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6th Circuit Appellate Blog


Sixth Circuit Breaks New Ground In Cost-Shifting

Posted in Recent Cases

Circuit courts do not frequently address issues of costs at the district court level. However, in Freeman v. Blue Ridge Paper Products, Inc., a divided panel of the Sixth Circuit became the first circuit authority in the country to find that renting a conference room to conduct depositions qualifies as a taxable cost.  The case involved the cost of a hotel conference room that saved the witnesses 50 miles of travel each way to counsel’s office.  The Court reasoned that, because the cost of renting the conference room replaced the witness’s otherwise taxable travel costs, it too was taxable to the extent it mitigated those costs.

In a short dissent, Judge Sutton disagreed on this point, maintaining that conference room rentals are not enumerated in Congress’s statutory regime and noting the expansive potential of the Court’s rationale.  Giving a couple colorful examples, Judge Sutton suggested that the Court’s rationale also applies to the purchase of Rosetta Stone software so as to save on interpreter fees and the cost of buying the latest gadget that could potentially reduce copying and transcript expenses.

The Court did not publish its decision, so the full impact of it remains to be seen.  But it may certainly encourage parties to become creative with their costs arguments at the district court level.

Consensual Debt Collection Calls in the Sixth Circuit

Posted in Recent Cases

The Telephone Consumer Protection Act (TCPA), which, as we’ve reported, has been litigated a fair amount in the Sixth Circuit in recent years, was under scrutiny again last week in Hill v. Homeward Residential, Inc.

As the court outlined, the case primarily concerned what “prior express consent” means in the context of the TCPA and whether a debtor’s provision of his cellular telephone number to his creditor can prevent the debtor from recovering under the TCPA for unwanted calls related to his debt. Over the course of a decade, Stephen Hill provided his cellphone number to Homeward’s predecessor in interest and eventually to Homeward in connection to the mortgage he owed Homeward. After falling behind on the mortgage, Hill allegedly received 482 calls from Homeward about the debt from 2009 to 2013.

Hill sued Homeward for these calls under the TCPA, which prohibits the use of auto-dialers without prior express consent, and provides a hefty minimum penalty of $500 per violation. Relying on the FCC’s rules promulgated under the TCPA, the district court instructed the jury that “autodialed . . . calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt” do not violate the Act as they are made with the “prior express consent” of the debtor. The jury returned a verdict for Homeward, and a unanimous Sixth Circuit affirmed. Hill attempted to argue that only a number provided when the debt was incurred could constitute express consent, but the court pointed out that no such language exists in the TCPA. Further, the court reasoned that the FCC’s rules in this regard clarify that a creditor may call a number provided by the debtor only in connection with the debt (not other topics), but that the provision of the number at any time constitutes consent to live and automated calls regarding the debt.

Judge Clay wrote separately to emphasize that the decision did not outright affirm the FCC’s rules on this issue, nor did it foreclose a later challenge to what he proposed is a dubious interpretation of the TCPA by the FCC.

Sixth Circuit Assesses Class Action Criteria in Digestive Drug Litigation

Posted in News and Analysis

The importance of class definition was on display last week at the Sixth Circuit, in a case producing three separate opinions. In Rikos v. The Procter & Gamble Company, a divided court affirmed the certification of classes covering five states and nearly half a decade of purchasers P&G’s digestive health drug Align, and in the process added to the (somewhat confusing) map of the post-Dukes and Comcast class action landscape.

Early last year, the plaintiffs sought—and the district court certified—five single-state classes led by three plaintiffs who purported to represent the purchasers of P&G’s digestive bacterial fortification drug Align. The plaintiffs alleged violations of various state laws on unfair competition and deceptive trade practices on the basis that the drug did not comport with P&G’s marketing claims about its efficacy. On appeal, P&G’s primary challenges to class certification included arguments regarding the commonality and typicality requirements of 23(a), the predominance requirement of 23(b)(3), and the developing doctrine of ascertainability.

The court rejected P&G’s claim that “[Wal-Mart v.] Dukes requires that named plaintiffs present evidence proving that class members suffered an actual common injury to establish commonality,” holding rather that the issue was “whether Plaintiffs have shown . . . that they can prove—not that have already shown—that all members of the class have suffered the ‘same injury.’” Finding the plaintiffs’ claim that Align simply did not work for anyone was a common question with a common answer and was adequate in light of Dukes, the court turned to typicality. On this point, the court concluded that some consumers’ satisfaction with Align was irrelevant to class certification. The court held that the typicality requirement was satisfied by the district court’s conclusion that the appropriate inquiry was “’whether the purchaser received the product that was advertised.’”

