Featured Attorney Phil Seltzer

A principal with Lipson Neilson P.C., Phillip Seltzer offers clients advice and counsel drawn from more than two decades of experience in the areas of commercial litigation and the defense of professional liability claims. RAJ_016_e_sm

Licensed to practice law in Michigan and Nevada, Mr. Seltzer is a specialist in the areas of legal malpractice, architect and design professional malpractice, accounting malpractice, real estate broker errors and omissions, directors’ and officers’ liability claims and insurance coverage disputes.

Phillip Seltzer is a member of the Litigation Practice and Torts Insurance Practice Sections of the American Bar Association, the Oakland County Bar Association, the Litigation, Business Law, Corporation and Negligence Sections of the State Bar of Michigan; the Defense Research Institute; the Michigan Defense Trial Council (MDTC); and the Professional Liability Underwriting Society (PLUS). Mr. Seltzer has also been appointed by the State Bar of Michigan to the State Bar Character and Fitness Committee for a two year term beginning in 2011. He has been named as a Top Lawyer for Legal Malpractice by DBusiness Magazine for multiple years starting in 2012 and as a “SuperLawyer” for Professional Liability Defense over the last five years.

HONORS

Mr. Seltzer earned a B.A. from Michigan State University and J.D. from Wayne State Law School where he was Senior Associate Editor of the Wayne Law Review. He has authored and published articles for a range of legal and insurance publications including, ABA Magazine, The Brief, Michigan Bar Journal, Michigan Defense Quarterly, Michigan Lawyers Weekly, Federal Lawyer, The Insurance Advocate, The Professional Liability Underwriting Society Magazine, Detroit Legal News andOakland County Legal News.

Summary Dismissal Victory Achieved by Karen A. Smyth and C. Thomas Ludden in Defense of FDCPA Putative Class Action

Defendant’s Rooker-Feldman motion of a putative FDCPA class action was recently granted in favor of the Defendant-Debt Collection Law firm represented by Lipson Neilson. The Rooker-Feldman doctrine limits the jurisdiction of federal courts by restricting their power to adjudicate appeals from or collateral attacks on state-court judgments and final orders.

The Plaintiff sought to challenge state court orders by filing a FDCPA putative class action in federal court. Plaintiff alleged the amount of post-judgment interest owed and communicated to them by Defendants “exceeded the amount permitted by law.”

The Court agreed with the Defendant law firm that the pleading although artfully worded was appealing the writ of garnishment, the source of his alleged injury. The injuries arose from the execution of the writs, not the purported “false” statement in the writs, as Plaintiff never challenged the writs. The Court also found that the Rooker-Feldman doctrine made intuitive sense. Again, the Court agreed with the Defendant law firm that the Michigan Court Rules afforded the debtor/ Plaintiff the opportunity to challenge the writ as “otherwise invalid.” Mich. R. Ct. 3.101(K)(2)(f). Had the Plaintiff objected to the alleged improper interest being requested in the writ, the state district court is required to schedule a hearing. Mich. R. Ct. 3.101(K)(3). Thus, where parties, such as Plaintiff, are afforded an opportunity to challenge the amount of money that will be garnished, they should do so. “Parties should not sit on their hands, have the money garnished, and then sue in a different forum to recover the difference between the amount of interest collected and the amount owed, and also recover statutory damages, costs and fees for their attorneys.” Finding that it would either have to conclude the writs were invalid or otherwise erroneously issue, the Court applied Rooker-Feldman and dismissed the FDCPA lawsuit.

Sandra D. Glazier Presenting “Considerations and Ethical Responsibilities When Representing Vulnerable Adults” at Michigan State Bar Association’s Family Law Section Summer Conference

Sandra Glazier 2017 webpage photoSandra D. Glazier will present “Considerations and Ethical Responsibilities When Representing Vulnerable Adults” at the State Bar of Michigan Family Law Section’s Summer Conference on July 21, 2018 at the Boyne Mountain Resort in Boyne Falls, Michigan.

Family law is a very specialized area of law that is often state specific. In addition to staying current on the laws and how they are interpreted, family law attorneys must know their way around a courtroom, a referee’s office, the court rules, and case law. This conference will feature presentations by recognized family law practitioners providing state-of-the-law education and tips on family law issues.

