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Federal Circuit and State Appellate Experience

CHAIR:  MATTHEW T. NELSON

WNJ Appellate Practice Group attorneys argued numerous cases in the Michigan Supreme Court, including four cases in the most recent term. These cases included tax matters, challenges to numerous Michigan statutes and employment disputes. We have also litigated more than 100 cases in the Michigan Court of Appeals, including a billion-dollar securities action, multimillion-dollar commercial disputes, and groundbreaking rulings on behalf of individuals, companies, and state and local governments in cases involving environmental law, statutory construction, and constitutional challenges.

Our attorneys also have extensive experience arguing in the federal courts of appeal, particularly the Sixth Circuit. Cases include reversals of adverse trial court judgments in multimillion-dollar contract disputes and securities actions, and a landmark ruling in a Sixth Circuit CERCLA contribution action. Representative matters include:
 
Administrative Law
Automotive
Bankruptcy
Business/Contract Litigation
Constitutional/Public Law
Criminal
Energy
Environmental Law
Financial Institutions
Insurance
Intellectual Property
Labor and Employment
Natural Resources/Oil & Gas
Personal Injury/Insurance
Real Estate
Religious Liberty
Tax
Tort/Product Liability
Trusts & Estates
Zoning

Administrative Law
  • National Wildlife Federation v. Michigan Department of Environmental Quality, No. 11-123-AA (Mich. Cir. Ct. Nov. 21, 2011) (persuaded the court to deny an injunction against underground mine’s blasting operations pending appeal and then affirm the decision by MDEQ to grant a Part 632 non-ferrous metallic mineral mining permit)
  • Aggregate Industries - Central Region v. Waterloo Township, 09-01248-AA (Jackson Cir. Ct. July 9, 2009) (persuaded the circuit court to grant an expedited appeal, reverse the township’s adverse zoning decision, and grant a special land use application for mining)
  • Michigan Association of Home Builders v. Director of Department of Labor & Economic Growth, 750 N.W.2d 593 (Mich. 2008) (successfully represented amicus curiae Michigan Manufacturers Association regarding scope of an administrative record on appeal)
 
Automotive
 
  • RSM Richter v. Behr America, Inc., 729 F.3d 553 (6th Cir. 2013) (reversing district court’s refusal to reopen case which had effectively stymied client from obtaining benefit of $2.6 million judgment)
  • Keiper, LLC v. Intier Automotive Inc., 467 Fed. App’x 452 (6th Cir. 2012) (successful reversal of summary judgment in automotive supply dispute involving alleged defective recliner seats)
  • NSK Corp. v. Robert Bosch Corp., 2009 WL 454940 (Mich. Ct. App. 2009) (persuaded the Michigan Court of Appeals to compel arbitration in an automotive supply dispute)
  • Robert Bosch Corp. v. ASC Inc., 2006 WL 2595301 (6th Cir. 2006) (persuaded the Sixth Circuit to bind party to standard terms and conditions that it had never seen or received)
  • American Bumper & Manufacturing Co. v. TransTechnology Corp., 652 N.W.2d 252 (Mich. Ct. App. 2002) (Michigan Court of Appeals used § 2-607 notice provision of the Uniform Commercial Code to dismiss $9 million claim against parts supplier arising from an automotive recall)
 
Bankruptcy
 
  • Frontier Energy, LLC v. Aurora Energy, Ltd., 2013 WL 1289362 (W.D. Mich. 2013) (affirming bankruptcy court’s disallowance of $1.5 million claim filed by lessor in oil and gas royalty dispute)
  • Hindelang v. Taunt (In re MQVP, Inc.), No. 10-10982 (E.D. Mich. 2010) (affirming bankruptcy court's confirmation of trustee’s settlement of client's multimillion-dollar trademark dispute with debtor)
  • Pilch v. Bareham (In re Pilch), 2009 WL 2707374 (6th Cir. 2009) (successful representation of bankruptcy trustee in Sixth Circuit appeal disputing trustee’s compensation)
  • Ad Hoc Committee of Series A Convertible Shareholders v. Lothian Oil, Inc., No. MO-08-CA-074-H (W.D. Tex. 2009) (successful assertion of the equitable-mootness doctrine, resulting in affirmance of a bankruptcy court’s confirmation order approving a contested, multimillion-dollar settlement agreement)
 
