LACHES
www.ocba.org | October 2026 | Number 692
Michigan Zoning and Land Division Reform
Negotiating Representations and Warranties in Purchase Agreements
Expanding National Security Scrutiny of Real Estate Transactions
Six Steps for Acquiring Intellectual Property
LACHES
CONTENTS OCTOBER 2026
OAKLAND COUNTY BAR ASSOCIATION
FEATURES
2026-2027 BOARD OF DIRECTORS
Negotiating Representations and Warranties in Purchase Agreements Which representations and warranties are “must-haves” vs. “nice-to-haves?” It depends on your client’s goals. By Erin Bowen Welch 12
1760 S. Telegraph Road, Suite 100 Bloomfield Hills, Michigan 48302-0181 (248) 334-3400 • FAX (248) 334-7757 www.ocba.org
Michigan Zoning and Land Division Reform Real estate transactions depend on legal certainty. Review these municipal procedures to avoid tedious disputes. By John D. Gwyn 9
Expanding National Security Scrutiny of Real Estate Transactions Explore the effects of CFIUS’s expansion into real estate transactions and increasing state-level restrictions on foreign land ownership. By Anthony J. Scalise, Derek Mullins, Josie Clerford, and Emma Hammoud 15
PRESIDENT Aaron V. Burrell
SECRETARY Julie L. Kosovec
DIRECTORS Jennifer L. Lord Emily E. Long Moheeb H. Murray Kimberley Ann Ward Layne A. Sakwa Silvia A. Mansoor Stephen T. McKenney James A. Martone Jennifer J. Henderson Matthew P. Allen
EXECUTIVE DIRECTOR Jennifer Quick
ABA DELEGATE James W. Low
LACHES EDITORIAL BOARD Lanita L. Carter Syeda F. Davidson Victoria B. King Coryelle E. Christie
Thamara E. Sordo-Vieira Xavier Jay Donajkowski Vincent C. Sallan
PRESIDENT-ELECT Kari L. Melkonian VICE PRESIDENT Victoria B. King TREASURER Syeda F. Davidson
THE MISSION OF THE OAKLAND COUNTY BAR ASSOCIATION IS TO SERVE THE PROFESSIONAL NEEDS OF OUR MEMBERS, IMPROVE THE JUSTICE SYSTEM AND ENSURE THE DELIVERY OF QUALITY LEGAL SERVICES TO THE PUBLIC. Articles and letters that appear in LACHES do not necessarily reflect the official position of the Oakland County Bar Association, and their publication does not constitute an endorsement of views that may be expressed. Readers are invited to address their own comments and opinions to: LACHES | Oakland County Bar Association 1760 S. Telegraph Rd., Ste. 100 Bloomfield Hills, MI 48302-0181 Publication and editing are at the discretion of the editor. LACHES (ISSN 010765) is the monthly (except July and December) publication of the Oakland County Bar Association, a Michigan nonprofit corporation, 1760 S. Telegraph, Ste. 100, Bloomfield Hills, MI 48302-0181. Copyright © 2026 Oakland County Bar Association. The price of an annual subscription ($20) is included in member dues. Periodical postage paid at Bloomfield Hills, MI 48304 and additional entry offices. Postmaster: Send address changes in writing to Oakland County Bar Association, 1760 S. Telegraph, Ste. 100, Bloomfield Hills, MI 48302-0181.
Six Steps for Acquiring Intellectual Property Acquisition pitfalls can render the transfer of rights ineffective. Follow these steps to protect your client’s IP. By Jessica Fleetham 20
28 Dinner attendees give a round of applause to a contest winner at the 2026 Bar for the Course Golf Tournament.
DEPARTMENTS
President’s Page E.D.itorial OCBA Calendar of Events Professional Development and CLE OCBA at Work On the Circuit Jury Trials and Utilization Volunteer Opportunities Foundation In Pro Per New OCBA Members OCBA Staff Directory Adjourned
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PUBLISHING PARTNER
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LACHES is published exclusively for the Oakland County Bar Association by Hour Custom Publishing, a division of Hour Media, L.L.C. Copyright © 2026. All rights reserved. No portion may be copied or published without the express written consent of the publisher. The views expressed in this publication are not necessarily those of OCBA or Hour Media.
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PRESIDENT’S PAGE
A Renewed Case for Civility By Aaron V. Burrell
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aw is a hard profession. A variety of sources regularly bombard us with an onslaught of demands. The work can often be analytically demanding, physically exhausting, and emotionally draining. For that reason, I do not understand why lawyers make it more difficult by being uncivil. Although our jobs and lives are challenging, we can certainly make it easier on ourselves by being kind to one another. Civility is not a soft virtue or a nicety to be observed when convenient. It is a professional obligation, a strategic asset, and a subject on which Michigan lawyers have a special claim to leadership. In short, you can bring esteem to your profession, advance the interests of your clients, and improve your life by simply being nice to others.
THE ETHICAL OBLIGATION OF CIVILITY
Michigan Rule of Professional Conduct 6.5(a) codifies the commitment to civility. The rule provides that “a lawyer shall treat with courtesy and respect all persons involved in the legal process.”1 Michigan is among the few jurisdictions in the country where discourtesy is not simply frowned upon but is a matter of professional discipline. Our Supreme Court has upheld those courtesy rules against constitutional challenge, confirming that civility obligations are compatible with and essential to vigorous advocacy.2 In short, civility is a pillar of practice in Michigan.
MICHIGAN’S COMMITMENT
Bar leaders in our state have long sounded civility. Ed Pappas, my partner at Dickinson Wright, has been one of the profession’s luminaries on this topic. Indeed, in an article in the Michigan Bar Journal, a comment describing Ed states that there “is no one in Michigan more influential in promoting attorney professionalism and civility, instituting educational programs, contributing
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to the adoption of the Professionalism Principles for Lawyers and Judges, and helping to develop the Professionalism and Civility Committee.”3 In Ed’s article titled “Professionalism and civility: You cannot have one without the other,” he announces the civility principles that the State Bar of Michigan adopted and the Michigan Supreme Court authorized. Among other things, the principles ask that attorneys show “civility in our interactions with people involved in the justice system by treating them with courtesy and respect” and refrain from engaging in “conduct that may be viewed as rude, threatening, or obstructive towards people in the justice system.” In summary, Ed notes that the “essence of the principles is acting with integrity and honesty and treating people with civility and respect.”
NATIONAL LEADERS
All levels of the justice system have touted these principles. Justice Sandra Day O’Connor observed that “more civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.”4 More than 50 years ago, Chief Justice Warren
Burger declared that “[w]oven into the seamless fabric of effective advocacy, professional ethics and manners are no less than technical skills.”5 And Justice Anthony Kennedy put it simply: Civility is “the mark of an accomplished and superb professional.”6
THE COST OF INCIVILITY
If the moral case for civility does not persuade, the evidence should. I am completing doctoral research on leadership and civility in legal organizations, and the social science on this subject is striking. In a landmark study of workers subjected to incivility, Christine Porath and Christine Pearson found that nearly half intentionally decreased their work effort, and more than three-quarters reported that their commitment to the organization declined.7 In other words, incivility is not merely unpleasant; it is also expensive. It degrades performance, drives talented people out of organizations, and erodes the collaboration on which good lawyering depends. Worse, incivility spreads. Researchers describe an “incivility spiral.” A slight begets a sharper reply, which begets open hostility until parties who began with a discovery dispute find themselves in a war of attrition.8
2026–2027
Every litigator has watched this spiral consume a case, resulting in endless motions, inflating costs, and ignored merits.
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CIVILITY IS NOT WEAKNESS
Let me address the persistent myth head-on: Civility is not capitulation. Our duty of zealous advocacy is fully compatible with courtesy. In fact, the most effective advocates I know are unfailingly professional precisely because it sharpens their credibility with courts, opposing counsel, and clients. The judge who trusts your candor reads your brief differently. The adversary who respects you extends the professional courtesies that make practice productive and worthwhile. The OCBA has long modeled this ethos. Our committees, our bench-bar events, and the friendships forged at our gatherings serve as examples of civility in action. This year, I ask each of you to recommit to it deliberately: in the deposition where provocation invites retaliation, in the email drafted in frustration, in the courtroom where an adversary stumbles. Respond to discourtesy with courtesy. Extend the extension. Make the phone call instead of filing the motion. Our oath asks it of us, our rules require it of us, and our profession is measured by it. If we can hold that standard together, we will not only practice law better, but we will leave this profession better than we found it. As I noted during my inaugural speech, practice with others as you would have them practice with you!
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Aaron Burrell is the president of the Oakland County Bar Association. Footnotes: 1. MRPC 6.5(a).
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2. Grievance Administrator v. Fieger, 476 Mich. 231; 719 NW2d 123 (2006).
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3. Professionalism and civility: You cannot have one without the other. 4. Sandra Day O’Connor, Professionalism, 76 Wash. U L Q 5 (1998). 5. The Special Skills of Advocacy. 6. Anthony M. Kennedy, Remarks at the American Bar Association Annual Meeting (1997). 7. Christine Porath and Christine Pearson, The Price of Incivility, Harvard Business Review (January-February 2013). 8. Lynne M. Andersson and Christine M. Pearson, Tit for Tat? The Spiraling Effect of Incivility in the Workplace, 24 Academy of Management Review 452 (1999).
The Sargent Consulting Group, LLC
“Elite Supporters” consist of distinguished firms whose sponsorship of 2026-2027 OCBA events total $2,500 or more. There are four supporter levels. If you’d like more information on this program, contact Jennifer Quick at jquick@ocba.org. Elite Supporter levels: PLATINUM ($10,000+), GOLD ($7,500+), SILVER ($5,000+), and BRONZE ($2,500+)
Leading Law Professionals www.ocba.org
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E.D.ITORIAL
Introducing the OCBA Inns Academy A New Generation of Mentorship, Professional Growth, and Connection By Jennifer Quick
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or three decades, the Oakland County Bar Association’s chapter of the American Inns of Court helped attorneys build lasting professional relationships, develop practical legal skills, and strengthen the professionalism and civility that define our legal community. Hundreds of attorneys and judges have participated in the program, forming mentoring relationships and friendships that have lasted throughout their careers. This fall, the OCBA is proud to launch the OCBA Inns Academy — an evolution of our long-standing Inns program that preserves everything participants valued while introducing a more flexible, innovative structure designed to better suit today’s legal profession. Those who know the program best played a significant role in developing the new academy. Over the past year, the OCBA gathered feedback from current and former Inns of Court participants through surveys, focus groups, and individual discussions, along with input from judges, newer attorneys, and other legal professionals. Their thoughtful ideas and candid feedback helped shape many aspects of the new program, from its schedule and format to its mentoring model and leadership opportunities. We are sincerely grateful to everyone who took the time to share their experiences and help create this outstanding program’s next chapter. I am happy to announce that the Inns Academy is now accepting applications.
WHY JOIN?
Although relationships define the legal profession, finding opportunities to connect with experienced attorneys and judges in a meaningful way can be challenging. The OCBA Inns Academy exists to bridge that gap. In the program, diverse teams called Inns include judges, experienced practitioners, newer attorneys, law students, and paralegals. Working together throughout the year, the members of each Inn develop professional relationships while learning from one another’s unique experiences and perspectives.
