Michigan Consumer Protection Act (MCPA); MCPA exemption; MCL 445.904(1)(a); Specifically authorized transaction or conduct; Smith v Globe Life Ins Co; Liss v Lewiston-Richards, Inc; Attorney Gen v Diamond Mtg Co; Regulated industries; Insulin-pricing practices; False or misleading price-reduction statements; MCL 445.903(1)(i); Grossly excessive pricing; MCL 445.903(1)(z); Civil investigative subpoenas; MCL 445.907(1); Declaratory relief; Actual controversy; MCR 2.605; Stare decisis; Robinson v Detroit

The court held that the plaintiff-AG’s declaratory-relief action presented a justiciable controversy and that the MCPA exemption in MCL 445.904(1)(a) applies only when the specific transaction or conduct at issue is authorized by law. The AG obtained authorization to issue civil investigative subpoenas while investigating defendant-Eli Lilly’s insulin-pricing practices for potential MCPA violations. But the circuit court granted Eli Lilly summary disposition of the AG’s request for declaratory relief related to MCL 445.904(1)(a) under Smith and Liss, and the Court of Appeals affirmed. On appeal, the court first held the AG was not required to plead a substantive MCPA violation before seeking declaratory relief as to the exemption. It reasoned that the circuit court had already found probable cause and authorized subpoenas, the parties disputed whether the exemption barred the investigation, and declaratory relief was necessary to guide “whether to serve the subpoenas” or challenge them. The court next held that Smith and Liss were wrongly decided because they converted MCL 445.904(1)(a) into a broad regulated-industries exemption. It reasoned that those cases improperly inserted the word “general” before “transaction” and “wrote the phrase ‘specifically authorized’ out of the statutory language.” Returning to Diamond, the court held that the proper inquiry is whether the “specific transaction or conduct at issue,” not the general business activity, is specifically authorized by law. The court also held that stare decisis did not justify retaining Smith and Liss. It found they made much of the MCPA unworkable by exempting broad categories of regulated businesses, disrupted reliance on the statute’s plain language, prejudiced the public interest in consumer protection, and departed sharply from Diamond without a stare decisis analysis. The court overruled Smith and Liss, reversed the Court of Appeals, vacated the circuit court’s order, and remanded for the circuit court to determine whether the particular transaction or conduct alleged is specifically authorized by law.

Justice Bolden dissented, joined by Justices Zahra and Bernstein. She would have held that the AG lacked standing because the AG had not pled an MCPA violation and therefore had not established an actual controversy. She reasoned that the AG sought to change settled law rather than obtain a declaration needed to guide the parties’ rights, and she viewed the majority as expanding standing by relying on hypothetical procedural paths that might have created a justiciable controversy.