In December 2012, Mr. Bruty informed Stryker that he was resigning to accept a position with a web startup company. However, unbeknownst to Stryker, Mr. Bruty instead went to work for a competitor of Stryker (a company known as Blue Belt) as its Vice President of Sales and Marketing. Like Stryker, Blue Belt manufactures a "navigation system" for surgeons. Enforcing its non-compete agreement, Stryker secured a temporary restraining order against Mr. Bruty and, after expedited discovery, a preliminary injunction hearing was held.

Applying the well-established four factor test for granting injunctive relief, Judge Janet T. Neff found that Stryker established a likelihood of success on the merits, rejecting the argument that Blue Belt is not a competitor of Stryker. Next, Judge Neff found that Stryker may suffer irreparable harm, noting the difficulty of calculating damages for the potential loss of customer goodwill. Considering the potential harm to others, Judge Neff observed that any harm to Mr. Bruty was "foreseeable and avoidable," as he made "a calculated risk" by accepting employment with a competitor of Stryker. Finally, Judge Neff found that the public interest favored enforcing Stryker's reasonable non-compete agreement.

Balancing these factors, Judge Neff held that Stryker met its burden establishing that the requested injunctive relief was warranted and enjoined Mr. Bruty from competing against Stryker through his employment with Blue Belt.

Two months after securing the permanent injunction, "Platinum Sports, represented by the same attorney who had won the first set of lawsuits, sued the same defendants, challenging the same laws . . . on the same free speech grounds." Platinum Sports Ltd v. Snyder, Nos. 12-1811/1812, slip op. at 2. Commenting on this unique case, Judge Sutton wryly noted:

Whether Platinum Sports wished to seize potential defeat from the jaws of established victory or hoped to pile victory (and potential § 1988 fees) on top of victory is not clear. What is clear is that the federal courts have no authority to resolve this "dispute." The hardest question is which Article III defect to invoke. We choose lack of standing, lack in particular of a cognizable injury, and on that ground affirm the district court’s dismissal of the case.

Id. 

"[A] claimant does not present the kind of 'case or controversy' required by Article III of the United States Constitution unless it suffers an injury caused by the defendant and redressable by a court." Id. at 3. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Finding that Platinum Sports has no cognizable theory of injury, the Sixth Circuit observed that Platinum Sports "offers no explanation how it was injured before the laws were preliminary enjoined, and it cannot show any injury going forward in view of the injunctions."  Id.

"Every effort by Platinum Sports to prove otherwise misses the net and the rim."  Id.  Platinum Sports argued that the fact that the statutes appear "on the books" will chill its sign and billboard speech. Rejecting this argument, the Sixth Circuit concluded that "whatever chilling effect the on-the-books existence of these laws might have in the abstract is removed by the concrete injunction preventing their enforcement." Id. Absent some "credible threat" of enforcement, no injury exists. 

Affirming the dismissal of this suit for lack of standing, Judge Sutton observed: "Platinum Sports has nothing to fear but, to borrow a phrase, fear itself, and that assuredly does not amount to a 'well-founded fear' of enforcement."

After Walgreens alerted the police of Charles's crime of $14.99, the police went to Charles's within-sight house. First, the police followed Charles's brother into the home. After Charles and his mom came downstairs, everyone convened on the back porch. A pat down of Charles revealed only a lighter, so the police asked if they could look inside the house. Charles apparently mumbled something and began to walk inside when the police grabbed him (by crossing the threshold of the doorway) and pulled Charles outside. In the ensuing arrest, Charles alleges that the police used excessive force, and Charles's mom too says the police used excessive force on her when they bumped her.

The officer who admittedly reached into Charles's home violated the Fourth Amendment by doing so. The court did not agree with the officers who argued that two exceptions to the Fourth Amendment applied. First, the "hot pursuit" doctrine did not apply: the police were not in "pursuit" because they were not literally chasing Charles; and it was not "hot" (i.e., an emergency) because "Charles would have remained inside the house, a non-violent person alone with a non-violent phone charger." 