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Unlike traditional one-on-one mentoring, the academy’s collaborative model allows participants to benefit from multiple mentors while also sharing their own knowledge and experiences. Whether you are just beginning your legal career or have practiced for decades, every participant can contribute something valuable — and learn something new. The academy stands on four core pillars: • Legal skills and knowledge • Professionalism and civility • Fellowship • Leadership These pillars guide every aspect of the program, from Inn discussions and presentations to networking opportunities and leadership development.
MORE THAN EDUCATION
The OCBA Inns Academy is about much more than attending presentations. It offers an opportunity to build a trusted network of colleagues, exchange ideas with attorneys from different practice areas, learn directly from members of the judiciary, and develop the leadership skills that strengthen both your career and our profession. Participants can also get involved beyond the classroom through community service projects, leadership roles, and committee service, which help shape future academy programming. To add an element of fun, the academy will host an annual team competition. Inns will earn points through participation, collaboration, volunteer service, mentorship, recruitment of new members, and excellent presentations. While the competition encourages engagement, its true purpose is to foster stronger connections, encourage meaningful mentorship, and inspire greater involvement in the program.
BENEFITS BEYOND THE PROGRAM
The relationships formed through the OCBA Inns Academy often extend long beyond a single program year. Participants gain mentors, trusted colleagues, referral sources, and friends. They strengthen their confidence, broaden their professional perspective, and become more engaged within both the OCBA and the legal community. Those who complete the program will receive a certificate recognizing their commitment to professional development and active participation. They will also enter a growing alumni network that provides opportunities to remain involved through future mentoring, programming, and special events.
BE PART OF THE INAUGURAL CLASS DESIGNED FOR TODAY’S ATTORNEYS
The OCBA carefully evaluated what made the original Inns of Court program successful while identifying opportunities to better meet the needs of today’s busy professionals. The new academy’s streamlined schedule consists of a kickoff event in November followed by four evening meetings between January and April. Inns also meet independently throughout the year at times that work best for their members, allowing for greater flexibility while preserving the close collaboration that has always been at the heart of the program. Each presentation meeting combines networking, dinner, and an interactive team presentation focusing on practical legal skills, professionalism, ethics, advocacy, and other topics that attorneys encounter throughout their careers.
Whether you are a law student preparing to enter the profession, a newer attorney looking for guidance, an experienced practitioner eager to share your knowledge, or a judge committed to mentoring the next generation, the OCBA Inns Academy offers an exceptional opportunity to invest in yourself and the future of the legal profession. If you appreciated the collegiality and mentorship of the former Inns program, you’ll find the same values at the heart of the OCBA Inns Academy — enhanced with a structure designed for today’s legal community. Join the inaugural class and help shape the future of one of the OCBA’s premier professional development programs. The academy is now accepting applications. Learn more and apply by October 22 at ocba.org/innsacademy. Jennifer Quick is the executive director of the Oakland County Bar Association.
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CALENDAR OF EVENTS Please Note: The dates listed below were sent to the publisher on August 1. It is possible that some of these events have since been altered. Please check ocba.org/events for the most up-to-date schedule.
OCTOBER TASTE OF DIVERSITY
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Join colleagues within the OCBA and local affinity bars for the annual Taste of Diversity cocktail reception — a celebration of the rich diversity and multiculturalism within our legal community. Enjoy an evening of festive camaraderie, delicious hors d’oeuvres, and meaningful recognition. The event will also feature the presentation of the Leon Hubbard Community Service Award and the Michael K. Lee Memorial Award, honoring individuals who have made outstanding contributions to advancing diversity in the legal profession. Don’t miss this inspiring and lively evening — register today at ocba.org/2026diversity.
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PATHWAY TO THE JUDICIARY TOWN HALL The OCBA is proud to co-host a special program designed for attorneys who are interested in pursuing a judicial appointment or election. The program offers valuable insight into the path to the bench and the qualities and qualifications considered throughout the process. Hear firsthand from both appointed and elected judges as they share their experiences and discuss the realities of seeking a judgeship. To learn more and register, visit ocba.org/events.
NOVEMBER LUNCHEON LIMINE: FEDERAL COURT Our bench/bar Q&A luncheon series continues with an opportunity to learn more about practicing in the federal court. Hear from Chief Magistrate Judge David R. Grant from the U.S. District Court for the Eastern District of Michigan during an informal discussion focusing on the difference between practicing in the state and federal courts. Bring your questions! Space is limited, so register today at ocba.org/events.
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BAR NIGHT OUT MIXER: NOVEMBERFEST In partnership with the New Lawyers Committee’s annual Novemberfest, this lively event brings OCBA members together for a festive night featuring appetizers, a cash bar, and great company. Whether you’re reconnecting with colleagues or meeting new faces in the legal community, it’s the perfect way to unwind and expand your professional network. Don’t miss out — visit ocba.org/novemberfest for details and registration!
OCBA OFFICE CLOSED IN OBSERVANCE OF THANKSGIVING 6 LACHES MAGAZINE
5 26 & 27
PROFESSIONAL DEVELOPMENT & CONTINUING LEGAL EDUCATION Expand Your Knowledge with These Great Seminars!
OCTOBER
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Learn more and register at ocba.org/events www.ocba.org
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OCBA AT WORK Below are recent examples of the OCBA at work in service to the bar and the community.
Past Presidents Dinner The OCBA hosted its annual Past Presidents Dinner on June 18 at the Huron River Hunting and Fishing Club in Farmington. Nearly 30 past presidents gathered to welcome immediate past President Sarah Kuchon into the group. Continuing a long-standing tradition, 2024-25 President Dean Googasian presented Kuchon with a pin honoring her service as the organization’s most recent past president. The evening provided an opportunity to reconnect and celebrate the leaders who have helped strengthen the OCBA and the legal community.
New Lawyers Committee Year-End Social The New Lawyers Committee, a resource for OCBA members in their first 10 years of practice, held its year-end social on June 11 at Sidecar Slider Bar in Bloomfield Hills. The committee supports early-career attorneys through educational programs, mentorship, leadership opportunities, networking events, volunteer projects, and fundraisers. To learn more, contact Katie Tillinger at ktillinger@ocba.org.
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Membership Maximizer Fourteen OCBA members started their day on July 16 by networking over light refreshments while exploring the full benefits of membership. The semiannual orientation highlighted the programs, resources, and opportunities available to help members advance their careers, expand their professional networks, increase their visibility, and become more involved in the legal community.
Zoning Reform | FEATURE
MICHIGAN ZONING AND LAND DIVISION REFORM:
What Transactional Real Estate Counsel Should Anticipate Before Closing By John D. Gwyn
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n southeast Michigan’s dynamic real estate market, getting a complex commercial or mixed-use development to the closing table requires navigating a maze of modern economic demands and aging municipal regulations. Transactional attorneys, developers, and municipalities sometimes begin a project with a shared goal of responsible community growth, only to find themselves unexpectedly entangled in procedural gridlock. This friction doesn’t usually start with a fundamental disagreement over a project’s value but rather with the antiquated legal frameworks governing the use and division of land.
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FEATURE | Zoning Reform For instance, the purchase agreement is signed. Financing is in place. The developer has already invested substantial money in engineering, environmental review, architectural drawings, and site planning. Then, late in the due diligence period, one sentence buried in a decades-old zoning ordinance brings the project to a halt. The planning commission reads the ordinance one way. The developer reads it another. Neighboring property owners may have a third interpretation. No party necessarily believes it is acting unreasonably, but the disagreement results in delay, uncertainty, added legal fees, and a transaction that suddenly looks far less predictable than it did when the letter of intent was signed. Similar situations are becoming increasingly common as modern development collides with municipal ordinances written for another era. When a developer and a local municipality sit down to map out a new project, they often find themselves speaking two entirely different languages. Today’s real estate market demands flexibility, mixed-use spaces, higher-density housing, and innovative redevelopment of older properties. Yet local governments must typically evaluate these modern proposals using zoning ordinances and land division standards drafted decades ago. For transactional real estate counsel trying to close a deal, this disconnect is more than a bureaucratic headache. It can become a significant financial and legal vulnerability. Outdated municipal ordinances create uncertainty, one of the greatest threats to a real estate transaction. Antiquated or vague regulatory frameworks threaten the entire development process. Incomplete municipal rules harm both the developer and the city. They can face costly administrative delays, financing hurdles, and the looming threat of litigation. To protect these investments and foster responsible community growth, attorneys should approach local ordinances as flexible legal instruments that require periodic review rather than static regulatory checklists. Municipal boards and planning commissions now grapple with pressures many older ordinances didn’t anticipate. These include the demand for mixed-use zoning, increased housing density, adaptive reuse of existing buildings, and the continued use of digital governance tools. These converging factors have created practical problems that older municipal documents simply can’t resolve. One recurring issue is that outdated zoning can create a so-called “building code cliff ” for developers, forcing smaller mixed-use or middle-market housing projects into standards intended for much larger commercial buildings. This can trigger expensive requirements, including elevators, enhanced fire separations, lar-
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ger parking areas, or infrastructure obligations that may not fit the project’s scale. When these costs appear late in the approval process, they can change the economics of a deal entirely. A project that looked financially viable during acquisition can become unworkable before closing or shortly thereafter. For example, in a typical redevelopment matter, a developer may acquire or seek to acquire an older commercial parcel with the intent of converting it into a modest mixed-use project with retail on the first floor and residential units above. The concept may align with the municipality’s stated desire for walkability and downtown revitalization. Yet the ordinance may still classify the project under rigid commercial standards that were never designed for that type of development. This can result in months of redesign, unanticipated compliance costs, and frustration for both the developer and the municipality. As a result, some developers abandon these projects, leaving communities with stagnant tax bases and missed opportunities for responsible growth. Modernizing these provisions can remove unnecessary regulatory barriers while still allowing municipalities to protect neighborhood character, infrastructure capacity, and long-term planning goals. For transactional real estate counsel representing buyers and developers, municipal modernization isn’t merely an academic issue. It is a critical component of due diligence. Before a complex commercial, residential, or mixed-use deal reaches the closing table, transactional attorneys should determine whether their clients are buying into a clear development path or a zoning dispute waiting to happen.
THE PREDICTABILITY CRISIS: WHY OUTDATED ORDINANCES CAN BREAK DEALS
Developers face increasing budget pressure in the form of extended municipal approval timelines and unpredictable land division processes. In southeast Michigan, time is quite literally money. Timing dictates several critical financial factors, such as interest rates, construction costs, and labor availability. It also heavily influences project-specific milestones, including financing commitments, environmental reviews, and tenant obligations. The legal conflict sometimes arises when local zoning ordinances and land division regulations drafted in the 1980s or ’90s fail to clearly define modern development standards. Older documents may contain vague provisions stating that a parcel may be divided subject to “local approval,” “compatibility with surrounding uses,” or “planning commission discretion” without identifying objective, measurable criteria. These older documents often fail to address the
nuances of modern mixed-use developments or phased lot splits. Also, they typically lack clear guidelines for shared parking arrangements, cross-access easements, utility extensions, and the complex project sequencing that developers rely upon to secure financing. Without specific, updated ordinance provisions, the municipality — and, by extension, local taxpayers — may absorb the cost of administrative delays and potential litigation as a general expense. The developer also absorbs the expense of carrying costs, delayed financing, and uncertainty over whether the project can proceed at all. Consider another common scenario: A developer seeks to purchase a large parcel with the intent to divide it into multiple components for commercial and residential use. If the local land division ordinance is vague, the planning commission may interpret density, access, frontage, or utility requirements differently than the developer’s transactional counsel. This creates immediate friction. Why should a developer invest hundreds of thousands of dollars in pre-closing site plans only for ambiguous language adopted decades earlier to derail the project? These types of disputes rarely begin as dramatic legal battles. They begin with reasonable people disagreeing over unclear language. One side believes the ordinance permits the proposed division. Another believes the division requires additional approvals. A third stakeholder argues that the ordinance does not allow the project at all. By the time the parties reach litigation, the practical damage may already be done. The dispute slows the deal, increases costs, and erodes trust between the developer and municipality.