In its analysis, the Sixth Circuit declined to follow Carrera v. Bayer, the recent Third Circuit case overturning class certification due to the class’s “unascertainable” nature, citing criticism of the case by other circuits, the Third Circuit’s own subsequent limitation of the case, and the ready ascertainability of the Rikos classes. It also distinguished Carrera on its facts.

Judge Cohn penned a short concurrence, encouraging bifurcation of the case in order to assess Align’s health benefits on the merits as soon as possible and so dispose of the case. However, Judge Cook dissented from certification overall, arguing that the plaintiffs had merely pleaded, not proven, Rule 23’s requirements, in contravention of Comcast, Amgen, and Dukes. This is a key issue that has engendered much confusion in the caselaw in the wake of these Supreme Court decisions. Finally, the dissent found that the district court impermissibly shifted Rule 23’s burden to P&G to disprove commonality, and that an examination of the drug’s efficacy was a necessary intrusion into the merits of the case in line with the Supreme Court’s “rigorous analysis” jurisprudence.

Stunning Result: Sixth Circuit Finds No Duty to Warn for Taser

Posted in Uncategorized

In a divided 2-1 decision, the Sixth Circuit affirmed summary judgment for Taser related to failure to warn claims arising out of the death of an individual who had been tased.  Mitchell v. City of Warren.  Before reaching the merits, the majority opinion, written by Judge Sutton, provides an overview and history of Taser products.  Relevant to the case at hand, the majority discussed certain literature related to the potential risk of cardiac episodes as a result of being tased in the chest.  The Court, however, emphasized that generic knowledge of risk isn’t sufficient:  “The plaintiff must show that a manufacturer knew or should have known its product posed the particular risk at issue in case.”  On this point, the Court found plaintiff’s claims inadequate because it did not establish anything more than a possibility that the particular harm would occur:  “We have refused to rely on studies establishing that the product can possibly cause an injury to prove that a product probably caused the injury.”  Accordingly, after the surveying the evidence, the Court affirmed the failure to warn claim.

The plaintiff also argued that Taser had a post-sale duty to warn, but the majority rejected this claim as well:  “If Taser had no such duty to warn based on the pre-sale information available, it could not be liable if later studies suggested safer ways to design and market its products.”  The Court emphasized the statutory language in Michigan’s product liability statute and expressed an unwillingness to go beyond the contours of the statute to recognize plaintiff’s post-sale warning claim.

In dissent, Judge Donald criticized the majority’s portrayal of the facts, insisting that the majority “improperly usurps the role of the fact finder.”  Focusing on the pre-sale duty to warn, Judge Donald found the majority too quick to dismiss the record evidence bearing on the risk of harm.  Fundamentally, she claimed that the majority was setting the bar too high on a duty to warn:  “Simply because a particular risk does not boast medical certainty does not automatically render the risk speculative or theoretical.”  Judge Donald also relied extensively on a Fourth Circuit decision that the majority declined to follow.

Although confined to Michigan law, the competing analyses of duty to warn claims in the Sixth Circuit certainly carry relevance far beyond the instant opinion.  These opinions further illustrate the tension over what evidence suffices to show that a product likely caused the injury at issue, and whether those claims can reach a jury.

Sixth Circuit Follows Six Other Circuits In Upholding Obamacare’s Contraception Mandate Accommodation Against Religious Freedom Challenge

Posted in News and Analysis, Recent Cases, Supreme Court

The Affordable Care Act’s contraception mandate is back in the news.  Last Friday, the Sixth Circuit made headlines when it joined six other Circuits in upholding the accommodation scheme for religious non-profits that object to the contraception mandate.  See August 21, 2015 Opinion, Michigan Catholic Conference, et al. v. Burwell, et al. (6th Cir. Case Nos. 13-2723/6640) (PDF).  As we previously have covered in-depth, the contraception mandate is the requirement under the federal health care statute that requires employers to cover contraceptives in their employee health care plans.  In its August 21 opinion, the Sixth Circuit re-issued and re-affirmed its earlier decision from June 2014 in which the Court, in a 3-0 opinion written by Judge Moore, affirmed decisions by Michigan and Tennessee district courts denying preliminary injunctions to the plaintiffs on all their claims against the contraception mandate.  See June 11, 2014 Opinion, Michigan Catholic Conference, et al. v. Burwell, et al. (6th Cir. Case Nos. 13-2723/6640) (PDF).