Nor could the police enter to prevent the "imminent destruction of evidence" (think flushing drugs down the toilet). As the Sixth Circuit said "to call this a public-safety exigency gives public safety a bad name." Further, no risk of evidence being destroyed existed. As the Court said: "Tossing the charger out the window would have accomplished little. This was not Venice. It was canal-free Sturgis, Michigan. And flushing a charger down a toilet—or more precisely trying to flush a charger down a toilet—would be more likely to create new problems than eliminate the one at hand." 

In the end, the claims alleging the use of excessive force and a violation of the Fourth Amendment for the first entry into Charles' home will proceed towards a trial to resolve issues of fact between the officers' and the Smiths' version of events.

* Qualified immunity protects police officers making discretionary decisions—essentially recognizing that the police must make on-the-spot decisions without contemplation or reference to a legal treatise.

All roads lead somewhere, but what type of public roads provide access to a lake? The first consideration is whether the road terminates near the shore of a lake, or whether it is a road that runs parallel to the lakeshore. Unfortunately, members of the public and even local municipalities and law enforcement agencies often fail to recognize this distinction.

Roads that run perpendicular to a lake and terminate at or near the shore, i.e. "road ends," frequently provide limited public access. Though Michigan case law has long provided that road ends provide only access, that did not discourage people from exercising riparian rights at many road ends, including the installation of docks and overnight mooring of boats. In March of 2012, Public Act 56 was passed, amending Part 301 of the Michigan Natural Resources and Environmental Protection Act. You can view the Act here. Among other things, Public Act 56 makes it a crime to install a private dock without a permit or to moor boats to a road end dock overnight. More information on Public Act 56 can be found here. Though the law is clear, enforcement throughout the State has been spotty, and at least some local law enforcement agencies appear destined to avoid enforcement.

Though road ends provide limited public access, roads in Michigan that run parallel to a lakeshore do not. Many of our lakes have scenic roads that follow the perimeter of lake, with little land between the road and the water. The "front-tier" lots and cottages are separated from the lake by only the road. Members of the public sometimes mistakenly believe that, because they can travel on the road, they can also walk to the lake from those roads. In 2010 the Michigan Supreme Court reiterated that the existence of a parallel road separating a front-tier lot from a lake does not defeat that lot owner's riparian rights. Similarly, though members of the public can travel within the confines of the road, they may not use it to gain access to the lake.

As private docks are increasingly removed from public road ends, those who own those docks may be looking for new places to install them, including strips of land between a parallel road and the lakeshore. If riparian owners are not diligent, with the passage of time those docks could become permanent. You can learn more about that risk here.

It was a particularly timely discussion, given the tragedies that had occurred earlier in the week at the Boston Marathon. After all, food defense planning is about preventing an intentional contamination event from occurring at your food facility or to your food product, including, as is described in the Food Safety Modernization Act, "acts of terrorism." FSMA contemplates that food facilities undertake measures to prevent the "biological bomber" – a person who intentionally infects himself with a disease in order to spread the disease and effect a bioterrorism event – from contaminating their food products.

I urge you to consider food defense measures – at the very least a vulnerability assessment – as a priority for your facility; such protocols are already required under certain GFSI standards, including as Module 2.7 under the SQF Code.  It won't be long before food defense plans are a legal requirement under FSMA; FDA could issue proposed food defense regulations at any time (although it's my understanding that such proposed rules are unlikely to be published before 2014). If you want to discuss a strategy for implementing a food defense plan at your facility, don't hesitate to contact me at sskluting@varnumlaw.com or 616-822-4613.

Individual customers have signed up to lease each panel for 25 years for a one-time fee of $470 per solar panel. A rebate of up to $150 will be given the customer to account for energy optimization credits. The customer will also receive a monthly billing credit for the electricity produced by the solar panel, which is expected to be at least 25 kWh per month. As many as 360 panels will be installed on the racking at the site, depending on customer support.