WHAT TRANSACTIONAL COUNSEL SHOULD REVIEW BEFORE CLOSING
Transactional real estate attorneys should not treat ordinance review as a secondary issue behind title, survey, environmental, and financing matters. Zoning and land division rules matter just as much for a successful transaction. During due diligence, counsel should look closely for provisions that create discretion without standards. Words such as “compatible,” “appropriate,” “sufficient,” or “subject to approval” may be necessary in some contexts, but they can create risk if the ordinance does not explain how those standards will be measured. Counsel should also review whether the ordinance contains clear timelines for application review, public hearings, administrative approvals, appeals, and expiration of approvals. This is where municipal counsel and transactional counsel overlap. Attorneys advising municipalities should help their clients amend
Zoning Reform | FEATURE outdated ordinances to clearly define development requirements and the parameters of the land division process. Local ordinances should outline procedural and financial responsibilities in a way that applicants, residents, elected officials, and reviewing courts can understand. A modern land division ordinance should transparently codify objective physical criteria, such as minimum lot sizes, public utility access, road frontage, and easements. It should also clearly outline procedural expectations, including required application materials, review timelines, and approval standards. When representing a developer, transactional attorneys should scrutinize local ordinances during the due diligence phase rather than relying solely on informal assurances. If a municipality has modernized its zoning framework to clearly define land division procedures, counsel can more accurately advise the buyer regarding timing, cost, and legal risk. This allows the client to budget appropriately, negotiate contingencies, avoid ambiguity, and reduce the likelihood of post-closing disputes with the municipality.
BRIDGING THE GAP BETWEEN MUNICIPAL AND TRANSACTIONAL COUNSEL
Municipal attorneys and transactional attorneys may approach development from different angles, but their clients share a need for clarity. Municipalities want responsible growth, defensible procedures, and ordinances that protect the public interest. Developers want predictability, timing, and a clear understanding of the approval process. The best ordinances serve both goals. They don’t guarantee approval for every project, nor should they. But they do tell applicants what information to submit, what standards will be applied, who will make the decision, when that party will make the decision, and how the applicant may appeal the decision. Clarity benefits the public as well. Residents are better served when they can understand the standards governing development in their community. Planning commissions are better served when they can rely on objective criteria rather than broad discretionary language. Developers are satisfied when they can evaluate risk before committing capital. Courts are better served when ordinance language provides a clear basis for review. In this sense, ordinance modernization is not merely pro-development or antidevelopment. It is pro-predictability.
DIGITAL GOVERNANCE AND THE VALIDITY OF MUNICIPAL APPROVALS
Beyond the substantive text of zoning ordinances, transactional counsel should also pay
close attention to how municipalities grant approvals in the modern era. The COVID-19 pandemic exposed many outdated governance provisions, particularly those requiring in-person public hearings, physical notice procedures, or traditional voting processes for zoning variances and land division approvals. During the height of the pandemic, many planning commissions and municipal boards struggled to conduct business. Some were unable to hold hearings or pass critical zoning amendments because their local rules failed to adequately address electronic participation, remote meetings, or digital notice. Although the emergency phase of the pandemic has passed, the legal and practical lessons remain. Hybrid governance is now part of municipal life. Today, modern governance provisions should address the use of virtual or hybrid meetings where permitted by law, electronic notice delivery where appropriate, digital submission of application materials, and clear procedures for maintaining public participation. These technologies offer more than convenience. They can encourage broader community involvement by reducing barriers that prevent residents, business owners, and other stakeholders from participating in local zoning decisions. For the transactional attorney, the intersection of digital governance and real estate closings is significant. When closing a complex deal that relies on a recently granted land division, rezoning, special land use, or zoning variance, counsel should ensure that the approval was legally valid. It is not enough to confirm that an approval letter exists. It’s critical for counsel to verify whether the municipality had the proper authority to grant the approval. This involves confirming that the correct municipal body acted and satisfied notice requirements. Counsel must also ensure the proper adoption of all minutes and resolutions while checking if any appeal periods remain open. If a municipality used digital voting, remote participation, or electronic notice without the proper statutory or ordinance framework, the approval may be vulnerable to challenge by neighboring property owners or other interested parties. Municipal attorneys should modernize procedures to ensure that approvals are not only efficient but also defensible. Transactional attorneys should verify that those approvals are reliable enough to support closing.
THE ROLE OF COUNSEL: FROM DRAFTER TO STRATEGIC ADVISOR
Real estate and municipal law practitioners should act as creative problem-solvers. Reviewing documents for basic compliance no longer suffices. Attorneys should advise municipal boards on resiliency and draft zoning documents that
can withstand changing development trends, technological shifts, and evolving community needs. Legal counsel serves as a strategic advisor by helping clients anticipate potential pitfalls and craft flexible provisions that protect the character of the community without unnecessarily infringing on property rights or discouraging responsible investment. The goal is not to eliminate municipal discretion. Complex mixed-use developments are here to stay. The real estate market will continue to change. Digital communication will remain part of municipal business. By understanding why these changes are occurring — whether due to economic pressure, housing demand, or technology — attorneys can help municipalities and developers avoid unnecessary conflict. Often, municipalities must choose whether to invest proactively in ordinance modernization now or incur significantly greater costs responding to avoidable disputes later. For transactional attorneys, thorough due diligence of zoning, land division, and municipal approval procedures before closing helps ensure that real estate investments are built on a solid legal foundation. Every real estate transaction depends on legal certainty. Purchase agreements, financing documents, title commitments, and construction timelines all assume that municipal approvals will withstand scrutiny. When zoning ordinances and land division regulations fail to provide predictable standards, that certainty begins to fade. Whether representing municipalities or developers, attorneys have an opportunity to prevent disputes before they arise. Updating local ordinances, identifying ambiguity during due diligence, and ensuring that approval procedures remain legally sound do more than facilitate closings. These actions help communities grow responsibly, protect taxpayers from avoidable litigation, and allow viable development projects to move forward with confidence. John D. Gwyn is an attorney at Cummings, McClorey, Davis and Acho PLC. His practice focuses on real estate law, community association law, commercial litigation, and municipal law. He represents developers and condominium and homeowners’ associations in matters involving real estate, contract, and construction issues. He currently serves as a committee member on the Oakland County Bar Association’s Real Estate Committee. Gwyn contributes to the Institute of Continuing Legal Education and has presented an on-demand seminar on short-term rentals. He may be reached at (734) 261-2400 or jgwyn@cmda-law.com. www.ocba.org
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FEATURE | Purchase Agreements
NEGOTIATING REPRESENTATIONS AND WARRANTIES IN PURCHASE AGREEMENTS:
The ‘Must-Haves’ vs. the ‘Nice-to-Haves’ By Erin Bowen Welch
I
n an ideal world, the parties to a transaction are knowledgeable, forthcoming, sophisticated, and diligent. When negotiating a purchase agreement, model sellers disclose all information regarding the particular property or asset and provide the proposed purchaser with the benefit of their experience, familiarity, and ownership background. Of course, in reality and practice, various real-world factors routinely limit the idealized full disclosure between the proposed parties, including the press of business, time constraints, corporate structuring, and perceived risk. For sellers, including those with a limited background or lack of knowledge about the property or asset, modified representations and warranties provide protections and assurances against potential risks. For purchasers, the inclusion and negotiation of representations and warranties in a purchase agreement can address or bring to light important information when evaluating a proposed transaction.
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Purchase Agreements | FEATURE Representations and warranties are commonly negotiated provisions in purchase agreements. With the exception of a pure “as-is” transaction (in which a seller provides no warranties or guaranties and a purchaser agrees to buy the property or asset in its exact, existing condition), representation and warranty provisions offer some initial clues or prompts for the parties of a proposed transaction. While some purchase agreements contain only “bare-bones” representations and warranties, others provide a litany of extensive and detailed provisions. These provisions are routinely limited or expanded based upon the level or degree of knowledge that may qualify them, as well as by the length, if any, of their survival period after a transaction has closed. When representing a purchaser, understanding your client and your client’s business or intended use of the property or asset is critical to the effective and efficient negotiation of these provisions. When representing a seller, how long your client has owned the property or asset and the client’s depth of knowledge will be guiding factors during negotiation. Knowing when to push for a “need” versus a “want” or when to back off from a “nice-to-have” versus a “must-have” can help finalize the negotiation of a purchase agreement and move your client closer to a successful closing, the ultimate goal of any transaction.
THE “MUST-HAVES”
Among the list of “must-have” representations and warranties in a purchase agreement are the basic fundamentals of a contract. These basics include a party’s authority to enter into and bind itself to the terms and provisions of the purchase agreement and, on the seller side, the representation that a party owns and has the legal right to sell and convey the property. Prior to spending time or resources pursuing a transaction, it is reasonable for one party to assure the other of its ability to proceed. Other “must-have” representations include matters that a proposed purchaser would have no means or ability to discover without the seller’s disclosure. In a real estate setting, examples include but are not limited to whether the property was subject to any recent construction or improvements for which a lien may arise; whether any unrecorded leases affect the property; whether the selling party is a “foreign person” (as defined in the Internal Revenue Code) and thus subject to withholding requirements; and whether the property is a Part 201 Facility (for which environmental disclosure is required by Michigan statute). Additionally, a representation from a seller that it will not enter into a “backup” agreement or otherwise solicit additional, competing offers for the property protects the parties from unnecessary interference. A seller may also require a purchaser to represent its financial ability to complete the transaction; however, a
seller may consider a satisfactory earnest money deposit sufficient assurance as to this item.
THE “NICE-TO-HAVES”
After the “must-have” representations and warranties, the “nice-to-have” category provides a prospective purchaser with potential leads as to the areas of diligence to pursue. While a purchaser’s individual diligence or inspections (in particular, title, survey, environmental, and property condition assessments) can investigate or prove the substance of many “nice-tohave” representations, providing the following representations in a purchase agreement lends additional efficiency and comprehensiveness to the purchaser’s actions: • There are no toxic or hazardous substances in, on, under, or migrating to or from the property in excess of applicable laws. • The property is not subject to any agreements or restrictions that would not be evidenced in an updated title commitment. • The property is not subject to any pending or threatened condemnation, legal, or other administrative actions. • There are no pending violations of any laws with respect to the property (including zoning, land use, building, fire, labor, environmental, occupancy, and health laws). • There are no proposed or actual special assessments affecting the property. • The property is currently zoned as [___________], and [________] is a permitted use.
