Litigation Trends Analysis

Nessel Asks Michigan Supreme Court to Reconsider MCPA Interpretation and Put Consumers Before Businesses

Michigan’s Attorney General, Dana Nessel, has submitted an amicus brief to the Michigan Supreme Court in support of Ford Focus and Fiesta owners suing Ford Motor Company for selling vehicles with defective transmissions.  Ms. Nessel’s brief asks the Court to reconsider its expansive view of an exemption in Section 4(1)(a) of the Michigan Consumer Protection Act (MCPA).  According to the Attorney General, the Court should step in to correct “a longstanding misinterpretation of consumer-protection law.”  To do so, the Court would need to overrule two prior cases: Smith v Globe Life Insurance Company, 460 Mich 466 (1999) and Liss v Lewiston-Richards, Inc., 478 Mich 203 (2007).

Under Smith and Liss, the MCPA exemption at issue applies whenever “the general transaction at issue is specifically authorized by law, regardless of whether the specific misconduct alleged is prohibited.”  In effect, this means that defendants in any regulated industry – like the auto industry – are exempt from the MCPA and customers do not have a MCPA remedy for their claims.  This interpretation, in the Attorney General’s view, leaves consumers in wide swaths of the economy unable to seek MCPA relief.  According to Ms. Nessel, the Court should stop shielding regulated entities and change course to “give teeth to the MCPA once again” in order to better protect consumers. 

The case is Cyr, et al v Ford Motor Co. (MSC No. 160927), and Plaintiffs lost in the Court of Appeals, which unanimously ruled that consumers are protected under other existing statutes or regulations.  The Michigan Supreme Court decided not to take the case, and Ms. Nessel’s brief supports Plaintiffs in asking the Court to reconsider that decision.