An attorney for more than 35 years, Ms. Glazier is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law matters. The cases she works on tend to be very complex and require technical as well as legal expertise. An AV Preeminent® rated attorney, she has also been recognized by “Super Lawyers” in probate litigation and a “Top Lawyer” by DBusiness, in the areas of probate, estate and family law.

Ms. Glazier has had numerous articles nationally published by some of the legal industry’s leading publications. In addition, she has presented on estate planning and probate litigation related topics for the American Bar Association, Notre Dame Tax and Estate Planning Institute, Kansas City Estate Planning Symposium, Michigan’s Institute of Continuing Education, Oakland County Bar Association, Wayne County Probate Court appointed attorney training, Wilmington Trust’s New York Trust Symposium, Trust & Estates Magazine, and the Bloomberg BNA Estate and Gift Tax Advisory Board. She has presented on Family Law related topics for NBI, the OCBA, ICLE and the Michigan State Bar – Family Law Section.

Contact: Sandra D. Glazier
Phone: 248-593-5000
Email: sglazier@lipsonneilson.com

Jeffrey T. Neilson Honored for Service on Michigan’s Attorney Grievance Commission

Jeffrey NeilsonThe firm is pleased to announce that Jeffrey T. Neilson has been honored by the members of the State of Michigan Attorney Grievance Commission for his service as Secretary of the Commission from October 2011 to October 2017.

In honoring Mr. Neilson for his service, the Commission made specific mention of his exceptional, and meritorious service in preserving the highest standards of professional conduct for the protection of the public, the courts, and the legal profession.

One of the founders of the Lipson Neilson law firm, Mr. Neilson is known nationally for his expertise in business counseling, estate planning and domestic and family law liability. He has more than thirty years of experience in matters relating to probate administration and estate/retirement planning, corporate and business representation and succession planning, election law, accounting and legal malpractice, non-profit organizations, taxation issues including tax controversies, family law, and probate litigation. Mr. Neilson is licensed to practice law in Michigan, Nevada, and Colorado.

Founded in 1985, the Lipson Neilson law firm has grown from three founding members to thirty-three attorneys located in three states. Since its formation, the firm has also expanded its practice areas from business, tax and litigation to a full range of practice areas.

Lipson Neilson attorneys represent and provide counsel to clients throughout the country and around the world. To learn more about the firm please visit www.lipsonneilson.com.

David A. Clark Chosen to Chair Lawyer Well-Being Committee for the Association of Professional Responsibility Lawyers (APRL)

David ClarkDavid A. Clark, a Partner in the firm’s Las Vegas office, has been chosen by the APRL to Chair the newly formed Lawyer Well-Being Committee. This committee will act as a liaison with the American Bar Association (ABA), the National Organization of Bar Counsel (NOBC), and state-led efforts to implement the goals of the ABA’s National Task Force on Lawyer Well-Being. The committee is planning its first CLE at APRL’s Annual Meeting in Chicago in August.

Various reports indicate that 40-70 percent of discipline and malpractice claims against lawyers involve depression or substance abuse. As APRL’s follow-on commitment to act on the call of the National Task Force on Lawyer Well-Being for stakeholders in the legal profession to join in creating a better future for our lawyers, this committee will work with stakeholders and jurisdictions across the country to coordinate and implement state-level actions to improve the effectiveness, ethical integrity, and simple human experience of being a lawyer.

Judges, regulators, employers, bar associations, assistance programs, liability carriers, and law students are coming together in the goal that, “to be a good lawyer, one has to be a healthy lawyer.” APRL’s mission includes initiating positive changes in laws and regulations regarding professional responsibility and the development and implementation of sound ethical standards within the legal profession. All of that begins with a healthy, thriving, and connected lawyer.

David A. Clark’s experience includes 15 years as a prosecutor for the Office of Bar Counsel, including five years as chief discipline counsel for the State Bar. He has extensive experience in attorney regulation for professional liability, attorney discipline and commercial litigation.

He established the training program for the Southern and Northern Disciplinary Boards, obtained numerous changes to the Nevada Rules of Professional Conduct and the Supreme Court’s rules for attorney discipline, and he drafted the Disciplinary Rules of Procedure that were adopted in July 2014 by a task force and the Board of Governors.

Lipson Neilson Enjoys Hard Fought Victory: Federal Court Dismisses Multi-Million Dollar Trade Secret Claim Against Altair Engineering, Inc. and Key Employee

The Lipson Neilson team of Phillip E. Seltzer, C. Thomas Ludden and Samantha K. Heraud celebrated a long-sought victory in a case originally filed against their clients in 2007. After a 2014 adverse trial verdict was vacated by the trial judge, a new trial was ordered.