Business/Contract Litigation
 
  • New River Construction v. National Management & Preservation Services, LLC, 2015 WL (Mich. Ct. App., July 21, 2015) (successfully overturned a half-million dollar default judgment and stymied the plaintiff's attempts to enforce the judgment pending appeal)
  • KBD & Associates , Inc. v. Great Lakes Foam Technologies, Inc., 816 N.W.2d 464 (2012) (affirming judgment in favor of manufacturer in a sales-commission dispute)
  • Magellan v. Sylvan Township, 2011 WL 1901805 (Mich. Ct. App. 2011) (successfully overturned multimillion-dollar breach-of-contract judgment against the Township)
  • Spartan Graphics, Inc. v. Entermarket Corp., 2010 WL 4628643 (Mich. Ct. App. 2010) (persuaded the Michigan Court of Appeals to reinstate multimillion-dollar claims for misappropriation of trade secrets and tortious interference, after the trial court erroneously dismissed the litigation as barred by a broadly worded settlement agreement)
  • Old Republic National Title Holding Co. v. First Metropolitan Title Co., 2010 WL 1056609 (Mich. Ct. App. 2010) (reversing summary disposition opinion and reinstating client’s million-dollar breach-of-contract claim)
  • Hubbard v. GeoStar Financial Services Corp., 2009 WL 3486653 (6th Cir. 2009) (Sixth Circuit reversed adverse judgment in a breach-of-contract action involving the transfer of unregistered securities)
  • Oneida Charter Township v. Grand Ledge, 771 N.W.2d 785 (Mich. 2009) (persuaded Michigan Supreme Court to peremptorily reverse, at the application stage, an adverse Court of Appeals interpretation of a Michigan statute that invalidated the City of Grand Ledge’s water contract with a neighboring township)
  • Quixtar, Inc. v. Brady, 2009 WL 1160273 (6th Cir. 2009) (persuaded Sixth Circuit Court of Appeals to reject argument that mandatory arbitration agreement was unconscionable and unenforceable, resulting in a $25 million arbitration award for client)
  • CMS Energy Resource Management Co. v. Quicksilver Resources, Inc., 2009 WL 1815776 (Tex. App. 2009) (special appellate consultant in successful reversal of trial court’s adverse judgment in $170 million breach-of-contract and fraud dispute)
  • McKay Consulting, Inc. v. St. John Health, 2009 WL 127664 (Mich. Ct. App. 2009) (successfully affirming jury verdict in $10 million breach-of-contract dispute)
  • Metro v. Amway Asia Pacific Ltd., 2006 WL 2035510 (Mich. Ct. App. 2006) (persuaded Michigan Court of Appeals to reject billion-dollar claim in class litigation alleging oppression and breach of fiduciary duty in a squeeze out)
 
Constitutional/Public Law
 
  • Moore v. Detroit Entertainment, L.L.C., 755 N.W.2d 686 (Mich. Ct. App. 2008) (affirming trial court verdict, holding that casino’s private security personnel were acting under color of state law when they violated the plaintiff’s constitutional rights)
  • Czymbor’s Timber v. City of Saginaw, 733 N.W.2d 1 (Mich. 2007) (Michigan Supreme Court vacated adverse Court of Appeals decision, paving the way for regulatory amendments that resulted in the preemption of local laws client sought to displace)
  • CETAC v. Kempthorne, 492 F.3d 460 (D.C. Cir. 2007) (represented citizens group challenging federal government’s land-in-trust decision)
  • TOMAC v. Michigan, 732 N.W.2d 487 (Mich. 2007) (represented citizens group challenging Michigan Governor’s amendment of a compact as violative of the constitutional separation of powers)
  • Cuno v. DaimlerChrysler Corp., 126 S. Ct. 1854 (2006) (successful amicus curiae representation in U.S. Supreme Court’s decision to vacate Sixth Circuit ruling that held investment tax credits unconstitutional)