• There is no litigation or proceeding pending or threatened against the seller or the property. • Utility services are available to the property at no additional expense. • Any improvements or buildings on the property and all mechanical, electrical, plumbing, and other building systems are in good condition and working order. • The property has access to a public right of way, either directly or indirectly, such as through an easement agreement. • There are no encroachments onto the property or from the property onto adjacent parcels, and there are no pending boundary disputes. A purchaser’s best practices for diligence include obtaining, without limitation, a title search, survey, environmental assessment, property condition assessment, zoning compliance letter, and litigation searches to confirm the accuracy and completeness of any “nice-to-have” representations and warranties. Relying on a seller’s representation alone, without the confirming diligence, may not sufficiently protect a purchaser. If a seller demonstrates a reluctance to provide a “nice-to-have” representation, a purchaser can likely obtain the same or more information addressing the subject of such representation in another manner, albeit at the purchaser’s expense. If a seller hesitates to provide representation regarding encroachments, for example, then a purchaser can otherwise satisfy itself that no such encroachments exist (or otherwise specifically identify the nature and extent of any existing encroachments) with an accurate survey of the
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FEATURE | Purchase Agreements
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property. Similarly, if a seller is unwilling to provide a representation regarding zoning compliance, a purchaser may seek a zoning compliance letter from the applicable municipality or pursue a third-party zoning report to confirm the same. Phase I environmental site assessments and property condition assessment reports can be time-consuming and expensive, but both types of investigations often backstop or assist a purchaser in lieu of a representation from the seller as to such items.
KNOWLEDGE QUALIFIERS AND SURVIVAL
Knowledge qualifiers and survival periods can limit the scope and duration of both the “musthave” and the “nice-to-have” representations and warranties. While a seller may be unwilling to give absolute representations and warranties, such provisions may be more palatable if modified by knowledge qualifiers and limited in length of survival. An understanding of how to use the limitations of knowledge qualifiers and survival periods is critical in the back-and-forth negotiation of a purchase agreement. A representation may be only as good as its quality, gauged on the degree of knowledge the seller offers in support. In general, there are three types of knowledge qualifiers: an absolute statement, a “best-of-knowledge” statement, and an “actual-knowledge” statement. An absolute statement, such as “no encroachments affect the property,” is an unqualified representation and guaranty that no encroachments affect the property. A seller who has owned a property for a long, uninterrupted period or has recently obtained an accurate survey may feel comfortable with this type of representation. In comparison, the slightly modified “to the best of the seller’s knowledge, no encroachments affect the property” provides that the seller is unaware of any encroachments after conducting a reasonable inquiry, on a “knew-or-should-have-known” basis. In this instance, a seller may have walked the property boundaries or examined its files for existing surveys to confirm the lack of encroachments. Lastly, “to the actual knowledge of the seller, no encroachments affect the property” provides that, to the seller’s actual conscious awareness, the seller, at the time the purchase agreement was signed, did not know of any encroachments affecting the property; however, the seller had no obligation to conduct a search or review any files. The level of knowledge qualifying a representation may negate the value of its inclusion in a purchase agreement if such level of knowledge renders the representation of little or no additional value. Related to the levels of knowledge, another approach frequently used in purchase agreements is qualifying a representation as to notice received. For example, “the seller has received no
written notice of any encroachments affecting the property” could mean that while the seller is not willing or able to review any existing files or surveys, obtain a new survey, or make an absolute statement, the seller is willing to state that it has not received any written notices from adjacent property owners, easement holders, or other third parties regarding an encroachment. The duration of the applicable survival period can also modify representations and warranties. If unspecified, these provisions generally “merge” with the vesting deed or bill of sale and do not survive beyond the closing date. Alternatively, a purchase agreement may specifically state that representations and warranties survive for an indefinite period (forever!) or a limited period after closing, such as 90 days, six months, or one year. Including or excluding a survival period is yet another tool to strengthen or reduce the impact of such provisions in a purchase agreement. Knowing whether a survival period is of importance or special value to your client can be helpful during negotiations.
CONCLUSION
As with all things, opinions may vary greatly as to which traditional representations and warranties are “must-haves” or “nice-to-haves.” The specifics of a transaction may also dictate whether a purchase agreement may offer any representations at all. In general, identifying specific facts or pieces of information that your client could not otherwise determine independently are of most importance. Even “nice-to-have” representations can point a potential purchaser in a specific direction for its diligence and allow for full discovery and disclosure. For a seller, effectively using knowledge qualifiers and survival periods can limit potential risk. Apart from using representations and warranties as fact-finding devices, knowing your client’s goals and which provisions are truly important to your client (versus those that can be traded for other contract provisions that the client deems more meaningful) is a beneficial strategy and can help facilitate a successful transaction. Erin Bowen Welch, a member at Dawda PLC, concentrates her practice in real estate, business, and corporate transactions. She holds degrees from Miami University and the Michigan State University College of Law. Not only is Welch licensed to practice law in Michigan and Illinois, but she is also a licensed real estate broker. She lives in Birmingham with her husband, Nate, and their two children.
National Security | FEATURE
EXPANDING NATIONAL SECURITY SCRUTINY OF REAL ESTATE TRANSACTIONS:
The Convergence of CFIUS Authority and State-Level Regulation By Anthony J. Scalise, Derek Mullins, Josie Clerford, and Emma Hammoud I. INTRODUCTION
N
ational security considerations have increasingly reshaped the regulatory landscape governing foreign investment in the United States. While this regulation has historically focused on controlling acquisitions of U.S. businesses, scrutiny has recently expanded to other transactions involving critical infrastructure and into an area once viewed as largely benign: real estate ownership. At the federal level, the Committee on Foreign Investment in the United States (CFIUS) has broadened its jurisdictional reach to include certain real estate transactions through the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). Indeed, a 2024 U.S. Department of Treasury final rule further expanded CFIUS’s jurisdiction to include, among transactions near other sensitive sites, the acquisition of real estate within a 1-mile radius of Detroit Arsenal and within a 100-mile radius of Camp Grayling.
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FEATURE | National Security In the last several years, states have pushed to introduce their own restrictions on foreign ownership of U.S. land, reflecting a growing concern that such ownership may present strategic risks unaddressed by CFIUS’s jurisdictional gaps. Michigan’s House Bill 4233 (HB 4233) and House Bill 4234 (HB 4234), introduced in 2025, exemplify this emerging state-level approach. Together, these developments reflect a structural shift in how policymakers conceptualize physical proximity, land use, and national security, signaling important implications for foreign investors, real estate developers, and legal practitioners.
II. THE EVOLVING ROLE OF CFIUS IN FEDERAL INVESTMENT OVERSIGHT
CFIUS is an interagency committee, chaired by the secretary of the treasury, authorized to review specified transactions involving foreign investment in the United States. However, until 2018, CFIUS’s jurisdiction had remained unchanged for decades, focusing narrowly on transactions resulting in control of U.S. businesses. Further, the decision of whether to notify CFIUS of pending transactions involving foreign acquisitions of U.S. businesses was left in the hands of the parties to such transactions. In order to address the shifting nature of foreign investment in the United States and the evolving national security environment, Congress passed FIRRMA, which made jurisdictional and substantive changes relating to CFIUS’s review of foreign investment. These changes included requiring mandatory filings of notifications for certain transactions, expanding CFIUS’s reach to allow for review of acquisitions of noncontrolling interests in U.S. businesses, and giving CFIUS the authority to review certain stand-alone “covered real estate transactions.”1 Covered real estate transactions confer upon the purchaser enumerated property rights in “covered real estate,” defined2 to include real estate within a specified proximity of U.S. military and government installations, including real estate that falls within the following criteria: • Within “close proximity” (i.e., a 1-mile radius of any military installation/U.S. Government facility or property identified in Parts 1 or 2 of Appendix A to 31 C.F.R. Part 802); and • Within the “extended range” (i.e., a 100mile radius of any military installation/U.S. Government facility or property identified in Part 2 of Appendix A to 31 C.F.R. Part 802). In addition to expanding CFIUS’s jurisdictional reach, FIRRMA requires parties to
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a transaction to submit a mandatory CFIUS notification where there are foreign investments in U.S. businesses involved with critical technologies, critical infrastructure, or sensitive personal data (referred to in the CFIUS regulations as “TID U.S. Businesses”) and certain requirements are met.3 For other transactions, including covered real estate transactions, submission of a CFIUS notification remains voluntary; however, parties only receive a safe harbor if they make a voluntary CFIUS filing and CFIUS either determines that there are no unresolved national security risks or that it is without jurisdiction to review the transaction in question. On the other hand, where parties have not filed a voluntary notice, CFIUS may treat the transaction as a “non-notified transaction” and unilaterally initiate a review. A party submitting a CFIUS filing may either submit a short form “declaration” (with an expedited review period) or a more comprehensive “notice.” Each type of filing has its advantages and disadvantages depending on the transaction involved. If CFIUS determines that a transaction within its jurisdiction presents sufficient national security risks, then CFIUS may impose mitigation measures upon the parties to the transaction or even refer the transaction to the president, who then has the authority to block or unwind it. Legal professionals and businesses involved in potentially impacted transactions should also consider the time period required for CFIUS review of a covered real estate transaction: up to 90 days after filing a notice, with the potential for up to 15 additional days for a presidential-level review.
III. HOW REAL ESTATE REGULATION SERVES NATIONAL SECURITY INTERESTS
The expansion of CFIUS to include real estate transactions represented a marked change in the regulation of foreign investment. For the first time, foreign investment scrutiny extended beyond companies and into land itself. This expansion reflects a key insight: Ownership of physical space can pose national security risks, even in the absence of a business acquisition. This is perhaps unsurprising given regulators’ concern about the sheer volume of foreign investment in the U.S. real estate market, which is estimated to have exceeded $1 trillion in the last 15 years. In a 2024 U.S. Government Accountability Office report,4 the congressional watchdog noted that according to the U.S. Department of Agriculture, foreign investment in U.S. agricultural land grew to almost 40 million acres in 2021. U.S. real estate is widely considered a safe-haven asset for foreign investors. And given
the relative strength of the U.S. economy worldwide, as well as the presence of a large, liquid U.S. real estate market, this trend is likely to persist absent significant regulatory intervention. The current administration, certainly not alone on this front, has framed unchecked foreign investment as a direct threat to national security. For example, in a February 21, 2025, National Security Presidential Memorandum entitled America First Investment Policy, the White House called on CFIUS to bring to bear its full resources to counteract foreign investment, framing the threat, particularly with respect to the People’s Republic of China (PRC), quite bluntly: “Economic security is national security.” A more acute national security concern, highlighted by several recent high-profile cases, involves the proximity of foreign-owned real estate to military installations or other facilities that would allow a foreign actor to gather intelligence or conduct surveillance of such facilities. For example, in late 2022, CFIUS determined that it did not have jurisdiction to review a PRC firm’s purchase in connection with a corn milling project near Grand Forks Air Force Base in northeastern North Dakota. Likewise, in 2023, a handful of lawmakers sharply criticized then-Treasury Secretary Janet Yellen for CFIUS’s determination that it lacked the jurisdiction to review the acquisition of land in Mecosta County, Michigan, by an electric vehicle battery manufacturer with alleged ties to the Chinese Communist Party. Finally, in May 2024, President Biden issued a divestment order relating to a June 2022 transaction, in which MineOne Cloud Computing Investment I L.P. and its affiliates (collectively, “MineOne”), majority-owned by PRC nationals, acquired real estate within 1 mile of Francis E. Warren Air Force Base, located near Cheyenne, Wyoming.5 Upon referral of the transaction to President Biden, he took the extraordinary step of issuing an order requiring divestment and removal of equipment and improvements to the land. This followed CFIUS’s assessment that MineOne’s use of the property for cryptocurrency mining operations, using foreign-sourced equipment capable of facilitating foreign espionage activities, near one of only three strategic missile bases in the U.S. and a key element of the U.S. nuclear triad presented an unacceptable national security risk. Such instances spurred legislative calls to expand CFIUS’s jurisdiction beyond its limits at the time, including a November 2024 U.S. Department of Treasury final rule, which expanded CFIUS’s authority to review covered real estate transactions by adding a number of military installations subject to CFIUS review. As is relevant to Michigan businesses, Part 1 of Appendix A includes the Detroit Arsenal, and
National Security | FEATURE Part 2 of Appendix A includes Camp Grayling.