Despite their June 2014 loss, the plaintiffs’ challenge was back before the Sixth Circuit because the plaintiffs petitioned for a writ of certiorari that focused on whether the accommodation provision violated their rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq.  On April 27, 2015, the U.S. Supreme Court granted the plaintiffs’ petition, vacated the Sixth Circuit’s June 2014 judgment, and remanded the case back to the Sixth Circuit for further consideration in light of the High Court’s high-profile decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), which held that family-owned for-profit companies with sincerely held religious beliefs are not required to comply with the contraception mandate.

In Friday’s 3-0 opinion, once again penned by Judge Moore, the Sixth Circuit panel considered the impact of Hobby Lobby but adhered to its original June 2014 disposition of the case. The panel explained that while the Supreme Court in Hobby Lobby had held that the federal government cannot force closely held companies with sincere religious objections to provide contraception coverage to their employees, “that issue is fundamentally different from the issue at the heart of this case—whether an entity’s decision not to provide such coverage by exercising an accommodation [under federal law] is, by itself, a violation of that entity’s religious beliefs.” The panel explained that in its original June 2014 opinion, it upheld the accommodation against a RFRA challenge, and “[n]othing in Hobby Lobby changes this analysis.”

To bolster its decision, the Sixth Circuit panel highlighted how six other circuits have addressed whether the accommodation passes muster under the RFRA, and all six have upheld the accommodation. All six, moreover, have held that Hobby Lobby does not compel a contrary conclusion.

Although it is likely that plaintiffs once again will petition for a writ of certiorari before the Supreme Court, they have several substantial hurdles to clear.  For one thing, there is no Circuit split.  The Sixth Circuit’s August 21 decision now means there are seven Circuits all holding that accommodation passes muster under RFRA.  In addition, as the Sixth Circuit panel noted in its opinion on Friday, the Supreme Court in Hobby Lobby “discussed the accommodation favorably” (though not definitively), and it never suggested that it violated RFRA.

We’ll of course continue to follow any appeal to the Supreme Court.

Sixth Circuit Gives Copyright Protection To Cheerleading Uniforms

Posted in Recent Cases

The Sixth Circuit recently explored the question, what makes a cheerleading uniform a cheerleading uniform?  Can it serve its function without stripes, chevrons, zigzags, and colorblocks?  In the district court, Varsity Brands, Inc. sued Star Athletica, LLC, claiming that Star copied Varsity’s copyrighted designs for cheerleading uniforms.   Star countered that Varsity did not hold valid copyrights to the designs.  The district court agreed, granting summary judgment for Star.  In Varsity Brands et al v. Star Athletica, in a divided decision, the Sixth Circuit reversed.  Judge Moore, writing for the majority, concluded that Varsity’s designs are protectable under the Copyright Act.  Along the way, the court addressed several unsettled issues of copyright law in the Sixth Circuit.

First, the court resolved what level of deference is owed to the Copyright Office (which initially approved Varsity’s copyright registrations).  That determination, the court concluded, is entitled to Skidmore deference, not the higher Chevron deference.  In light of the Copyright Office’s experience, published manual, and consistent treatment of Varsity’s designs, the court applied a presumption in favor of copyright validity.

Next, the court examined whether the designs were protectable. A cheerleading uniform, the court concluded, is a “useful article,” meaning that it serves an intrinsic utilitarian function.   For the design of a useful article to be copyrightable, it must incorporate pictorial, graphic, or sculptural features that can be separated from and exist independently of the article’s function.  After surveying the many tests that have been used to evaluate this question, the Court elected to take a “hybrid approach,” which asks, among other things:  Is the design objectively necessary to the article’s useful function?  What was the process for designing the article?  Can the design be separately imagined as an independent artistic work?

The key question over which the majority and dissent diverged is how to define the useful function of uniforms.  The utilitarian function of the cheerleader uniform, the majority concluded, is “to cover the body, wick away moisture, and withstand the rigors of athletic movements.”  Under this conception, the majority reasoned that the stripes and zigzags were decorative, not functional, and therefore protected.   Judge McKeague, in dissent, defined the uniform’s function more narrowly.  He concluded that the uniform and its accompanying designs served to identify a cheerleader as a cheerleader.  He further concluded that these decorative elements are part of the function, not separately protected.

Judge Moore countered that neither a “decorative” function nor an “identifying” function is properly considered part of what makes an article a “useful” article.  Were it otherwise, the court reasoned, there would be no protection for purely decorative art; and the function of conveying information – as in, conveying the fact that the wearer is a cheerleader for a particular team – cannot on its own render the uniform a “useful article.”

This may not be the last word on the subject, however.  Judge McKeague closed with a call to Congress or the Supreme Court to clarify the tangled law in this area.



