The gift card law as highlighted in the below article is a good effort by the state legislature to protect consumers in the state of Michigan. While the intent and content of the law is excellent, it does not protect against a situation where a consumer is holding a gift card for a bankrupt business or a business which is no longer operating. If a business discharges its liabilities in Chapter 7 and ceases to exist, the gift card will be of no value. The best practice for individuals receiving gift cards is to spend them as soon as possible.

- Dan Penning
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Gift cards to last for five years thanks to new state law
MARY BETH ALMOND C & G Staff Writer
Published: November 12, 2008
Michiganders will have at least five years to use the next gift card or gift certificate they receive, thanks to a new state law, effective Nov. 1. The three-bill package also prevents retailers from altering the terms or conditions of a gift card or certificate after it has been issued, prohibits inactivity and other fees, and requires retailers to accept gift cards and certificates during a special sale, closeout or liquidation.

Gov. Jennifer Granholm, who signed the legislation in July, says gift cards are a worry-free solution to gift giving that consumers should be able to enjoy freely.

“This is a way of protecting wallets and making sure that consumers are getting the most from their dollars as we head into this busy shopping season,” she said in a statement.

The requirement applies only to new gift cards or certificates sold on or after Nov. 1, just in time for the holiday shopping season. It does not apply to gift cards issued by banks or financial institutions.

Birmingham retail consultant Ed Nakfoor expects the popularity of gift cards to increase this year, as notions that the plastic presents are impersonal go out the door.

“Years ago, people might have thought twice about giving a gift card because it didn’t really seem like a traditional gift, but I think that stigma has certainly passed.

Even the way a gift card is presented has changed. It used to be a paper certificate, now it’s an actual card that is, oftentimes, in an attractive box, so it looks like more of a traditional gift,” he said.

A survey for the National Retailer Federation estimates that about 54.9 percent of consumers would like to receive a gift card for the holidays this year, which is up slightly from 53.8 percent last year. It also projected that gift cards would be the most requested gift this year, followed by books, CDs, DVDs, videos and video games, and clothing or accessories.

“The convenience factor can’t be beat, and I think that the stores like them because they’re getting someone in their store, and oftentimes that person will spend more than the amount on the gift card, so it’s definitely a plus for the merchants,” Nakfoor said.

Consumers can report violations of the gift card law to the state Consumer Protection Division at (517) 373-1140, or www.michigan.gov/ag.

You can reach Staff Writer Mary Beth Almond at malmond@candgnews.com or at (586) 498-1060.

Gift card and gift certificate guidelines and tips

When buying a gift card or certificate, make sure you only make purchases from a reputable source and pay close attention to the following:

Purchase use or restrictions.

Expiration date.

All fees.

Replacement policy for lost or stolen cards.

Inspect the card before you buy it.

Ask for an extra receipt.

Source: Attorney General Mike Cox Consumer Alert

By Karey Wutkowski

WASHINGTON (Reuters) – The federal agency that insures most U.S. bank deposits unveiled a plan to prevent about 1.5 million home mortgage foreclosures by promising to share any losses with mortgage companies that agree to refinance certain home loans.

The agency, the Federal Deposit Insurance Corp, said on Friday the plan would cost the government about $24.4 billion, which could be paid from the U.S. Treasury’s $700 billion bailout program for the financial industry.

So far, most of the money in the bailout program, the Troubled Asset Relief Program, or TARP, has been injected as capital into banks.

FDIC Chairman Sheila Bair, who spent weeks unsuccessfully lobbying Bush administration officials for the foreclosure prevention plan, unveiled her agency’s proposal two days after Treasury Secretary Henry Paulson dismissed the idea of the government underwriting failing home loans.

Paulson told reporters on Wednesday, “That (foreclosure plan) is a subsidy, or spending, program. The TARP was investment, not spending.”

The FDIC pushed forward with its plan, posting it on its website Friday morning (http://www.fdic.gov/consumers/loans/loanmod/index.html).

“Although foreclosures are costly to lenders, borrowers and communities, the pace of loan modifications continues to be extremely slow,” the FDIC said. “It is imperative to provide incentives to achieve a sufficient scale in loan modifications to stem the reductions in housing prices and rising foreclosures.”

The FDIC said its plan would modify about 2.2 million mortgage loans by offering financial incentives to mortgage servicers. It would pay servicers $1,000 to cover expenses for each loan modified to the required standards, and would promise to share up to 50 percent of losses incurred if a modified loan defaults.

