I’m not going to sugar coat it – it is a gray day in downtown Grand Rapids.
I had lunch with a friend today, who told me – he can’t stand it when in response to the question “how are you doing” someone gives a pat answer – “good”.
I agree.
I appreciate authenticity.
And today, is gray, and somewhat depressing and I am a little down.
Yesterday, I attended the funeral of a friend and fellow attorney who died suddenly. I am grieving and in prayer for Adam’s family, including his wife, two small children and his brother and parents.
Ok, enough authenticity, and on to the subject matter of this post…
I previously wrote about an interesting article published by the ABAJournal.
The article presents interesting questions that come up in business transactions:
when faced with entering a business relationship should you enter into a non-disclosure agreement? (NDA)
What about if the NDA contains a Non-Disparagement Clause?
What is Disparagement?
Michigan courts have held that “disparagement” is plain in its meaning. It is not ambiguous. Therefore, when signing a non-disparagement clause you can have some reasonable certainty in your conduct.
Disparage – as you will see below – has a fairly common meaning
.
‘Disparagement’ is ‘a false and injurious statement that discredits or detracts from the reputation of another’s property, product, or business.’ Black’s Law Dictionary (7th ed. 1999).
stated another way:
(1) To speak of in a slighting or disrespectful way; belittle.
(2) To reduce esteem or rank.’ . . . American Heritage Dictionary (4th Ed. 2000)
Non-Disparagement Clauses in Contracts with Consumers
Recently the Federal government passed a law holding that such non-disparagement provisions in contracts are unenforceable under Federal law
California has had such a law in place since 2016.
It is one thing if two sophisticated business parties are negotiating a business relationship, but should consumers have specific protections concerning Non-Disparagement Clauses?
At least one Michigan lawmaker thinks so.
Michigan House Bill 5193
On October 31, 2017, HB 5193 was introduced to amend the Michigan Consumer Protection Act (“MCPA”).
“The MCPA provides protection to Michigan’s consumers by prohibiting various methods, acts, and practices in trade or commerce.” Slobin v. Henry Ford Health Care, 469 Mich. 211, 215; 666 NW2d 632 (2003).
The Amendment would prohibit anyone engaged in Trade or Commerce from including in a contract with a consumer for the sale of lease or sale of consumer goods:
“A PROVISION THAT WAIVES THE CONSUMER’S RIGHT TO MAKE A STATEMENT CONCERNING ANY OF THE
FOLLOWING:
(i) THE SELLER OR LESSOR.
(ii) EMPLOYEES OR AGENTS OF THE SELLER OR LESSOR.
(iii) THE CONSUMER GOODS OR SERVICES.
(B) THREATEN OR SEEK ENFORCEMENT OF A CONTRACT PROVISION PROHIBITED UNDER SUBDIVISION (A).
(C) PENALIZE A CONSUMER FOR MAKING ANY STATEMENT PROTECTED UNDER SUBDIVISION (A).
Of note, under this Bill businesses would still be permitted to include provisions that protect its proprietary information.
I understand the intent of this provision. However, it hasn’t made any progress in committee. I will keep you posted on any development.
Questions? Comments?
e-mail: Jeshua@dwlawpc.com
Twitter: @JeshuaTLauka
Purpose Driven General Counsel 