IV. A RISK-BASED, TRANSACTION-SPECIFIC SYSTEM FOR FEDERAL REGULATION OF FOREIGN REAL ESTATE INVESTMENT
Despite its broader reach, CFIUS remains a flexible, case-by-case review system rather than a regime of blanket prohibitions. Regarding foreign investment in U.S. real estate, the following applies under the current CFIUS framework: 1. Only certain transactions involving defined categories of real estate are subject to review. 2. The analysis turns on the specific facts of the transaction, including the location, the foreign investor, and the potential for national security risk. 3. The federal government retains discretion to clear the transaction, impose mitigation measures, or block it entirely if necessary. This approach reflects a deliberate policy choice. Rather than restricting entire categories of foreign ownership, Congress opted for a system that can differentiate between benign investments and those that pose genuine risk. At its core, the CFIUS regime centers on balance. The United States has long relied on foreign capital as a driver of economic growth, and Congress has avoided unnecessarily disrupting that flow. Accordingly, CFIUS does not treat foreign ownership as inherently problematic. Instead, it assumes that foreign investment, while generally beneficial, may require intervention in specific, high-risk situations. This balancing function distinguishes the federal framework. It preserves openness to investment while ensuring
that national security concerns can be addressed with precision. Against this backdrop, including CFIUS’s jurisdictional limitations and gaps, various states have attempted to address growing calls to confront the national security concerns posed by foreign investment in U.S. real estate by passing various pieces of legislation aimed at curtailing the ability of foreign investors to acquire real estate in their respective states. In this regard, more than 25 states restrict or prohibit foreign ownership of U.S. real estate, while a number of others, such as Michigan, have pending legislation regarding such restrictions.6
V. STATE-LEVEL DEVELOPMENTS: MICHIGAN HB 4233 AND HB 4234
Introduced in March 2025, HB 4234 was proposed as a companion measure to HB 4233. While HB 4233 broadly seeks to restrict foreign ownership and control of agricultural land throughout Michigan, HB 4234 takes a more targeted approach by focusing on foreign interests in real property located in close proximity to military installations and other critical infrastructure facilities.7 HB 4234 would amend Michigan law to prohibit certain “foreign principals” from directly or indirectly acquiring an interest in real property located within a 20-mile radius of a military installation or designated “key facility.” The bill’s geographic restrictions could affect properties near military sites such as Selfridge Air National Guard Base, Camp Grayling, and the Battle Creek Air National Guard Base, as well as a wide range of critical infrastructure assets. For purposes of the legislation, “key facilities” include essential infrastructure such as electric generation and transmission facilities, telecommunications networks, transportation systems, water treatment facilities, ports, and airports that are
considered vital to national security, public safety, or economic stability.8 Consistent with HB 4233, HB 4234 adopts a broad definition of “foreign principal.” The term encompasses foreign governments and political parties, as well as business entities organized under, headquartered in, or otherwise associated with specified countries of concern, which include China, Russia, Iran, North Korea, Cuba, Syria, and Venezuela. The term “foreign principal” also includes individuals who are domiciled in those countries and who are neither United States citizens nor lawful permanent residents. By defining “foreign principal” in these expansive terms, the bill seeks to reach not only direct acquisitions of real property but also indirect ownership structures involving subsidiaries, affiliates, holding companies, and other layered ownership arrangements.9 Like its companion measure, HB 4234 is primarily prospective in its operation. Foreign principals that already hold qualifying property within the 20-mile buffer at the time the law takes effect would not be required to immediately divest those interests. However, they would be barred from acquiring additional property within those zones going forward. To promote transparency and regulatory oversight, such entities would be required to register their existing property interests with the state, disclosing detailed information regarding ownership and parcel location.10 The bill also anticipates circumstances in which prohibited ownership may arise after enactment. For example, a foreign principal could come into possession of covered property through inheritance, foreclosure, or debt collection. In such cases, HB 4234 generally requires divestiture within a two-year period. This provision mirrors similar language in HB 4233 and is intended to prevent indirect or inadvertent circumvention of the statute’s ownership restrictions. Notably, HB 4234 contains several limited exceptions to its general prohibition on foreign ownership of property within restricted zones. These exceptions include interests in real property held for diplomatic purposes and officially recognized by the U.S. government, as well as certain agricultural or scientific research activities conducted pursuant to agreements that have received appropriate federal authorization and oversight. The inclusion of these carve-outs reflects an effort to align the proposed state law restrictions with existing federal regulatory frameworks governing foreign investment and national security, including review processes administered by CFIUS. As of May 13, 2025, HB 4234 has been referred to the Senate Committee on Government Operations and is pending review. www.ocba.org
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FEATURE | National Security
VI. FEDERAL-STATE INTERACTION AND POTENTIAL TENSIONS
HB 4234 and the CFIUS regime aim to address the same general concern: national security risks tied to foreign ownership or control of real property near sensitive sites; however, they approach that concern in very different ways. HB 4234 uses a categorical state-law prohibition, while CFIUS relies on a federal review process that examines transactions individually. HB 4234 draws a clear line around certain real estate transactions. It would prohibit “foreign principals” connected to designated “countries of concern” from acquiring or holding real property within 20 miles of military installations and certain critical infrastructure, including energy, telecommunications, and transportation facilities.11 The bill is designed to be rigid; if the property is in the covered area and the buyer is a covered foreign party, the transaction is generally prohibited, with only limited exceptions. Existing interests may be kept, but they must be disclosed and registered with the state. State authorities would enforce the law through civil penalties and, where appropriate, divestiture remedies.12 As highlighted above, CFIUS works differently. Rather than banning transactions by category, CFIUS reviews certain foreign investments to determine whether they raise national security concerns. The two systems also assess geographic risk differently. HB 4234 applies a uniform 20-mile buffer around covered sites, making the rule straightforward but potentially overbroad because the same distance applies to every covered location. CFIUS takes a more tailored approach, using different distance thresholds based on the type and sensitivity of the site. Some installations trigger “close proximity” jurisdiction, generally within 1 mile, while others may trigger “extended range” jurisdiction of up to 100 miles. This framework allows for greater nuance, but it also makes the analysis more complex. The laws also cover different parties. HB 4234 focuses on individuals and entities tied to designated countries of concern, so its restrictions turn largely on national affiliation.13 CFIUS is broader. It can review transactions involving any “foreign person,” defined, regardless of nationality, to include a “foreign national,” “foreign government,” “foreign entity,” or any entity over which control is exercised or exercisable by one of the foregoing. They also focus on different aspects of a transaction. HB 4234 is mainly concerned with ownership: who may acquire or hold property in restricted areas. CFIUS looks more broadly at what the foreign party receives through the deal, including access, development,
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control, or exclusion rights, and whether those rights could support surveillance, intelligence gathering, or interference with sensitive facilities. Taken together, HB 4234 and CFIUS create overlapping layers of review. HB 4234 reflects a state-level effort to prevent certain transactions before they occur by using bright-line restrictions. CFIUS, by contrast, preserves flexibility through a risk-based federal review process. As a result, HB 4234 could prohibit a transaction even if CFIUS may have allowed it with mitigation. Conversely, CFIUS could still review a transaction outside HB 4234’s scope. In short, HB 4234 takes a more rigid, prohibition-based state approach, while CFIUS remains a broader and more flexible federal screening process designed to balance foreign investment with national security concerns.
VII. PRACTICAL IMPLICATIONS FOR INVESTORS AND PRACTITIONERS
The expansion of CFIUS review into certain real estate transactions, coupled with proposed state laws such as Michigan’s HB 4234, means that national security has become an increasingly important consideration in real estate deals. Investors can no longer focus solely on traditional issues such as title, zoning, and financing. They must also consider whether a property’s location or ownership structure could trigger federal review or state-law restrictions. As a practical matter, investors and their advisors should evaluate early in the transaction process whether a property is located near a military installation, critical infrastructure facility, airport, or other sensitive site. Ownership structures also warrant closer scrutiny, as both CFIUS and state legislation increasingly focus on the ultimate source of foreign ownership and control. Ownership structure analysis will become increasingly important under both the CFIUS framework and proposed state laws, such as HB 4234. Neither regime focuses solely on the identity of the immediate purchaser. Instead, regulators often look beyond the acquiring entity to determine who ultimately owns, controls, or benefits from the investment. As a result, transactions involving holding companies, subsidiaries, private equity funds, joint ventures, or other layered ownership arrangements may require additional scrutiny. For investors, this means that what appears to be a domestic transaction may nevertheless raise concerns if foreign individuals, entities, or governments possess direct or indirect ownership interests. Legal counsel will therefore need to conduct more extensive beneficial ownership re-
views and carefully evaluate corporate structures to identify potential regulatory issues before closing. Increased scrutiny of ownership chains may also require more detailed disclosures to lenders, counterparties, and regulators, adding both time and cost to the due diligence process. In practice, investors should expect ownership transparency to become a routine component of real estate transactions involving sensitive locations or foreign capital. These developments will likely increase due diligence costs, lengthen transaction timelines, and require more careful allocation of regulatory risk in purchase agreements and financing documents. In addition, investors operating across multiple states must navigate an emerging patchwork of federal and state regulations that may impose different standards and restrictions. Relatedly, there have already been legal challenges to state statutes on numerous grounds, including federal preemption.14 Given the differences among the various pieces of state legislation targeting foreign investment, courts’ consideration of this issue may vary from jurisdiction to jurisdiction, thus requiring ongoing awareness of relevant legal developments. Ultimately, the key takeaway is that national security review is no longer limited to acquisitions involving defense contractors or sensitive technologies. Real estate transactions themselves may now present regulatory concerns, making early analysis and proactive compliance essential for investors and practitioners alike.