Criminal
 
  • Riley v. California, 573 U.S. (submitted an amicus brief on behalf of six law enforcement agencies in support of law enforcement’s ability to search cell phones incident to arrest)
  • King v. Berghuis, 744 F.3d 961 (6th Cir. 2014) (winning affirmance of the denial of a writ of habeas corpus where the appellate court inserted a new issue into the case that had not been addressed in the petitioner’s state court appeals)
  • Abby v. Howe, 742 F.3d 221 (6th Cir. 2014) (winning affirmance of denial of writ of habeas case where petitioner claimed the state trial court had deprived him of his choice of counsel by refusing to adjourn trial to accommodate one of petitioner’s two lawyers)
 
Energy
 
  • Dock Foundry Co. v. Michigan Public Service Commission, 2014 WL 94358 (Mich. Ct. App. 2014) (affirming ruling by the MPSC authorizing Indiana Michigan Power to issue refunds on a pro-rata basis rather than calculating the refund on an individual-customer basis)
  • In re Application of Indiana Michigan Power Co. to Increase Rates, 824 N.W.2d 246 (Mich Ct. App. 2012) (affirming ruling by MPSC authorizing Indiana Michigan Power to self-implement rate increases at variable percentages)
 
Environmental
 
  • Burleson v. Department of Environmental Quality, 808 N.W.2d 792 (Mich. Ct. App. 2011) (landmark decision involving the DEQ’s regulatory authority on the beaches of the Great Lakes)
  • National Wildlife Federation v. DNR, 2011 WL 1004525 (Mich. Ct. App. 2011) (rejecting numerous environmental challenges to proposed nickel mine)
  • Citizens for Environmental Inquiry v. Department of Environmental Quality, 2010 WL 446047 (Mich. Ct. App. 2010) (defeated challenge, modeled after Massachusetts v. EPA, that would have forced the Michigan Department of Natural Resources & Environment to regulate greenhouse gas emissions)
  • Wolverine Power Supply Cooperative, Inc. v. Department of Environmental Quality, 777 N.W.2d 1 (Mich. Ct. App. 2009) (persuaded Michigan Court of Appeals to invalidate the MDEQ’s Rule 1830, which allowed any individual or entity to file a contested case proceeding when the department grants a permit to install)
  • Beaulier v. Ford Motor Co., 2008 WL 4367541 (Mich. Ct. App. 2008) (affirming dismissal based on the statute of limitations of a claim for environmental contamination)
  • ITT Industries v. BorgWarner, Inc., 506 F.3d 452 (6th Cir. 2007) (landmark Sixth Circuit ruling in a multimillion-dollar cleanup dispute, that an administrative order by consent is not a basis for a contribution action under CERCLA § 113)
  • Beauchamp v. Ford Motor Co., 2005 WL 1229749 (Mich. Ct. App. 2005) (affirming dismissal of multimillion-dollar class action seeking damages for environmental contamination)
  • Preserve the Dunes, Inc. v. MDEQ, 684 N.W.2d 847 (Mich. 2004) (the Michigan Supreme Court followed reasoning and result advocated in Michigan Aggregates Association amicus curiae brief involving scope of the Michigan Environmental Protection Act)
 