Eligible borrowers would include those who have missed at least two monthly payments on loans for homes they live in. Servicers would be expected to lower those borrowers’ monthly payments to about 31 percent of the borrowers’ monthly income.

The Treasury Department said on Friday that it was aggressively looking at ways to reduce skyrocketing home foreclosures under the TARP.

“We continue to aggressively examine strategies to mitigate foreclosures and maximize loan modifications, which are a key part of working through the necessary housing correction and maintaining the strength of our communities,” Treasury Interim Assistant Secretary Neel Kashkari said in testimony prepared for delivery to a U.S. House of Representatives committee.

Link to Original Reuters Article: (Reporting by Karey Wutkowski; editing by John Wallace)

Michigan Film Discussion Planned for November 5 in Charlevoix
(NORTHERN MICHIGAN | October 27, 2008) – Film producers from all over the United States are looking to Michigan as a prime venue for their upcoming projects, thanks to 40% tax incentives introduced back in April. Securing the projects is just half the battle, however. The success or failure of this program lies within the communities of Michigan who must be able to provide goods and services, with an unparalleled level of expertise, teamwork and communication.

On Wednesday, November 5, a group of concerned individuals with ties to the film industry – known collectively as the Northern Michigan Film & Media Group – is hosting an informational discussion geared toward chambers of commerce, visitor bureaus, economic development organizations, businesses and individuals interested in learning more about the incentives and the potential it provides for Michigan. The session will be held at Stafford’s Weathervane Restaurant in Charlevoix. A social hour for networking will start at 5pm, with a formal round-table discussion and Q&A session starting at 7pm.

Dianna Stampfler, President of Promote Michigan and a Board member of the West Michigan Film Video Alliance, will be the moderator for the evening’s discussion.

“Since the incentives were introduced, everyone is trying to capture a piece of the action and become an expert in the industry,” said Stampfler. “It’s important that Michigan’s businesses, organizations and communities work together to make this industry a viable part of our state’s future economic foundation. I invite anyone who is passionate about Michigan’s future and our growing film industry to attend this session to learn more.”

Some California industry executives have been invited to participate in the session, including George Colburn, a historian and filmmaker, with offices in Petoskey, New Mexico and Washington DC, who will be a featured panelist for the evening.

“It is critical that Northern Michigan start immediately to establish itself by organizing collaborative coalitions of communities, businesses and individuals to showcase their inventory of assets,” Colburn said. “By working together, northern Michigan can soon earn a preferential position with the film industry, and everyone involved can profit from the designation.”

As additional incentives for attendees, Stafford’s Weathervane Restaurant will be offering a dining special for those arriving prior to 7pm; special rates are being offered at the Weathervane Terrace Inn & Suites ($39 for a standard room or $59 for a Lake Michigan Suites). For room reservations and special rates, call (231) 547-9955 and mention that you’re a film industry attendee.

For additional information about the November 5 event, contact (231) 535-2227.

Joe Breidenstein, BIG Marketing Director
(231) 535-2227 / info@springtimesplendor.com
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Dan A. Penning
Wright Penning & Beamer
Farmington Hills and Suttons Bay, Michigan
231-271-4500

The recent decision by the Federal District Court in the Siesta Village Market case was the inevitable next step in an evolution of courts removing restrictive laws that restrain Michigan’s residents from engaging in free trade for the purchase of wine.

As the article recites, the first major step in repealing the State’s attempt to block its residents from enjoying the benefits of competition in price breaks when purchasing wine was through the court’s ruling in the Granholm v Heald case in 2005. When that case was decided, Michigan’s attorney general cautioned that the remaining law preventing out-of-state retailers from shipping wine directly to Michigan residents was likely unconstitutional and would, at some point, come under attack. That time came when Siesta Village Market sued the governor and the attorney general and has now prevailed.

The question becomes why the Michigan legislature has been slow to act with respect to addressing laws affecting the purchase and distribution of wine in Michigan when Michigan’s own wine industry has experienced explosive growth within the last five years. The inaction of the legislature which necessitated the filing of expensive and time-consuming lawsuits suggests that there is either a void with respect to the wine industry being heard by state representatives and senators or information is being presented and simply ignored. In either case, the significant increase in shipments by Michigan wineries and retailers to businesses and individuals throughout the country and the receipt of such shipments from out-of-state wineries and retailers necessitates some clear direction from our legislature for the future of the wine industry in our state. The time has come for the legislature to give priority to the wine industry and its related regulatory laws.