VIII. CONCLUSION
The expansion of CFIUS into real estate transactions, combined with the growing number of state-level restrictions on foreign land ownership, reflects a fundamental shift in how lawmakers view the relationship between property ownership and national security. Michigan’s proposed HB 4234 illustrates this trend, complementing the federal government’s risk-based review process aimed at sensitive locations near military installations and critical infrastructure. The result is a layered set of rules that foreign investors, developers, and lenders must navigate. As federal and state governments continue to refine their approach, proactive due diligence and early regulatory analysis will be essential to navigating an increasingly complex landscape between real estate investment opportunities and national security interests.
National Security | FEATURE
Josie Clerford, a Butzel summer associate, is a rising 3L at University of Michigan Law School, where she is a Dean’s Scholar and executive editor for the Michigan Journal of Race and Law.
Anthony J. Scalise, a Butzel shareholder, advises aerospace and defense clients on foreign investment, CFIUS reviews, government contracts, and related national security issues. For more than 20 years, he has counseled clients on sensitive complex U.S. asset transactions, including real estate and operations near military and other national security sites. Derek Mullins, a Butzel shareholder, advises on federal procurement, bid protests, post-contract claims, prime-sub disputes, FCA and procurement fraud, SBA issues, data rights, security clearances, export controls, compliance, and ethics. An experienced litigator, he handles commercial, real estate, class action, antitrust, and administrative law matters.
Emma Hammoud, a Butzel summer associate, is a rising 3L at Michigan State University College of Law, where she is involved in Moot Court and the Geoffrey Fieger Trial Practice Institute. Footnotes: 1. 31 CFR § 802.212. 2. Id. § 802.211. 3. Id. § 800.401. 4. U .S. GOV’T ACCOUNTABILITY OFF., GAO-24106337, Foreign Investments in U.S. Agricultural
Land: Enhancing Efforts to Collect, Track, and Share Key Information Could Better Identify National Security Risks (2024). 5. U .S. DEP’T OF THE TREASURY, Statement on the President’s Decision Prohibiting the Acquisition by MineOne Cloud Computing Investment I L.P. of Real Estate, and the Operation of a Cryptocurrency Mining Facility, in Close Proximity to Francis E. Warren Air Force Base (2024). 6. S tatutes Regulating Ownership of Agricultural Land, NAT’L AGRIC. L. CTR., nationalaglawcenter.org/ state-compilations/aglandownership (last visited July 10, 2026). 7. S ee Mich. H.B. 4234, 103d Leg., Reg. Sess. (2025); see also H.B. 4233, 103d Leg., Reg. Sess. (2025). 8. Mich. H.B. 4234, 103rd Leg., Reg. Sess. (2025). 9. S ee Mich. H.B. 4234, 103rd Leg., Reg. Sess. (2025); see also Mich. H.B. 4233, 103rd Leg., Reg. Sess. (2025). 10. See Mich. H.B. 4234, 103rd Leg., Reg. Sess. (2025). 11. Mich. H.B. 4234, 102d Leg., Reg. Sess. 12. Id. (enforcement provisions, including registration, penalties, and divestiture mechanisms) 13. Mich. H.B. 4234 (country-based restrictions on covered foreign principals). 14. See, e.g., Yifan Shen v. Comm’r, 158 F.4th 1227 (11th Cir. 2025).
altiorlaw.com KENNETH NEUMAN, JENNIFER GRIECO, STEPHEN MCKENNEY, MATTHEW SMITH, DAVID MOLLICONE
www.ocba.org
19
FEATURE | Intellectual Property 1. I dentify the intellectual property to be transferred. 2. Verify that the seller owns the intellectual property in question. 3. B uild terms into the acquisition documents that require the seller to support the transfer. 4. P erfect the transfer of ownership by recording assignments in the appropriate patent and trademark offices worldwide. 5. Plan for ongoing business coexistence. 6. M aintain the intellectual property portfolio.
STEP 1: IDENTIFY
Six Steps for Acquiring Intellectual Property By Jessica Fleetham
T
his article is for business lawyers who find themselves involved in acquiring intellectual property. While many acquisitions are straightforward, certain pitfalls can make a transfer of rights ineffective or even result in the loss of rights. Here are six steps a buyer can take to ensure that the intellectual property emerges from the acquisition unscathed.
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The first step for any buyer of intellectual property is to identify it. An intellectual property portfolio may include assets memorialized in patents, trademarks, or copyrights. It may also include assets that have not been memorialized (such as new inventions, common law trademark rights, or common law copyrights) or assets that are not typically memorialized in this manner at all (such as trade secrets and know-how). Ideally, the acquisition documents will clearly identify all intellectual property being acquired. While this step may seem easy, the extent of an intellectual property portfolio can be difficult for a buyer to verify in situations in which the seller cannot or does not freely share information. For instance, a buyer can easily independently identify a United States company’s trademarks and trademark applications through public United States Patent and Trademark Office (USPTO) records and ensure the transfer of all the appropriate trademarks and trademark applications. However, the USPTO does not publish patent applications until 18 months from the earliest filing date, so a buyer would not know of a recently filed patent application unless the seller discloses it. Likewise, language barriers, lack of access, and limited familiarity with foreign patent systems can make foreign patent applications difficult to track down.
STEP 2: VERIFY
Once the buyer has identified the intellectual property to acquire, the buyer should verify that the seller actually owns it. This is of particular concern for patents and copyrights because the individual who created them owns the rights by default. For example, consider the acquisition of a patent from an engineering firm. Though the firm may have commissioned the filing of the
Intellectual Property | FEATURE patent application and likely has provisions in its employment agreement stating that employees’ inventions belong to the firm, the rights to the patent still default to the individual inventors. They must assign their rights to the firm, and the firm must file the assignment with the USPTO to perfect its ownership. Similarly, the author of a work owns its copyrights by default unless a “work made for hire” agreement is in place. If a company forgets to have its graphic designer sign such an agreement, the graphic designer owns the copyrights in digital assets created for the company. Any gaps in a seller’s purported ownership of the intellectual property to be acquired should be addressed before the acquisition.
STEP 3: SELLER OBLIGATIONS
A buyer will often include warranties and representations in the acquisition documents that require the seller to confirm that it owns and has the capacity to sell the intellectual property at issue. This can give the buyer recourse against the seller if an issue arises with the seller’s rights. In addition, a buyer should consider including terms that require the seller to take all steps necessary to facilitate the transfer and perfection of all the intellectual property rights being acquired (“facilitation term”). For example, patent inventors must sign a declaration to be filed with the USPTO before a patent will issue. If this document is missing, a buyer with no ongoing relationship with the inventor may face difficulty getting a signature. While there are ways around this in cases involving an uncooperative inventor or one who cannot be found, the simpler course may be to ask the seller to get the inventor’s signature. A facilitation term would create a contractual obligation for the seller to assist with this process.
STEP 4: RECORD ASSIGNMENTS
Acquisition documents will include assignments for “memorialized” intellectual property rights (patents, registered trademarks, and registered copyrights). The best practice is to record
assignments with the USPTO or United States Copyright Office. For example, in the United States, a patent assignment can be considered void against a subsequent purchaser who had no notice of it. Assignments are normally separate from other acquisition documents (such as those spelling out payment terms) to obviate the need to file more detailed — and potentially confidential — documents publicly. For patent and trademark transfers especially, certain “magic words” are widely accepted to create effective assignments. For instance, a patent assignment will typically include the phrase “does hereby assign.” Patent assignments often also assign ancillary rights, such as the right to claim priority to the assigned property and the right to file foreign patent applications corresponding to the assigned property. Likewise, trademark assignments must assign not only the trademark itself but also the “goodwill” associated with it. A business lawyer may consider consulting with a specialist on this piece of an acquisition to ensure that the portfolio is correctly assigned to the buyer. In some overseas countries, the lawyer handling the assignment recordation may need signatures from both the buyer and the seller. Ideally, a plan for recording foreign assignments would be put into place during the acquisition so that the necessary documents can be executed, avoiding the need to track down the seller’s representative later on. This can be particularly difficult if the seller is dissolving or otherwise not continuing its business. (This is another instance when a facilitation term may come in handy.) Many U.S. patent and trademark lawyers work with a network of overseas lawyers and can help plan and execute these tasks.
STEP 5: PLAN FOR ONGOING BUSINESS
If the seller plans to continue a competing or adjacent business and is selling less than its entire intellectual property portfolio, the buyer should consider the possibility of future intellectual property disputes. For instance, the buyer may
want to bargain for covenants not to sue or licenses to the seller’s retained patents. On the trademark side, if both parties will continue to use the same trademark, the parties may enter into a coexistence agreement clearly defining the rules for their respective trademark use. One potential pitfall is a situation in which a seller has a single trademark registration for multiple goods and services. As a basic example, the trademark ACMECO is registered for (1) construction services and (2) construction equipment. The seller is continuing to offer construction services but is selling its construction equipment business to the buyer, who will continue that business under its own brand. The seller retains the trademark registration from ACMECO in the acquisition. The buyer may consider requiring the seller to affirmatively cancel construction equipment from its registration.