Financial Institutions
 
  • Watha v. Talmer Bank & Trust, 2013 WL 1165113 (Mich. Ct. App. 2013) (reversed summary judgment against bank in a dispute with the guarantor of a commercial loan)
  • Kim v. JP Morgan Chase Bank NA, 825 N.W.2d 329 (Mich. 2012) (successfully argued on behalf of amicus Michigan Bankers Association that a flawed foreclosure sale is voidable, rather than void)
  • United States v. Huntington National Bank, 682 F.3d 429 (6th Cir. 2012) & United States v. Huntington National Bank, 574 F.3d 329 (6th Cir. 2009) (twice obtaining reversal of the district court’s orders that would have forfeited more than $700,000 held by bank as collateral for defaulted loans)
  • Canvasser Heritage, L.L.C. v. Fifth Third Bank, 2012 WL 5853896 (Mich. Ct. App. 2012) (affirming summary judgment in favor of the bank in a commercial loan foreclosure action)
  • Price v. Kosmalski (In re Receivership of 11910 S. Francis Rd.), 821 N.W.2d 503 (Mich. 2012) (court adopted result advocated by amicus Michigan Bankers Association)
  • Cooper v. Edgewater Bank, 2011 WL 28448783 (Mich. Ct. App. 2011) (affirming summary judgment to the bank in a dispute regarding whether the bank had properly changed beneficiary designations)
  • Fifth Third Bank v. Canvasser, 2011 WL 2347707 (Mich. Ct. App. 2011) (affirming summary judgment in favor of the bank against guarantor in a foreclosure action)
  • Koons Buick Pontiac GMC, Inc. v. Nigh, 125 S. Ct. 460 (2004) (successful amicus curiae representation in U.S. Supreme Court’s decision to overrule Fourth Circuit and interpret the Truth In Lending Act as capping damages for non-mortgage, non-lease violations of the Act)
  • Weston v. AmeriBank, 122 S. Ct. 1172 (2002) (successfully opposed petition for certiorari to the United States Supreme Court in class action alleging Truth In Lending Act violations, drafting and filing the opposition brief on only four days’ notice from client)
 
Insurance
 
  • Ile v. Foremost Insurance Co., 823 N.W.2d 426 (Mich. 2012) (reversing lower courts and ordering judgment in favor of insurance company in a case involving the interpretation of insurance policy)
  • Priority Health v. OFIR, 803 N.W.2d 132 (Mich. 2011) (successfully upheld mandatory-minimum employer-contribution provision in health insurance policy)
  • Copus v. MEEMIC Insurance, 805 N.W.2d 623 (Mich. Ct. App. 2011) (case of first impression involving when “work loss” occurs under the No-Fault Act)
  • Egerer v. Woodland Realty, Inc., 556 F.3d 415 (6th Cir. 2009) (affirming summary judgment in favor of title insurance agency under RESPA)
  • Michigan Chiropractic Council v. Commissioner of Office of Financial & Insurance Services, 716 N.W.2d 561 (Mich. 2006) (reversing lower court ruling and holding that organizations representing chiropractors do not have standing to challenge validity of insurance policy on behalf of insureds)
  • Klapp v. United Insurance Group Agency, Inc., 663 N.W.2d 447 (Mich. 2003) (landmark decision rejecting rule that an ambiguous contract is construed against the drafter)
 
Intellectual Property
 
  • In re Sealed Appellant, 2007 WL 4245417 (5th Cir. 2007) (represented one Global Fortune 150 company against another in persuading the Fifth Circuit to reject a 28 U.S.C. § 1782 discovery request for use in a billion-dollar licensing dispute pending in German court)
  • Strong Sales, Inc. v. Vriesman, 2007 WL 2379516 (Mich. Ct. App. 2007) (Michigan Court of Appeals affirmed jury verdict in breach-of-warranty case involving defective software system)
  • Saginaw Valley Neurosurgery, P.C. v. Adams (Mich. Ct. App. 2004) (denying application for leave and preserving preliminary injunction enforcing covenant not to compete with neurosurgeons’ professional corporation)
  • Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001) (worked with a WNJ team to successfully reinstate lawsuit in the Sixth Circuit for theft of the Taco Bell Chihuahua ad campaign, which ultimately resulted in $42 million judgment in favor of clients)
 