However, on December 13, 2017, Judge Avern Cohn granted a summary judgment motion to Defendants, Altair Engineering Inc. and a key software director, dismissing the claims brought by MSC.Software (“MSC”) for trade secret misappropriation. In his final decision, Judge Cohn found, “MSC has no admissible evidence to support its claim for damages,” and noted, “MSC concedes that its multimillion dollar damage claim is unsupported in light of the exclusion of [MSC’s expert’s] testimony and it does not challenge Altair’s reasoning.” The Judge’s decision finished with a reference to the famous T.S. Eliot poem The Hollow Men: “This is the way the world ends; Not with a bang but a whimper.”

MSC initiated the case in 2007 when it sued Altair and a number of former employees of MSC. MSC asserted sixty-three claims of misappropriation of trade secrets by Altair and its employees, along with a breach of confidentiality and non-solicitation agreements by the key employees.

With a team of lawyers at Lipson Neilson leading the charge, the Court summarily dismissed 58 trade secret misappropriation claims out of the original 63 alleged in pre-trial proceedings. In April 2014, after a two-month trial, a jury determined that three out of the remaining five trade secrets were misappropriated. The Jury awarded MSC $26.5 million in damages out of the 62 Million plus damages sought at trial.

However, on a motion to vacate that judgment brought by Lipson Neilson (working with the Boston law firm of Fish & Richardson), Judge Cohn vacated the jury award for the trade secret violations (over 26 Million) in November 2014. The opinion noted, among other things, the misconduct of MSC’s trial counsel in abusing his right to rebuttal closing argument by raising a damage theory previously barred by a prior pre-trial ruling. Finding that the argument impermissibly skewed the damage horizon in the case, the Judge ordered a new trial regarding damages for the three trade secrets the jury determined were misappropriated. However, after further discovery and expert testimony, the Judge’s ruling of December 13, 2017, resulted in summarily dismissing MSC’s trade secret claims in their entirety against Altair and its key employee.

The law firm of Fish & Richardson, Boston, MA, represented Altair during the post-judgment/new trial phase, with Lipson Neilson representing the key employees.

Joseph Garin Co-Presents “Changes in Professional Liability Rules” at the Nevada State Bar’s 2017 Ethics Year in Review Program

Joseph Garin, Managing Partner of the Las Vegas office of Lipson Neilson P.C., co-presented, along with attorney Alan Freer, “Changes in Professional Liability Rules”, during the Standing Committee on Ethics and Professional Responsibility of the State Bar of Nevada’s 2017 Ethics Year in Review program, held on November 7, 2017, at the Northern Nevada Bar Center in Reno.

This event focused on some of the most important issues facing lawyers in the practice of law today. The program featured interactive discussions covering issues that are all too familiar and those that are not as readily apparent.

Joseph Garin is consulted nationally on the defense of professional liability claims, ethics, employment, insurance coverage disputes, director and officer claims, and risk management. Mr. Garin is former Chair and current member of the Standing Committee on Ethics and Professional Responsibility to the Nevada State Bar; and he is a member of the Professional Liability Advisory Board for the national Claims & Litigation Management Alliance. Comprised of industry leaders from across the United States, this Board guides the development of extensive professional liability resources.

Founded in 1985, Lipson Neilson P.C. has offices in Nevada, Arizona and Michigan. The firm is widely known for its excellence in professional liability law, offering invaluable insight and experience to its clients across all industries. The firm represents clients in Nevada, across the USA, and around the world.

Contact: Joseph Garin
Phone: 702-382-1500
Email: JGarin@lipsonneilson.com

Attorneys Phillip E. Seltzer and Shawn Grinnen Successfully Obtain Substantially More Than the Appraised Fair-Market Value for Their Client’s LLC’s Membership Interest in an Oppression/Conversion Lawsuit

Phil and Shawn PhotoIn a LLC membership dispute case concerning breach of fiduciary duties, membership oppression, conversion, and aiding and abetting conversion of their client’s membership interest, Attorneys Phillip E. Seltzer and Shawn Grinnen successfully obtained, via settlement, substantially more than the appraised fair-market value of their client’s membership interest in the LLC.