From Wine Spectator:

In Michigan, Federal Court Gives Out-of-State Retailers Same Shipping Rights as Wineries
State’s ban on retailer shipping is ruled unconstitutional; judgment is stayed but residents begin ordering wine from out-of-state retailers
Robert Taylor
Posted: Tuesday, October 14, 2008

A federal judge has struck down Michigan’s law permitting in-state retailers to ship wine directly to private residences but banning out-of-state retailers from doing the same, ruling it unconstitutional. The Sept. 30 decision, which effectively throws out Michigan’s retailer shipping regulations, was stayed on Oct. 7 while attorneys for the Michigan Beer & Wine Wholesalers Association considered whether to appeal or begin lobbying for new legislation to bring the state into compliance.

Since the landmark 2005 Supreme Court ruling Granholm v. Heald declared that a state would be in violation of the Constitution’s Commerce Clause if it treated in-state and out-of-state wineries differently in regard to shipping rights, state legislators have been gradually drafting new laws—some of which have triggered new suits. The 2005 decision did not address the rights of retailers, however. In many states, it is illegal for an out-of-state retailer to ship wine to residents. And while many large retailers have been fighting for legislation giving them the same rights wineries now have, many others have simply ignored the laws, which are inconsistently enforced.

Florida-based wine retailer Siesta Village Market, along with Michigan residents Joseph Chess and Terry Fowler, filed the lawsuit in United States District Court against Michigan Gov. Jennifer Granholm and Michigan Attorney General Mike Cox, challenging Michigan’s ban. (Siesta Village Market was the plaintiff in a similar case decided in Texas this past January; Gov. Granholm was also the defendant in the Supreme Court’s Granholm v. Heald decision.)

In her September decision, Federal Judge Denise Page Hood wrote, “The state’s argument that the 21st Amendment [repealing Prohibition] gives it the authority to regulate alcohol coming into the state and the three-tier system it has designed for regulatory purposes is flawed. Plaintiffs have shown that Michigan’s ban on direct shipments of wine from out-of-state retailers to consumers discriminates against out-of-state interests.”

Indianapolis-based attorney Robert Epstein, who represented the plaintiffs and has worked on the case for two years, agreed to the stay, and called any decision to begin shipping to Michigan residents to be “presumptive.” (Epstein was also involved in last year’s Siesta Village Market v. Perry decision in Texas, which also ruled that states could not discriminate between in- and out-of-state retailers but is currently under appeal because the presiding judge in that case instituted a new law with his ruling, which critics have called untenable.)

Others had a different interpretation of the ruling. “[Michigan] is enjoined from enforcing any laws whatsoever concerning the prohibition on out-of-state retailers, which means out-of-state retailers may begin shipping into Michigan,” said Tom Wark, executive director of the Specialty Wine Retailers Association.

For Michigan and Texas residents, however, the stays and appeals appear to be irrelevant, as out-of-state retailers such as Wine.com are shipping to them directly, despite the interpretation of many that the practice is still technically illegal.

“We’re already serving Michigan customers,” said Wine.com CEO Rich Bergsund after the ruling was handed down. That Michigan residents can now legally receive wine shipments from out-of-state retailers is “absolutely our interpretation [of the ruling]. This is a federal court finding that it’s unconstitutional to treat outside retailers differently from in-state retailers on direct shipping,” he said. (Wine.com is one of the few online retailers that does set up a brick-and-mortar warehouse in many of the states to which it ships, though it did not ship to Michigan residents prior to the Sept. 30 ruling.)

“More important than the legal [issues are] the practical issues: [In] most states that don’t allow direct shipping from out of state, it’s happening anyway,” Bergsund said. “By opening up, [those states] can charge sales tax, and you can require people to get a license so you have some control over what’s going on.”

Michigan residents aren’t the only ones benefiting from the confusing state of shipping laws. Residents in many “no-ship” states have little difficulty receiving shipments from out-of-state retailers despite the laws. “There’s been people [shipping wine to Michigan residents] illegally forever,” said Mike Lashbrook, president of the Michigan Beer and Wine Wholesalers Association. “That’s nothing new. Some of these folks, their disregard for the laws are truly amazing.”

“[We] believe that between the wine brands currently approved for sale in the state and the currently 420-some wineries throughout the country that have direct-shipping permits, the consumers have tremendous variety and choice,” Lashbrook said.

While the virtual lack of enforcement of wine-shipping laws is a boon to residents and retailers willing to practice civil disobedience (and enjoy wine), it makes the cause of retailers working to enact proper legislations and play by the rules more difficult—retailers willingly subverting shipping laws are less likely to draw attention to themselves by joining the retailer association.

