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AG Wants MSC To Reconsider Its ‘Erroneous Interpretation’ Of Consumer Protection Act

February 16, 2021

The Attorney General’s office asked the Michigan Supreme Court (MSC) to revisit its “erroneous interpretation” of an exemption in the Michigan Consumer Protection Act (MCPA) that allows for a “free pass for misconduct.” 

Attorney General Dana Nessel said the court’s current interpretation means “wide swaths” of the economy are exempt from liability under the MCPA, opening consumers to significant risk. Nessel’s request comes in an amicus brief filed in Jordan Cyr et al. v. Ford Motor Company lawsuit, which originated in Wayne County and accuses Ford of violating the MCPA based on alleged defective transmissions in some Ford vehicles. 
The 118 plaintiffs, who opted out of a now-settled class-action lawsuit and sued Ford on their own, won at the trial level when Wayne County Circuit Judge Annette Berry held the MCPA gave them standing to sue, but they sought an appeal with the MSC (Case No. 160927) after the Michigan Court of Appeals held that Ford was exempt from the MCPA. The MSC declined to hear the case, but the plaintiffs filed a motion seeking reconsideration. 
In the AG’s brief supporting the plaintiffs’ request, Nessel quotes former AG Frank J. Kelley who said: “If every person or business which engages in an activity authorized by some statute or regulation were exempt from the Michigan Consumer Protection Act . . . then the (MCPA) would be a cruel hoax on the many legislators and others who sought to give Michigan consumers protection in the marketplace.” 
The AG’s office wants the state’s highest court to revisit two past decisions – Smith v. Globe Life Insurance and Liss v. Lewiston-Richards Inc. – which the AG argues weakens the MCPA. 
Both rulings interpret an exemption contained in the MCPA as applying whenever the general transaction is specifically authorized by law, which means members of any industry that is “generally regulated” are deemed “specifically exempt” from MCPA. 
This, Nessel argues, provides a “free pass for misconduct under the MCPA, regardless of how egregious. 
“For too long, the Supreme Court’s erroneous interpretation has gutted this critical law and weakened this office’s ability to help consumers,” Nessel said. “It is time to breathe life back into the Michigan Consumer Protection Act and revive the law’s original purpose, protecting Michigan’s residents from unscrupulous businesses.” 
Also urging the MSC to hear the appeal are prosecutors from Washtenaw, Alger, Chippewa, Genesee, Ingham and Marquette counties, as well as the Michigan Association for Justice. 

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