As part of the settlement, the client received $515,000:

  • $320,000 representing the appraised fair-market value of the client’s membership interest.
  • Plus an additional $195,000 representing a compromise on the remaining damage claims against the controlling LLC member and certain other individuals who allegedly aided and abetted the wrongful conduct of the controlling members.

Based on the evidence developed in discovery, the Lipson, Neilson team argued that the Client’s LCC membership interest had essentially been converted. The nature, character and misconduct of the controlling members tortious conduct had essentially denied all meaningful rights in the LCC by the Client – rights that are specifically deemed “personal property” under the LCC Act. Under Michigan law, only personal property (as opposed to intangible business interests) can be the subject of a conversion claim.

By creatively arguing that their client’s LLC membership interest had been wrongfully converted, attorneys Seltzer and Grinnen convincingly demonstrated that the controlling members and those that allegedly aided and abetted it had a strong likelihood of being found liable for not only paying the $320,000 value for the membership interest, but also the potential for treble damages under Michigan’s conversion statute – a statute that also allows for recoupment of attorney fees “in addition to any other right or remedy the person may have at law or otherwise.”

With Summary Disposition motions pending and fearing the Court was about to find the controlling members and the other individual defendants liable for $320,000 in damages plus potential trebling and attorney fees, the defendants agreed to settle for $515,000 in exchange for a final dismissal of the case. The creative use of the conversion statute immeasurably made the case stronger for the client, who was overwhelmingly satisfied for obtaining a resolution that was well in excess of the appraised fair-market value of his membership interest in the LLC Company.

Phillip E. Seltzer: pseltzer@lipsonneilson.com

Shawn Grinnen: sgrinnen@lipsonneilson.com

Summary Dismissal Victory by C. Thomas Ludden and Samantha Heraud

Samantha Kaplan Heraud

Samantha Heraud

C. Thomas Ludden

C. Thomas Ludden

As their initial response to the Complaint, Lipson Neilson challenged whether a defendant had been served with the summons and complaint before the summons expired. After reviewing the parties’ briefs, the Wayne Circuit Court held an evidentiary hearing regarding whether the process server had delivered the summons and complaint to the defendant. Upon completion of the evidentiary hearing, the Wayne Circuit Court granted the motion and dismissed all claims against the defendant.

Victory Upheld in Defense of Lawyer for Phillip E. Seltzer, C. Thomas Ludden and Samantha Heraud

By order dated April 4, 2017, the Michigan Supreme Court recently ruled to let stand a prior victory achieved in the Michigan Court of Appeals in the matter of Boladian et al v. Thennisch, et al, Unpublished Mich. Ct. of App., issued April 12, 2016 (Docket #No. 324737). In Boladian¸ a lawyer was sued for, among other things, malicious prosecution, abuse of process and defamation, arising from the failed prosecution of civil matters against a music publishing company and its owner. The Lispon Neilson legal team of Phillip E. Seltzer, C. Thomas Ludden, and Samantha Heraud, obtained summary dismissal of the referenced claims in the trial court and defended that result on ensuing appeals.

The Boladian Court of Appeals panel affirmed the trial court’s rulings. Boladian is the first Michigan case to reject a multiplicity of legal proceedings as constituting a “special injury” — a necessary requirement to prove a malicious prosecution claim. Noting Michigan’s “special injury” requirement, the Court of Appeals refused to expand the notion of “special injury” beyond the English common law rule – previously adopted in Michigan — which does not include defending multiple legal proceedings (or, in this case, multiple post judgment motions that sought relief from various settlements in different civil lawsuits involving plaintiffs).

Furthermore, the Court of Appeals affirmed summary dismissal of the abuse of process claim against the attorney, determining that an alleged settlement demand for $1 million in exchange for a promise of not filing a damaging and supposedly defamatory affidavit, failed to demonstrate the required ulterior or collateral purpose necessary to sustain the tort. Demanding settlement is not collateral to maintaining a lawsuit, especially one that seeks monetary damages. Further, no showing was made that the demand was beyond the realm of potential damages in the underlying case.

The Boladian Court also rejected the argument that there was an “ulterior motive” based on the desire of the lawyers to “drum up business” by leaking an alleged defamatory story about Plaintiffs’ business practices to the media, finding that this was either a part of a time barred defamation claim that had previously been dismissed and, further, because supplying information to the media is “action outside legal proceedings” and not applicable to an abuse of process claim.

To learn more about this case, please contact Phillip E. Seltzer at 248-593-5000.