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Dan A. Penning
Wright Penning & Beamer
Farmington Hills and Suttons Bay, Michigan
231-271-4500

Kentucky Judge Rules: Forfeit Gambling Domains
By Mike Sachoff – Fri, 10/17/2008 – 6:44pm.

They can keep domains if they just block Kentucky!

WebProNews has just received the 44-page order and opinion from Franklin County Circuit Court Judge Thomas Wingate regarding the seizure of 141 online gambling domain names.

Like China, Kentucky is now trampling on the freedoms of the citizens of the Commonwealth by blocking domains that are legal in most parts of the world.

In essence, the Judge has ruled that the domains related to online gambling operations will be seized by the State of Kentucky unless the sites somehow block access of their domains by those within Kentucky state lines. The Judge, who by all accounts does not understand the Internet, doesn’t care about how this impacts Internet business internationally stating, “This doomsday argument does not ruffle the Court.”

Since WebProNews and its parent iEntry, Inc. are based in Kentucky we are sensitive to how this ruling will be perceived in the rest of the country and the world. It’s not like Kentucky doesn’t already have misguided perceptions that we are backward from the left and right coasts in the USA. The Kentucky State Judge doesn’t seem to mind that domains are not gambling devices, and that they are owned by predominantly international businesses where gambling is totally legal.

Also, one would think that the Judge would realize that most of these domains set to be seized don’t actually allow web-based gambling, but rather they link to downloadable software that players can download which don’t connect to the seized domains at all.

The following is the conclusion of Judge Wingate’s ruling thus far and he has set a final hearing on the forfeiture of the domain names for November 17.

Conclusion And Order
We note that Opposing Groups and Lawyers argue any judicial
interference of the Internet will create havoc. This doomsday argument
does not ruffle the Court. The Internet, with all its benefits and
advantages to modern day commerce and life, is still not above the law,
whether on an international or municipal level. The challenge here is
to reign in illegal activity and abuse of the Internet within the
framework of our nation’s and Commonwealth’s existing common law norms
and principles, until express guidelines from sate and federal
legislative bodies say other wise.

ACCORDINGLY, IT IS HEREBY ORDERED that further proceedings will be held
in the instant civil forfeiture action without delay. Moreover, IT IS
HERBY ORDRED AND ADJUDGED as follows:

1. The Motions to Dismiss filed on behalf of the Group of 7, the
Group of 2, of Interactive Gaming Council, of Interactive Media
Entertainment & Gaming Association, INC., are all hereby DENIED.
2. The Motion of the Interactive Gaming Council to intervene is
DENIED.
3. The Court’s Seizure Order of September 18, 2008 is herby AMENDED
so that any of the Defendants 141 Domain Names, their respective
registrants or their agent, or any other person with an interest or a
claim who, on or before 30 days from entry of this Opinion and Order,
installs the applicable software or device, i.e., geographic blocks,
which has the capability to block and deny access to their on-line
gambling sites through the use of the Defendants 141 Domain Names from
any users or consumers with the territorial boundaries of the
Commonwealth, and reasonably establishes to the satisfaction of the
Kentucky’s Justice and Safety Cabinet or this Court that such
geographical blocks are operational, shall be relieved from the effects
of the Seizure Order and from any further proceedings in the instant
civil forfeiture action. The Court acknowledges that in ren
jurisdiction is not unlimited. Once the domain name is satisfactorily
shown as not being used in the Commonwealth for illegal or unlawful
gambling, this Court relinquishes jurisdiction.
4. Upon showing of proof that geographic blocks and/or such other
similar software or device have been installed and are operational by
any registrant or person with interest over any of the Defendants 141
Domain Names, the COMMONWEALTH is herby DIRECTED to serve prompt
written notice upon the registrar/s and/or registry/ies of the
corresponding defendant Internet Domain Name that the Seizure Order, as
to the said relevant Internet domain name, has been withdrawn or
rescinded.
5. The Court hereby sets the final hearing on forfeiture on the 17th
of November 2008, at 10:00 a.m./ EST.
6. The Seizure Order of September 18, 2008 REMAINS IN EFFECT as
amended by this order.

SO ORDERED, this 16 day of October 2008.