As Debate Rages Over Reducing Federal Appellate Brief Limit To 13,000 Words, A Circuit Court Dismisses An Appeal For Failing To Comply With The Current 14,000 Word Limit

Posted in News and Analysis, Recent Cases

The Advisory Committee on Appellate Rules (the federal judiciary’s policymaking  body) has proposed amendments to Rules 5, 21, 27, 28.1, 32, 35, and 40 of the Federal Rules of Appellate Procedure that would reduce the length of various filings in the Circuit Courts.  As we covered back in February, the proposal garnering the most attention is the one to reduce the word limits for federal appellate briefs.  Under the current proposal, the maximum length of principal briefs would be reduced from 14,000 to 13,000 words and reply briefs would be reduced from 7,000 to 6,500 words.  (An earlier proposal had set the word count limits at 12,500 and 6,250, respectively.)

After publishing the proposed word count reductions back in August 2014, the Advisory Committee received substantial public comments from lawyers, judges, and bar associations. Many attorneys voiced opposition, claiming the new word limits would impede litigants from properly presenting their arguments on appeal and also would increase the filing of motions seeking leave to file overlength briefs. Many judges and courts, however, supported the word count reductions because of their view that federal appellate briefs are often unnecessarily long and burdensome on courts.

The proposed changes to the federal appellate rules will not go into effect until December 2016 given the long process involved for the adoption or amendment of federal rules (which includes the U.S. Supreme Court, and possibly Congress). No matter what word limits remain in place, appellate practitioners would be wise to pay heed to the expressed views of many judges who expect concise briefs. One thing is for sure. Word limits need to be taken seriously, and any attempt to stretch the rules may have dire consequences.

One litigant in the Federal Circuit recently found this out the hard way. In Pi-Net International Inc. v. JPMorgan Chase & Co., Case No. 2014-1495 (Fed. Cir.) (PDF), the Federal Circuit dismissed a patent appeal against JPMorgan Chase because the plaintiffs tried to evade the 14,000 word limit under Fed. R. App. P. 32(a)(7) by “squeezing various words together and deleting the spaces that should appear between the words.” As but one example, the Court highlighted a case citation on page 3 of plaintiffs’ first corrected brief which read as follows:


As the Federal Circuit correctly pointed out, the citation “is not one word, although that is how it appears” in the brief. Instead, “when written properly,” it is 14 words:

     Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).

The plaintiffs in PiNet also moved for leave to file a new “corrected brief,” which similarly was an attempt to evade the word limit. For example, the Statement of Facts on page 1 of the new corrected brief read as follows:  “Judge Andrews, after two years, transferred case to Judge Robinson. Markman conducted a week later. DDC ruled. Two days later, Notice of Appeal filed, against client instructions. Judges failed to recuse despite financial and relationship conflicts of interest. 60(d)(3) Motion is pending in DDC. Stay of Appeal or dismissal without prejudice is proper. Motion-to- Substitute-Plaintiff is pending in CAFC.” The robotic tone of the plaintiffs’ brief—omitting words such as “a” and “the”—clearly did not sit well with the Court. It denied the plaintiffs’ motion to file the new corrected brief and dismissed the appeal in its entirety.

The lesson is painfully obvious: Don’t game the rules or the Court. If you are close to the 14,000 word limit, don’t omit necessary words, develop a sticky space bar, or engage in word processing wizardry to get under the word limit. Better yet, if you are close to the word limit, go back for another round of revisions and shorten your brief if possible. The Court will appreciate your concise writing, and your client will have confidence in your crisp advocacy. In short, make your “brief” truly brief.

Judge Posner Goes Where No Judge Has Gone Before

Posted in News and Analysis, Recent Cases

We have previously discussed the citation of websites by parties as a substitute for citing to the record on appeal, and the practice in some Sixth Circuit opinions to rely on web citations to provide background context.  At the time, we noted that Judge Posner of the Seventh Circuit had gone so far as to conduct an experiment in chambers, while assuring the parties that the result “was not evidence.”

Judge Posner, however, goes much farther in yesterday’s opinion in Rowe v. Gibson.  In that case, a pro se prisoner claimed that he was in great pain because he was not able to take his Zantac prescription with his meals, but the defendant, a prison doctor, provided his own “expert” opinion that the time when Zantac is taken makes no difference to its effectiveness. The court reversed the district court’s grant of summary judgment to the defendant based partly on internet research and medical journal articles found by Judge Posner stating that Zantac will prevent pain when taken right before a meal.  Judge Posner defended his use of Internet sources as evidence by claiming that “[w]hen medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.”  The dissenting judge discussed the problems with appellate courts doing their own factual research, not least that it all but requires district court judges to conduct their own Internet research to avoid reversal.