Labor and Employment
 
  • Wrobbel v. Hydaker-Wheatlake Co., 2014 WL 310198 (Mich. Ct. App. 2014) (affirming verdict of no cause against plaintiff who had successfully sued her union and other employers in the same industry for sex discrimination)
  • Winterhalter v. Dykhuis Farms, 2012 WL 2989238 (6th Cir. 2012) (affirming summary judgment on employment-discrimination claims)
  • Mallison v. Haworth, Inc., 2012 WL 2580609 (6th Cir. 2012) (affirming summary judgment on former employee’s Equal Pay Act claims)
  • Bauman v. Morton International Inc., (Mich. Ct. App. 2012) (interlocutory reversal of partial summary disposition against employer in a wrongful-discharge action)
  • Denney v. Dow Chemical Co., 2011 WL 92964 (Mich. Ct. App. 2011) (affirming dismissal of employment claims for discrimination and retaliation)
  • Foote v. Dow Chemical Co., 2010 WL 173777 (Mich. Ct. App. 2010) (affirming dismissal of employment claims for wrongful discharge and tortious interference)
  • Chen v. Dow Chemical Co., 580 F.3d 394 (6th Cir. 2009) (re-establishing the standard for determining whether an employer’s legitimate reason for an employment action is pretextual, and affirming summary judgment in favor of the employer)
  • Brooks v. Gill Industries, Inc., 2008 WL 1914795 (Mich. Ct. App. 2008) (affirming dismissal of employment claims for retaliation, tortious interference with contract, and slander)
  • Day v. HME Inc. 2007 WL 3120942 (Mich. Ct. App. 2007) (reversing denial of sanctions for frivolous employment action)
 
Natural Resources/Oil & Gas
 
  • Frontier Energy, LLC v. Aurora Energy, Ltd., 2013 WL 1289362 (W.D. Mich. 2013) (affirming bankruptcy court’s disallowance of $1.5 million claim filed by lessor in oil and gas royalty dispute)
  • National Wildlife Federation v. Michigan Department of Environmental Quality, No. 11-123-AA (Mich. Cir. Ct. Nov. 21, 2011) (persuaded the court to deny an injunction against underground mine’s blasting operations pending appeal and then affirm the decision by MDEQ to grant a Part 632 non-ferrous metallic mineral mining permit)
 
Personal Injury
 
  • Benefiel v. Auto-Owners Insurance Co., 759 N.W.2d 814 (Mich. 2008) (as amicus curiae, persuaded the Supreme Court to hold that a plaintiff who suffers successive injuries bears the burden of proving that a current injury was caused by the subject accident, not by some independent occurrence)
  • Kenny v. Pioneer State Mutual Insurance Co., 2008 WL 3851837 (Mich. Ct. App. 2008) (affirming a trial court judgment involving no-fault personal protection insurance benefits)
  • Talbot v. RT Detroit Franchise L.L.C., 2006 WL 1084402 (Mich. Ct. App. 2006) (hired by trial counsel and persuaded the Michigan Court of Appeals to reverse adverse summary disposition ruling in premises-liability dispute)
 
Real Estate
 
  • Village at Knapp’s Crossing, LLC v. Family Fare, LLC, 2014 WL 667822 (Mich. Ct. App. 2014) (affirming dismissal of plaintiff’s case as a discovery sanction in multimillion-dollar construction case)
  • Tomecek v. Bavas, 759 N.W.2d 178 (Mich. 2008) (ruling in favor of clients in real-estate dispute involving the Land Division Act and implied utility easements of necessity)
  • In re Egbert R. Smith Trust, 745 N.W.2d 754 (Mich. 2008) (Michigan Supreme Court adopted argument embodied in amicus curiae brief of the Michigan State Bar’s Real Property Law Section regarding irrevocable nature of a right of first refusal)
  • Smiley v. Grosse Pointe War Memorial Association, 2008 WL 509874 (Mich. Ct. App. 2008) (successfully reversing adverse trial court decision in a multimillion-dollar dispute involving enforcement of a restrictive covenant)
 
Religious Liberty
 
  • Sebelius v. Hobby Lobby Stores, Inc., No. 13-354 (submitted amicus brief in support of business owners’ religious liberty interests in shaping  the operation of their businesses)
  • Elmbrook School District v. Doe, No 12-755 (submitted amicus brief on behalf of six education associations in support of school districts’ right to avoid evaluating the religiosity of a rented facility for short-term events like graduation ceremonies)
  • Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012) (successful amicus in case involving the ministerial exception to employment-discrimination laws)
  • Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) (submitted amicus brief in successful reversal of trial-court dismissal involving graduate counseling student’s exercise of conscience)
  • Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) (Ninth Circuit followed our amicus curiae brief in support of rehearing and vacated that part of its initial opinion holding that religious animus evident in a statute’s enactment history cannot be considered when analyzing an Establishment Clause claim)
 
