The court heard argument in Case No. 165961, Attorney General Dana Nessel v. Eli Lilly and Company, over whether a statutory exemption in the Michigan Consumer Protection Act (MCPA) bars the attorney general from investigating insulin pricing and related conduct.

Assistant Attorney General Darren Fowler, presenting for Attorney General Dana Nessel, told the court the MCPA "was broadly written to protect consumers" and that the courts prior rulings in Smith and Lehi "rewrote the act's primary exemption to sweep out of its protective coverage purchases for groceries, automobiles, home improvements, prescription medications," transforming "a seldom used side road" into "an expressway" for exploitation. Fowler said the attorney general met the prerequisites for declaratory relief and that the investigative petition and subpoenas were supported by a factual showing of probable cause to investigate allegedly "grossly in excess" insulin prices.

Paul Novak, for the Michigan Association for Justice, pointed the court to evidentiary exhibits appended to the AGs filings, including an FDA approval letter for the insulin product Humalog and a California attorney general complaint. Novak said the FDA letter authorizes labeling and marketing uses but does not authorize conduct such as price increases, and he told the court that the California complaint alleges manufacturers raised retail insulin prices more than 600 percent while making large rebate payments that coincided with price hikes.

Counsel for Eli Lilly, John O'Quinn, urged the court to reject a request to revisit the line of cases that read the MCPA exemption to include transactions "specifically authorized" by law. O'Quinn said courts and the legislature have repeatedly reenacted the statutes language and that "this is an improper test case" for deciding the exemption because the attorney general has not established a legally viable underlying violation and because declaratory relief here would depend on future contingencies. He argued that longstanding precedent including decisions the parties cited such as Diamond Mortgage and Keckle supports the view adopted in Smith.

Justices pressed both sides on the procedural posture. The court asked whether the circuit courts finding of probable cause for subpoenas could have been appealed, and whether Eli Lilly had chosen to file a motion to stay rather than a motion to quash in the trial court. Counsel acknowledged alternate procedural options and debated whether the attorney generals petition and the ensuing filings created an "actual controversy" appropriate for a declaratory-judgment determination now rather than in later, case-specific litigation.

The arguments turned on two related questions: whether the statute's exemption should be read to bar claims touching transactions that are "specifically authorized under laws administered by a regulatory board or officer," and whether the attorney general may pursue an investigative petition and declaratory relief before a coercive suit is filed. Counsel debated whether inserting the modifier "general" into the exemption (as the AG said Smith and Lehi did) effectively nullifies the statutes protections by creating broad immunity for regulated industries.

Counsel on both sides cited prior decisions and legislative history. Fowler cited Michigan Home Builders and Dime Brands to support the argument that a declaratory action does not require a pending private claim; O'Quinn pointed to reenactments and the fact that the legislature amended the Consumer Protection Act multiple times without changing the exemption in the way the attorney general seeks.

The court also asked factual and statutory clarifying questions, including whether the AG's petition targeted retail consumer pricing or sales to commercial buyers, and how to treat agency authorizations such as labeling and packaging that do not address price. Counsel disagreed on whether criminal or regulatory liability under other laws would be unaffected by an MCPA exemption but agreed that the MCPAs exemption would only bar MCPA claims and not other forms of legal liability.

At the close of argument the bench thanked counsel and the case was submitted for decision. The court did not announce a ruling at the hearing.