The original source of this article is: http://www.webpronews.com/topnews/2008/10/16/kentucky-judge-affirms-forfeiture-of-gambling-domain-names

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Dan A. Penning
Wright Penning & Beamer
Farmington Hills and Suttons Bay, Michigan
231-271-4500

The Michigan Court of Appeals recently decided that a child’s right to sue for a personal injury is not prohibited, even if that child’s parent or legal guardian signed a waiver of liability form. The case involved a 5-year-old child who broke his leg jumping from an inflatable slide at an indoor commercial “bounce facility”.

The Court of Appeals applied a common law rule that, “in Michigan, a parent has no authority merely by virtue of the parental relation to waiver, release or compromise claims of his or her child. Generally speaking, the natural guardian has no authority to do an act which is detrimental to the child.” The holding, then, is that absent a specific statutory exception to the common law rule, a parent may not bind his or her child to a pre-injury waiver of liability for injuries incurred in either a commercial or non-profit setting.

Unless the Michigan legislature enacts new law to address this situation, the ruling by the Court will have significant impact on both commercial recreation endeavors, schools and non-profit organizations including churches. For more information regarding this case, please contact us at 231-271-4500.

Dan A. Penning
Wright Penning & Beamer
Farmington Hills and Suttons Bay, Michigan
231-271-4500

The information contained in this publication is meant for informational purposes only and is not intended as legal advice. Laws and their application vary based upon a client’s unique facts and circumstances. Wright Penning & Beamer disclaims any responsibility for action taken in reliance on this publication without further consultation and analysis. For questions, please contact us at (231) 271-4500 or at dpenning@wrightpenning.com.

Attorneys Dan A. Penning and Dirk A. Beamer have been appointed as members of the Fellows of the Michigan State Bar Foundation which is an honor reserved for only 5% of the active lawyers in Michigan, recognizing outstanding legal ability and devotion to the welfare of the community, state, and nation.

Dan A. Penning
Wright Penning & Beamer
Farmington Hills and Suttons Bay, Michigan
231-271-4500

The information contained in this publication is meant for informational purposes only and is not intended as legal advice. Laws and their application vary based upon a client’s unique facts and circumstances. Wright Penning & Beamer disclaims any responsibility for action taken in reliance on this publication without further consultation and analysis. For questions, please contact us at (231) 271-4500 or at dpenning@wrightpenning.com.

Know Your Business

Suttons Bay – August 2008

If you were a previous client of Stuart Hollander who transferred your file to our firm, you received a letter indicating that I would be happy to meet you, even if you do not have a current need for services. I have met with several clients and enjoyed the opportunity to get to know them and learn more about how Stuart may have helped them. If you have not taken the opportunity to meet me, please do not hesitate to contact me to schedule a time to meet. Please feel free to call the office in Suttons Bay at 271-4500. It would be my pleasure.

Thank you, Dan A. Penning

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The information contained in this publication is meant for informational purposes only and is not intended as legal advice. Laws and their application vary based upon a client’s unique facts and circumstances. Wright Penning & Beamer disclaims any responsibility for action taken in reliance on this publication without further consultation and analysis. For questions, please contact us at (231) 271-4500 or at dpenning@wrightpenning.com.
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Know Your Business

Suttons Bay – August 2008

We are pleased to have recently launched a new firm website containing updated information on both firm locations in Suttons Bay and Farmington Hills. The website address is www.wrightpenning.com.

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The information contained in this publication is meant for informational purposes only and is not intended as legal advice. Laws and their application vary based upon a client’s unique facts and circumstances. Wright Penning & Beamer disclaims any responsibility for action taken in reliance on this publication without further consultation and analysis. For questions, please contact us at (231) 271-4500 or at dpenning@wrightpenning.com.
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The New Law Offices in the Suttons Bay Depot of Wright Penning & Beamer!

Our July 1, 2008 official grand opening ribbon cutting ceremony celebrated with the Leelanau County Chamber of Commerce and many of our friends and family members.

It was a perfect summer day in Suttons Bay to have an outdoor event! The sun was out and even though there was a strong westerly wind coming over the hills surrounding Suttons Bay everyone had a nice time.

It was great to see so many people taking time from their busy schedules to help us celebrate our ribbon cutting ceremony. Many came in from the orchards where the annual cherry crop is being harvested, or left their pruning shears in the vineyards for a few hours, the tasting roooms of their wineries in the care of their employees to spend some time with us and their neighbors. Not to mention those who traveled up from their offices in Traverse City and others who also came in off the the golf courses to help us mark this important occasion.

Thank you for welcoming us into the Suttons Bay business community!

Dan A. Penning, Attorney
Suttons Bay Depot