Does Rowe represent the future?  The traditional rule is that facts not in the record cannot be raised in a brief.  That rule is slowly loosening with the easy availability of authoritative web sources.  But the line between providing background context and impermissibly expanding the record remains vague. And it is hard to imagine a consensus of federal appellate judges getting comfortable with reversing the decision below based on Internet searches, especially when those sources contradict the record.  Rowe could be seen as exceptional because it involved a pro se plaintiff and a self-serving expert opinion given by a defendant.  But pro se plaintiffs are the majority of all appellants (51% in 2014) and suspect expert opinions are not in short supply.  Only time will tell if appellate judges will continue to resist the lure of the Internet when they find the record below less than inadequate.

Sixth Circuit Panel Allows FOIA Request, Urges En Banc Consideration

Posted in En Banc Watch, Recent Cases

Last week, in a per curiam opinion in Detroit Free Press v. U.S. Department of Justice, the Sixth Circuit affirmed a decision granting the Free Press’s request for the mug shots of Detroit police officers facing federal charges. Although the case did not touch on the underlying charges against the officers, the panel took the unusual step of recommending to the full court that it reconsider the precedent that disposed of the case.

The Free Press requested the booking photographs of the eight indicted officers under the Freedom of Information Act, but the U.S. Marshals Service denied the request under FOIA’s “Exemption 7(C),” which allows agencies to refuse requests for law enforcement records that “would constitute an unwarranted invasion of personal privacy.” When the Free Press sued the DOJ, the district court found itself bound by the Sixth Circuit’s 1996 case of Detroit Free Press v. U.S. Department of Justice (Free Press I), which held that Exemption 7(C) does not apply to booking photographs because the release of booking photographs “in an ongoing criminal proceeding” does not implicate any privacy rights.

Similarly constrained, the panel in Free Press II affirmed the district court. However, the panel spent over half of the short opinion delineating the problems with Free Press I and urging the Sixth Circuit to reconsider the case’s holding en banc. Noting the split in the panel that decided Free Press I as well as the opposing interpretations of Exemption 7(C) from the Tenth and Eleventh Circuits, the court in Free Press II cited a series of cases expounding the privacy interest Congress intended to protect with Exemption 7(C). Observing the “badge of criminality” that attaches to a person through the release of his booking photograph, the court also reasoned that a person does not forfeit his interest in maintaining control over information merely because it has been made public in another form (e.g., a court appearance), nor because a criminal case remains pending. As always, we will continue to monitor this case as it possibly wends its way to en banc review.

Sixth Circuit Offers Pointers on Affidavits and Oral Argument

Posted in News and Analysis, Recent Cases

Yesterday, in Ondo v. City of Cleveland, the Sixth Circuit addressed precision in both affidavits and oral argument. The case involved a Section 1983 action arising out of an altercation with police officers. In response to the officers’ summary judgment motion, the plaintiffs submitted affidavits based upon “personal knowledge and belief.” The district court struck the affidavits based on their failure to be based upon actual knowledge, and the Sixth Circuit affirmed.  

On the affidavits, the Sixth Circuit held that the court acted within its discretion in striking them, relying largely on a prior unpublished (and the Court noted, non-binding) decision. The Court emphasized that its decision was not the product of formalism, or designed to take advantage of a “stylistic error.” Rather, the district court reasonably could not separate what parts of the affidavit were the product of personal knowledge, and what parts were based on belief. That was particularly so in light of factual discrepancies from prior filings by the plaintiffs.

On the oral argument point, counsel conceded at oral argument that a particular claim could not survive if the Court affirmed the striking of the affidavits. For Judge Sutton, who concurred in part and dissented in part, the concession sufficed to resolve the claim – he “would hold [plaintiffs’ counsel] to their answer.” The majority, however, felt compelled to address the merits, noting that they were not aware of any case “in which we have concluded, after full briefing, that Plaintiffs have completely abandoned every claim in their entire appeal based on a single verbal exchange during argument that did not include a clear and unequivocal surrender of all remaining issues,” and it expressed concern about a “chilling effect such a practice would have.”

The takeaway? On affidavits, be precise. Once you introduce the “belief” aspect, you open yourself up to challenge. In other words, pay attention to the admissibility requirements of Rule 56. On oral argument, the court’s guidance is less clear, particularly in light of the separate opinion. But counsel should generally expect to be held to their concessions at argument and not feel free to make such concessions with impunity and the hope that the court will view them as something other than what they are.