STEP 6: MAINTAIN THE PORTFOLIO
Once the acquisition is complete, the buyer must be aware of ongoing fee requirements and other deadlines. Issued U.S. patents have maintenance fees due three times over the patent’s lifetime. If the owner does not pay these fees, the patent rights are deemed abandoned. Foreign jurisdictions also require periodic fee payments, some on an annual basis. Registered U.S. trademarks must be renewed every five years by showing the trademark is still in use and paying a fee. If the portfolio consists of registered patents and trademarks only, other services handle the fee payments. Pending patent and trademark applications require monitoring for communications from the relevant patent and trademark offices. If buyers do not file a response within a prescribed timeframe, they lose their right to pursue the patent or trademark application. If the portfolio includes pending patent and trademark applications, a competent intellectual property lawyer should be engaged. Jessica Fleetham is a litigator with a decade of experience in intellectual property and complex commercial matters with a technology focus. She has litigated in district courts nationwide, the Federal Circuit, and the U.S. Supreme Court, and she handles USPTO post-grant proceedings and ITC investigations. Fleetham focuses on identifying what matters, cutting through noise, and moving cases forward efficiently. She is the founder and managing partner of the litigation boutique Evia Law in Birmingham. www.ocba.org
21
ON THE CIRCUIT
House Rules By Richard Lynch
I
frequently receive calls from attorneys and litigants questioning various Sixth Circuit Court practices and asserting (sometimes implying, but more often forcefully asserting) that “the fix is in,” as if the court is somehow complicit in fraudulent activity that favors the opposing party. In reality, their issues often revolve around a court rule or procedure that they did not know existed. As we work through the caller’s concerns, I find that many of the answers lie in the Sixth Circuit’s local court rules, local administrative orders, and individual judge protocols, if not in the general court rules. Many callers express surprise when I identify the rule or procedure that governs the issue. They appreciate and accept the referenced authority. Others consider my explanation evidence of a broken system designed to thwart “justice.” I compare this to my experience playing Monopoly with kids in my neighborhood when I was growing up. One kid must have slept with the box because he knew the rules backward and forward. To be fair, he also had a unique take on some of the rules. Whenever we played Monopoly, I recall encountering a curious but plausible interpretation of the rules that did not appear on the box but inevitably worked to this kid’s advantage. House rules? Or, as Mark Knopfler put it: You can’t fool a fooler I can tell When a John got jazzed By a Jezebel. You can’t beat the house. You can’t beat the house.1 Let me be clear — THERE IS NO FIX! The court, composed of hardworking individuals from judges to entry-level clerks, works diligently to provide access to a reliable system of justice. It may seem clunky at times. Some cases may take longer to resolve than anyone could have anticipated or desired. And
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yes, appellate courts sometimes reverse the trial court’s decisions. I submit that this evidence supports the fact that the legal system works, not that there is a “fix.” Beginning with this simple thesis, let me move on to the “house rules” concern. Michigan recognizes the need for and purpose of local rules and orders. See MCR 8.112.2 In addition, in the Sixth Circuit, judges publish their individual protocols on the court’s website. I recommend that those appearing before the court familiarize themselves with these requirements. The Sixth Circuit has nine local court rules located on the court’s website, on the SCAO website, and in many of the published court rule books. Local court rules regulate practice in a court in a manner that does not conflict with the general court rules. MCR 8.112(A) (1). Local rules of note for practitioners include the following: - LCR 2.119 – Motion Practice, which establishes the court mandate for a praecipe for a motion. - LCR 3.205 – Prior and Subsequent Orders and Judgments Affecting Minors and LCR 3.208 – Powers and Duties of Friend of the Court, which establish important requirements for family court practitioners. - LCR 8.115 – Court Decorum, which speaks to various internal courtroom conduct issues. Of note, with the creation of Oakland County’s Indigent Defense Services Office, LCR 6.101 – Termination of Circuit Court Appointment of Attorneys and Submission of Fee Vouchers, no longer controls. The court is working to rescind this rule. Local administrative orders address internal court procedures. MCR 8.113(B)(1). For the Sixth Circuit, local administrative orders, also known as LAOs, cover subjects as varied as access to records, the family court plan, assignment of cases by division, selection of case evaluators,
access to Friend of the Court records, access to juror questionnaires, and language access. The key to both local court rules and local administrative orders is the clarification that each provides for practice within the court. For while Michigan’s Supreme Court presides over “one court of justice,” operations within each of the subordinate courts differ in a way that reflects that court’s culture. For example, while a criminal practitioner in the Third Circuit or 36th District courts may hear a request for a capias or ask that the court assign a defendant to HYTA (pronounced hī d ), practitioners in the Sixth Circuit will address a request for a bench warrant and ask for placement on YTA (pronounced Y-T-A). Each court’s house rules reflect its individual culture and are memorialized in local court rules and administrative orders. However, unlike the corrupt environment that Mark Knopfler describes in his song “You Can’t Beat the House,” each court outlines the rules. It is the duty of practitioners in the court to learn these requirements to ensure that an error does not derail their case. I encourage you to take a moment to review the local rules and orders if you haven’t done so recently to avoid any unintended consequences of a published but overlooked requirement. Richard Lynch is the court administrator for the Oakland County Circuit Court. Footnotes: 1. Mark Knopfler, “You Can’t Beat the House,” Get Lucky, 2009. 2. Indeed, the Court of Appeals even has internal operating procedures that reflect practices within its clerk’s office.
July 2026 DATE STARTED
JURY TRIALS & UTILIZATION JUDGE
CASE NUMBER CASE NAME
ATTORNEYS
7/20/2026
Anderson
2025-294973-FH People v. Merryman
Lydia Mikail Elias Muawad
7/7/2026
Cohen
2024-209658-NO E.G. v. Continental Automotive Systems et al.
J. Marko J. Eads III A. Farris S. Goodwin
7/28/2026
Cohen
2024-209676-NO Vincent Gibson v. Continental Auto Systems et al.
J. Marko J. Eads III S. Goodwin G. Meihn
7/13/2026
Matis
2025-294975-FC People v. Love
7/13/2026
Matthews
6/29/2026
TYPE OF CASE
DISPOSITION
JURY DAYS
Assault w/I GBH or by Strangulation, Felonious Assault, DV
Guilty as Charged
1.5
G. Meihn C. Cameron J. Bullard
Other Personal Injury
Verdict for Plaintiff $896,462,970.00
10.5
C. Cameron J. Ebner
Other Personal Injury
In Progress
3.5
Devon Shulz Adam Clements
Ct. 1 Homicide - 1st Degree Premed., Cts. 2, 4 Weap. FF 2nd Off., Ct. 3 Weap. - FA Poss. by PP, Ct. 5 CCW
Guilty as Charged
5.5
2025-214718-CD Jennifer Bass v. North West Labs Inc.
Warren Astbury Saif Kasmikha
Employment Discrimination
Verdict for Plaintiff $34,970.00
3.5
O'Brien
2023-284421-FH People v. Cathey*
Lydia Mikail Jordan Zuppke
Ct. 1 Felon Poss. Firearm, Cts. 2, 4 Weap. Felony Firearm, Ct. 3 Felonious Assault
Cts. 1-3 Guilty, Ct. 4 Dismissed
0
6/29/2026
O'Brien
2023-285134-FC People v. Cathey*
Lydia Mikail Jordan Zuppke
Cts. 1-5 1st Degree CSC (Relation)
Guilty as Charged
3.5
7/13/2026
Poles
2025-294152-FC People v. Tynes
Gabrielle Tasker Ronald Mac Kool
CSC 1st Degree
Not Guilty
3
7/14/2026
Poles
2026-296554-FH People v. Wilcox
Amy Reiser Nicholas Somberg Scott Nadeau
Felonious Assault, DV 2nd Offense, Interfere w/Crime Report
Not Guilty
3
7/23/2026
Poles
2026-297215-FH People v. Lathan
Endrit Topalli Brandon Kizy
Police Officer Aslt/Res/Obst., Operating with a High BAC, Weapons - CCW U/Influence
Guilty as Charged
1.5
7/23/2026
Poles
2025-295181-FH People v. Detwiler
Endrit Topalli Patrick Gagniuk
U & P Counterfeit Bills/Notes
Guilty as Charged
1
6/23/2026
Rowe
2025-294071-FC People v. Franklin
Devon Shulz David Jones
Cts. 1, 3 Murder 1st Deg. Premed., Cts. 2, 4, 6 Weap. FF, Ct. 5 Weap. FA Poss. by PP
Guilty as Charged
0.5
7/28/2026
Rowe
2026-296279-FH People v. Buzenberg
David Hutson Neil Rockind
Assault w/ Dangerous Weapon
Dismissed - DM for Directed Verdict Granted
1.5
7/20/2026
Valentine
2026-296784-FH People v. Wilson
Andrew Starr Rebecca Roberts
CCW, Weap. - FA - Poss. by PP, Weap. FF - 2nd Offense
Not Guilty
1
7/13/2026
Warren
2025-295294-FC People v. Webb
Shellbe Sanborn Leonard Ballard
Homicide - 1st Degree Premeditated, Weap. Felony Firearm
Guilty as Charged
3
7/6/2026
Alexander Visiting Judge
2024-205917-NH Donovan Dooley v. Beaumont Hospital
Matthew Turner Lenore Zakhem J. Tamm R. Hanson A. Tony Taweel K. Houk
Medical Malpractice
No Cause
8.5
7/20/2026
Alexander Visiting Judge
2025-294118-FC People v. Stewart
Christopher George Daniel Hilf
Cts. 1-3 CSC 1st Deg. (Injury), Cts. 4, 9 Aslt w/I GBH, Ct. 5 Torture, Ct. 6 Kidnap, Cts. 7-8 CSC 1st Deg.
Guilty as Charged
4.5
7/20/2026
Young - Visiting Judge
2024-210466-CB Oakland Physicians v. Allied World Surplus Ins.
Lawrence Acker Lauren Acker A. Kolozsvary J. Duffy IV B. Olson
Business Case
Settled Mid-Trial
0.5
* Cases Tried Together
VOLUNTEER OPPORTUNITIES
GIVE BACK, GROW, AND MAKE A DIFFERENCE:
Why You Should Volunteer with PALS By Ann Erickson Gault and Sara Zivian Zwickl
M
ost of us went to law school because we wanted to do something meaningful. Somewhere between billable hours, client demands, and court deadlines, we can easily lose sight of that original purpose. By volunteering with the OCBA’s Providing Access to Legal Services Committee (PALS), we can find that purpose again and make a real, tangible difference in the lives of our neighbors in Oakland County. Most OCBA committees provide education and networking opportunities to attorneys. PALS centers on a different goal: educating the public about legal issues and providing direct legal assistance to community members who may not otherwise know where to turn. Through three signature programs — Senior Law Days, Ask a Lawyer sessions, and expungement clinics — PALS connects qualified attorneys with people who genuinely need their help. If you haven’t yet participated, here’s why you should.
THE PROGRAMS: WHERE YOUR SKILLS MEET REAL NEEDS Senior Law Days bring attorneys directly to seniors in the community to discuss the legal issues that matter most to them, such as estate planning, Medicaid and Medicare, landlord-tenant rights, consumer fraud, powers of attorney, and more. Many seniors are on fixed incomes, and others fear that legal fees will be unaffordable. Scammers also frequently target and exploit seniors. When you sit down with a senior at one of these events, you may be the first attorney they have ever spoken to about
Sara Zivian Zwickl speaks at a Senior Law Day event.
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their legal situation. Half an hour of your time could set them on the road to protecting their life savings, their home, or their dignity. Ask a Lawyer sessions offer free legal advice on a wide range of civil matters. Community members walk in with questions and leave with answers. These events draw people facing some of the most stressful moments of their lives, such as a pending eviction, a child custody concern, or a dispute with an employer. They may not need full representation at that moment; they may need someone with your knowledge to help them understand their rights and options. You provide clarity in a moment of confusion. That’s no small thing. Expungement clinics may be the most transformative PALS program. Michigan law allows many individuals with past criminal convictions to petition for expungement, clearing their records and opening doors to employment, housing, and education. But navigating that process without legal help is difficult. At PALS expungement clinics, volunteers guide eligible applicants through the paperwork, explain the process, and help them take a step that may change the trajectory of their lives. Attorneys who are not familiar with the process will receive training. If you have ever wanted to see the direct human impact of your work, spend a few hours at one of these clinics.
WHAT’S IN IT FOR YOU?
Volunteering with PALS isn’t a sacrifice; it’s an investment. Here’s what you will gain: Professional Development: Whether you are a seasoned litigator or a transaction-
al attorney who rarely sees the inside of a courtroom, PALS events expose you to a broad range of legal issues and client situations. You’ll sharpen skills you use daily and flex skills you rarely use. New attorneys in particular find these events invaluable for building practical competence and confidence in a low-pressure setting. Community and Collegiality: A cross section of the Oakland County bar, solo practitioners, large-firm associates, judges, retirees, and everyone in between staff PALS events. Volunteering puts you in a room with colleagues you may never meet otherwise. The relationships you form as a PALS volunteer can last a career. Perspective: Nothing reminds you why the law matters quite like working directly with the public. The person sitting across from you at an Ask a Lawyer event isn’t a file number or a matter code. They’re a person who may be scared, confused, and frustrated. They trust you to help them. That experience can renew your commitment to the profession on days when it feels like just a job.
MISSION STATEMENT The Providing Access to Legal Services Committee (PALS) promotes community access to legal services by way of pro bono legal advice and general education to the public. The PALS Committee also strives to provide the public with an opportunity to interact with and access the local bar and available community resources as needed.