Tax
 
  • Malpass v. Treasury, 833 N.W.2d 272 (Mich. 2013) (reversing lower court’s decision and holding that individual taxpayers with flow-through business income from in-state and out-of-state businesses may apportion the income using the businesses’ combined apportionment factors resulting in multimillion-dollar refund for clients)
  • Bay City v. Bay County, 807 N.W.2d 623 (Mich. Ct. App. 2011) (successfully represented City in case of first impression involving interpretation of Michigan’s tax-foreclosure statute) 
Tort/Product Liability
 
  • Edry v. Adelman, 786 N.W.2d 567 (Mich. 2010) (Michigan Supreme Court adopted position in amicus curiae brief submitted on behalf of the Michigan Health & Hospital Association involving the standard for admitting expert testimony in a medical-malpractice action)
  • Reed v. Shurlow, 2009 WL 4827827 (Mich. Ct. App. 2009) (successfully defended trial court’s decision in a condominium construction dispute)
  • Schaendorf v. Consumers Energy II, 2009 WL 563904 (Mich. Ct. App. 2009) (affirming exclusion of expert witnesses on Daubert grounds and also affirming dismissal of multimillion-dollar claim for damage allegedly caused by stray voltage)
  • Schaendorf v. Consumers Energy I, 739 N.W.2d 402 (Mich. Ct. App. 2007) (defended multimillion-dollar claim for damage allegedly caused by stray voltage; persuaded Michigan Court of Appeals to hold that the discovery rule cannot extend limitation periods for stray-voltage claims; nuisance claims do not exist in the stray-voltage context, because such cases present essentially product-liability claims; and the continuing-wrongful-acts doctrine does not apply in stray-voltage litigation)
  • Morales v. Auto-Owners Ins. Co., 672 N.W.2d 849 (Mich. 2003) (successful amicus curiae representation in the Michigan Supreme Court’s decision to overrule long-standing line of authority denying statutory prejudgment interest during interlocutory appeal periods, resulting in $7 million benefit to client)
  • Echelon Homes, L.L.C. v. Carter Lumber Co., 694 N.W.2d 544 (Mich. 2005) (the Michigan Supreme Court adopted reasoning and result advocated in amicus brief submitted on behalf of Michigan Bankers Association in case involving interpretation of knowledge requirement in statute governing statutory conversion)
  • Henry v. The Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005) (the Michigan Supreme Court followed reasoning and result advocated in amicus curiae brief submitted on behalf of the Product Liability Advisory Council in case involving whether Michigan should recognize a cause of action for medical-monitoring agreement)
 
Zoning
 
  • Laketon Township v. Advanse, Inc., 2009 WL 763447 (Mich. Ct. App. 2009) (reversing adverse trial court judgment, entered following a bench trial, and reaffirming that the time for determining whether a noncomforming use vests in a property owner is the date the relevant zoning ordinance was enacted or amended)
  • Houdini Properties, LLC v. City of Romulus, 743 N.W.2d 198 (Mich. 2008) (the Michigan Supreme Court followed reasoning and result advocated in amicus curiae brief submitted on behalf of the State Bar’s Appellate Practice Section that a claim of appeal from an adverse zoning decision is not a “pleading” subject to joinder rules)
  • Aggregate Industries - Central Region v. Waterloo Township, 09-01248-AA (Jackson Cir. Ct. July 9, 2009) (persuaded the circuit court to grant an expedited appeal, reverse the township’s adverse zoning decision, and grant a special land use application for mining)
 
Contact:  For more information, or to request a consultation, please contact Matthew Nelson (616.752.2539, mnelson@wnj.com).
 
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