a grocery wholesale business, excluding a warehouse in Syracuse and the warehouse employees who were members of the Plaintiff multiemployer union. Penn Traffic continued to operate the Syracuse warehouse and employ the Plaintiff union member employees. Penn Traffic went bankrupt and pulled out of the Plaintiff multiemployer pension plan, creating significant withdrawal liability. The Plaintiff sued to collect Penn Traffic’s withdrawal liability from C&S on the doctrine of successor liability. The Court easily found that an asset Buyer could be liable for a Seller’s withdrawal liability under the doctrine of successor liability. Because Federal Courts already used  the successor liability doctrine to make Buyers pay for Sellers’ delinquent pension fund contributions under ERISA, the Court had no trouble expanding the reach of successor liability to include withdraw liability under the MPPAA. In the Court’s words:

The primary reason for making a successor responsible for its predecessor’s delinquent ERISA contributions is that, “absent the imposition of successor liability, present and future employer participants in the union pension plan will bear the burden of the predecessor’s failure to pay its share,” which will threaten the health of the plan while the successor reaps a windfall. That rationale applies with equal, if not greater, force to a predecessor’s MPPAA withdrawal liability. 

But the case also contains good news for Buyers: the Court held that C&S could not be liable for Penn Traffic’s withdraw liability, because C&S did not buy the Syracuse warehouse and did not hire the employees who work there (the withdrawal liability related to those employees). Because C&S was not Penn Traffic’s successor to that business it was not on the hook for Penn Traffic’s withdraw liability.   

Buyers should carefully investigate and assess employment related exposures as part of due diligence. And when risks pop up, Buyers should mitigate them appropriately. If the Teamsters opinion tells us anything, one way to do that is to carve out riskier business units altogether. Sometimes that’s not practical, and that’s when a quality legal team can help you control the risk. 


For further information regarding these matters, please contact Mr. Sadik at 248.740.5664 or via email.

 


 

Faith Gaudaen has a successful track record with conflict resolution in the areas of contract negotiations, business ownership disputes, employment issues, real estate matters and family disputes over elder care and will/trust administration. Clients and colleagues appreciate Faith for her calm, experienced presence throughout negotiations.

 


 

Faith Gaudaen has a successful track record with conflict resolution in the areas of contract negotiations, business ownership disputes, employment issues, real estate matters and family disputes over elder care and will/trust administration. Clients and colleagues appreciate Faith for her calm, experienced presence throughout negotiations.

 


 

By Casey W.Callahan

With so many hours spent on email, social media and other internet activities, it might feel as if your whole life is lived online. But have you ever wondered what will happen to your accounts and photos when you pass away? How will loved ones communicate about your passing, access photos of you, or wrap up unfinished business? The simple answer: you can leave instructions describing your wishes.

Written instructions in your estate planning documents can help your executor or trustee access your digital legacy post-death. A digital legacy may include accounts on Facebook, LinkedIn, Instagram, or Twitter as well as blogs, licensed domain names, music, photos, files you store online and access to financial accounts.

In recent years, laws have been enacted to facilitate the transfer in ownership of digital accounts. The most notable of which for Michigan residents is the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA” or the “Act”). This Act provides individuals an ability to empower a fiduciary – such as an executor or trustee – to receive disclosure of the individual’s digital assets from the entity that runs or operates the account (also known as the “custodian” of the account). For example, Apple is the custodian of iCloud.

Under the Act, a properly empowered fiduciary would have the ability to petition the account’s custodian for access to the deceased’s account and its contents. Critically, the access granted pursuant to RUFADAA must be in the form of the deceased individual expressly authorizing access within their will, trust, or power of attorney.

The process of efficiently and adequately transferring many digital assets is still in its infancy. With this in mind, there are proactive steps an account owner should take while still alive to expedite access to digital accounts once deceased. For example, it is one thing to have the legal authority to gain access to an account, and quite another to have current direct access with username and password to identify and unlock the account. Thus, it is advantageous to also provide the fiduciary with login information for digital accounts.

Putting login names and passwords in writing does not come without a degree of risk, and caution should be utilized in sharing this sensitive information. If you have concerns about providing your fiduciary with account login information while you are still living, you should discuss safeguard options with your estate planning attorney. At a minimum, the fiduciary should have a username, or the equivalent, to identify the account in question to petition for access.

While the RUFADAA is useful, it is even more advantageous if the fiduciary does not have to rely on the Act at all. This can be done by using online tools directly through the account custodian. These online tools are a relatively new phenomenon but are becoming increasingly commonplace, as account custodians grapple with how to adequately balance account owner privacy against many owners’ desires to transfer digital accounts and contents once the owner is no longer living.

The functionality of these online tools varies from custodian to custodian, but the intent broadly remains the same. At its core, an online tool provided by a custodian allows an account’s owner to identify individuals that are permitted to access the owner’s account in the event of the owner’s death.

One of the more robust versions of this can be found in Google’s Inactive Account Manager. There, the account owner can decide on a time period of inactivity, at the end of which the Inactive Account Manager kicks in. The owner also identifies up to ten people that are to be notified once the period of inactivity has run. The tool applies to all Google products, meaning that the owner can choose which of the identified people receive access to which accounts.

Another notable online tool is the Apple iCloud Digital Legacy, a recent addition to Apple software. There, the iCloud account owner can choose up to five people that can access and download the account’s data after the owner’s death. This has been a highly sought-after feature because users often store the bulk of their pictures in the cloud, often making those memories difficult to access following the death of the account owner.

As our lives become further documented online, it is imperative that you work with your estate planning attorney to ensure digital accounts are included in a comprehensive estate plan. A combination of proper estate planning techniques and use of custodian online tools will help to ensure your digital legacy is accessible to your loved ones.


For further information regarding these matters, please contact Mr. Callahan at 248.740.5683 or via email.