VOLUNTEER OPPORTUNITIES
THE COMMITMENT IS MANAGEABLE
One of the most common reasons attorneys give for not volunteering is time. It’s a fair concern. All of us are busy. But PALS is designed to work with your schedule. Our monthly Zoom meetings rarely exceed one hour. We value the input of all participants in planning and evaluating our programs. Most PALS events require only a few hours on a single morning or afternoon. You can volunteer for one event per year and still make a meaningful contribution. The committee will provide any materials, talking points, or background you need in advance so you can walk in prepared and walk out confident that you have made a difference. You’re not expected to be an expert in every area of law that might come up. You bring what you know, and you connect people to additional resources when a question falls outside your wheelhouse. That’s it.
ANSWER THE CALL
The OCBA’s PALS Committee is always looking for attorneys willing to dedicate a few hours to serving the public. The need is real, our events are well organized, and the impact is immediate. If you want to get more involved with the OCBA or pro bono work in general, PALS is a great place to start. Reach out to the OCBA to join the committee or find out how to sign up for upcoming PALS events. Your community is waiting and will benefit from your participation. To learn more about volunteering with PALS or sign up for an upcoming event, contact the Oakland County Bar Association at ocba.org. Ann Erickson Gault is a solo practitioner specializing in civil appeals, as well as research and writing for other attorneys and firms. She also
serves as an Oakland County Commissioner for District 3 representing Hazel Park, Madison Heights, and part of Troy. Sara Zivian Zwickl is of counsel to the firm of Couzens, Lansky, Fealk, Ellis, Roeder, & Lazar, P.C. A University of Michigan Law School graduate, she is the chairperson of the OCBA’s Public Access to Legal Services Committee. She focuses her practice on estate planning, probate court matters, trust administration, and premarital/nonmarital agreements. She also serves as a fiduciary and mediator, helping parties find peaceful resolutions to their disputes.
BOUNDARY LINE DISPUTES 248-574-4450
www.ocba.org
25
FOUNDATION
THE FOUNDATION AND THE ASSOCIATION:
What’s the Difference, Really? By Robert Levine
I
n my last column, I shared results from the Signature Event survey, including one finding I promised to revisit: While 90% of respondents claimed to understand the distinction between the Oakland County Bar Association and the Oakland County Bar Foundation, the anecdotes and social media hashtags that followed the event suggested that the other 10% does not tell the whole story. Plenty of people who checked the “I understand the difference” box still, in casual conversation, called our Signature Event the “Association Event.” I said then that the ongoing effort to help our community appreciate the difference deserved its own column. Here it is.
THE OAKLAND COUNTY BAR FOUNDATION
The OCBF’s classification as a 501(c)(3) charity reflects the organization’s purpose: raising and directing resources toward the public good rather than serving a dues-paying membership. The foundation originated as a vehicle to support the Adams-Pratt Oakland County Law Library. In 1988, our predecessors expanded that narrow focus into a broader mission to ensure access to justice and promote an understanding of the law in our community. We took our current name in 1999. The foundation’s 1988 mission still guides us today, and it is worth stating plainly because I suspect it is the piece most often lost in translation. Our mission is the following: • Improve and facilitate the administration of justice in Oakland County and throughout Michigan; • Ensure, to the fullest extent possible, that legal services are made available to all members of the public; • Promote legal research and the study of law, as well as the diffusion of legal knowledge; • Promote the continuing legal education of lawyers and judges; and • Educate the public about their legal rights and obligations, while fostering and main-
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taining the honor and integrity of the legal profession. We pursue that mission primarily through grant-making carried out by our executive committee, board of trustees, and staff. Distributing grants to legal aid providers and community charities makes the mission tangible.
THE OAKLAND COUNTY BAR ASSOCIATION
The OCBA’s designation as a 501(c)(6) trade organization points to a different mission entirely: helping attorneys, judges, paralegals, law professors, and law students build their careers through continuing education, committees, networking events, and volunteer opportunities. Where our mission looks outward toward the public, the OCBA’s mission looks first toward its members and the profession itself. The association has grown considerably since its founding in 1934 with fewer than 50 attorneys; it now counts nearly 2,500 members. Its mission appears in member-facing programming, an annual meeting, bench and bar conferences, and networking events, as well as public-facing initiatives like a mock trial program, a youth law conference, judicial candidate forums, Senior Law Day, and a lawyer referral service.
TWO MISSIONS, SIDE BY SIDE
If you lay the two organizations next to each other, you can tell them apart by their difference in orientation. The OCBF’s mission centers on the public and access to justice; the OCBA’s mission centers on the profession and its members. That difference is baked into the tax code: a charity in our case, a trade association in theirs.
NOT A LOCAL QUIRK
This two-organization structure is not just a quirk of Oakland County. Bar leadership circles have a long-running shorthand for it: Associations are “from Mars,” while their charitable
foundations are “from Venus,” a line that the American Bar Association’s Bar Leader publication has used for years to describe this exact dynamic.1 Because donors’ deductions depend on a foundation staying true to its charitable mission, foundation boards nationwide keep conflict-of-interest policies and evaluate transactions with their parent association on arm’s-length terms. Our agreement with the OCBA exists for that reason.
WHERE THE MISSIONS MEET
None of this means the two organizations operate at a distance from each other. Our missions, governance, and day-to-day operations are distinct, but our work is not entirely separate, and that is by design. A formal agreement structures the relationship: The OCBA board appoints a portion of our board, assists us with fundraising, and provides us with administrative resources in exchange for an annual expense payment. In addition, a supermajority of our trustees must be OCBA member attorneys. The overlap is apparent, too, in public programs that both organizations support, including the mock trial program, the youth law conference, judicial candidate forums, and Senior Law Day, where our two missions genuinely converge even as our formal mission statements remain distinct.
CLOSING THE LOOP
I hope this column, read alongside last month’s survey results, makes the picture a little clearer and places it in the broader company it deserves. The OCBF funds access to justice and legal understanding in our community. The OCBA serves and strengthens the profession that makes that access possible. The combination of different missions, complementary purposes, and a cooperative relationship, echoed across bar associations nationwide, benefits both the bar and the public it serves. If you take one thing from this column, let it be this: When you post a picture from the Signature Event next year, make sure to use the #OaklandCountyBarFoundation hashtag. We are actively planning the 2027 Signature Event and can’t wait to see you there! Robert Levine is the president of the Oakland County Bar Foundation and managing director at Stout Risius Ross, LLC. His practice focuses on providing expert forensic accounting and economic damages advisory services to clients and their counsel in various disputes. Footnotes: 1. americanbar.org/groups/bar-leadership/publications/ bar_leader/2004_05/2906/mars.
OCBA PEOPLE
ASSOCIATION STAFF Executive Director Jennifer Quick (jquick@ocba.org) Deputy Director Katie Tillinger (ktillinger@ocba.org) Finance Director Susan Maczko (smaczko@ocba.org) Programs Manager Cristin Doble (cdoble@ocba.org) Court and Public Services Manager Janise Thies (jthies@ocba.org) Marketing Communications Specialist MB Cairns (mcairns@ocba.org) Marketing Associate Alexa Enders (aenders@ocba.org) Bookkeeper Mayly McRae (mmcrae@ocba.org) Laches and Foundation Administrator Lori Dec (ldec@ocba.org) Court and Public Services Administrator Melak Mardo (mmardo@ocba.org) Administrative Assistant Beatriz Rivard (brivard@ocba.org) Unless otherwise indicated, please call (248) 334-3400 for assistance.
Address Changes........................................................ Mayly McRae Billing........................................................................... Mayly McRae Board of Directors..................................................... Jennifer Quick Case Evaluator Applications.......................................... Janise Thies Committees.................................................................Katie Tillinger District Court Case Evaluation....................................... Janise Thies Event Photos.................................................................... MB Cairns Finance....................................................................... Susan Maczko Judicial Candidate Fora..............................................Beatriz Rivard Laches Magazine........................................................ Jennifer Quick Lawyer Referral Service – (248) 338-2100.................... Melak Mardo Member Illness & Death Notification..........................Katie Tillinger Membership................................................................Katie Tillinger New Lawyer Admissions..............................................Katie Tillinger News Releases.................................................................. MB Cairns Oakland County Bar Foundation.................................Katie Tillinger OCBA Inns Academy....................................................Cristin Doble OCBA Mediation Service.............................................. Janise Thies OCBA Policies........................................................... Jennifer Quick Pro Bono Mentor Match Program................................. Janise Thies Professional Development/CLE....................................Cristin Doble Room Rental Reservations........................................... Mayly McRae Speakers Bureau............................................................ Janise Thies Volunteer Opportunities................................................ Janise Thies Website..................................................................... Jennifer Quick
IN PRO PER The Dollar Law Firm announced that James W. Low, the firm’s managing attorney, was elected vice president of membership of the American Counsel Association (ACA) during the association’s annual meeting in Chicago. Founded in 1928, the ACA is a national and international organization of attorneys dedicated to promoting excellence in legal practice, the administration of justice, professional responsibility, and meaningful professional relationships. The association also supports the next generation of the profession through scholarships for deserving law students. As vice president of membership, Low will help lead the ACA’s efforts to grow and strengthen its membership, increase member engagement, and position the organization for continued success as it approaches its centennial in 2028.
NEW MEMBERS in JULY Lauren Catherine Alshab Maura Buckley Battersby Ilyssa Cimmino Griffin Levy Flora Lucgjonaj Alisa Martin Kathryn Mayer Moira Ogedegbe-Groves Aaron Charles Pattison Leanne Prich Nilda Reinosa Emily Rumick Katherine Schumacher Ruthmarie Shea www.ocba.org
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ADJOURNED
2026 Bar for the Course Golf Tournament On July 27, the 2026 Bar for the Course Golf Tournament welcomed 100 golfers to Knollwood Country Club in West Bloomfield for a day of camaraderie and friendly competition, from booming drives to clutch putts. OCBA members, judges, colleagues, clients, and friends from across the legal community enjoyed a relaxing day on the course while supporting the bar’s ongoing professional and community initiatives. Registration included 18 holes of golf with a cart, lunch, dinner, beverages, and a variety of on-course contests and activities. Congratulations to the winning team from BSP Law and the course contest winners. Thank you to our sponsors, volunteers, and players for making this year’s tournament a success.
Bill McDonald is all smiles after receiving two handheld fans from sponsor Cristal Carranza of JAMS.
The winning foursome from left to right: Brian King, Bradley Sargent, Bill McDonald, and Bishop Bartoni.
The golfers head out to their assigned starting holes.
From left to right: Joshua Boctor, Alexander Fuller-Wisner, Katherine Dvorak, and Francesca Salamida.
From left to right: Marc Swanson, Eric Fishman, and Matt Allen.
From left to right: Stephanie Kapoor, John Makuch, Brian Bigham, and Dave Kapoor.
From left to right: John Littleton, Wanda McRipley, and Gil McRipley.
Kevin Nelson tees off while his teammates look on.
Judge Jacob Cunningham lines up his drive.
Jamie Martone, Jonathan Martone, and Jerome Crawford cheer on Ryan Plecha as he takes a swing.
28 LACHES MAGAZINE
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Number 692 | October 2026
LACHES
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