The Sixth Circuit reinstated Ohio’s small air emission source exemption to the best available technology rule (“BAT”) in Sierra Club v. Christopher Korleski (No. 10-3269). Under the Clean Air Act, states must create state implementation plans (“SIPs”) to meet certain air quality standards. If the EPA approves the state’s proposal, the SIP becomes federal law, and any… Continue Reading
Monthly Archives: May 2012
Annual Judges’ Night Dinner to be Held on June 5th
Posted in UncategorizedThe Cincinnati/Northern Kentucky chapter of the Federal Bar Association will once again host the annual Judges’ Night Dinner on June 5th. Details about the event and how to register are available here. The Judges’ Night Dinner is generally held prior to an en banc sitting of the Sixth Circuit, and most of the judges, as well… Continue Reading
A Texas Sized Trademark Decision for the Sixth Circuit
Posted in UncategorizedIn T. Marzetti Company v Roskam Baking Company , the Sixth Circuit decided that the mark “Texas Toast” is not entitled to trademark protection for a specific type of crouton. Following closely on the heels of the Circuit’s recent Maker’s Mark trademark ruling, the Court continues to develop its jurisprudence on trademark infringement issues, particularly in the context of… Continue Reading
BREAKING: Sixth Circuit En Banc Court Adopts New Standard For Proving Discrimination Under the ADA, But In A Bold Move Refuses To Adopt The Standard Followed By A Supermajority Of Circuit Courts
Posted in En Banc WatchEarlier today in its en banc decision in Lewis v. Humboldt Acquisition Corp., No. 09-6381 (PDF), the Sixth Circuit unanimously overruled the standard set forth in its 16 year-old decision in Monette v. Electronic Data Systems Corp., 990 F.3d 1173 (6th Cir. 1996), which required a plaintiff bringing a discrimination claim under the Americans with… Continue Reading
Supreme Court Declines to Hear Frequent Fliers’ Claims
Posted in News and AnalysisThe Supreme Court has declined to hear Simon v. Continental Airlines, Inc., Case No. 11-1150, a putative class action brought by frequent flier members against Continental Airlines, Inc. Plaintiffs’ complaint alleged that Continental breached the terms of their frequent flyer agreements by unilaterally changing the terms of the agreements and charging more miles than advertised… Continue Reading
WHIRLPOOL SEEKS EN BANC REVIEW OF PANEL’S DECISION IN WASHING MACHINE LITIGATION
Posted in En Banc WatchAs we previously reported back on May 4, 2012, a three-judge panel of the Sixth Circuit, relying heavily on the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451 (2011), affirmed class certification in a multi-district litigation involving alleged design defects leading to mold and mildew in certain front-load washing machines… Continue Reading
Sixth Circuit Upholds Finality of Insurance Settlements Against Non-settling Insurer
Posted in Recent CasesThe Sixth Circuit, in order to promote the finality of settlements, ruled against a non-settling insurer’s claim for equitable contribution against a settling insurer. Yesterday, the Sixth Circuit released its opinion in OneBeacon America Insurance Co. v. American Motorists Insurance Co. OneBeacon and AMICO were both insurers of B.F. Goodrich and, along with other insurers,… Continue Reading
Seventh Circuit Disagrees With the Sixth Circuit in Construing Compensable Time Under The Fair Labor Standards Act
Posted in News and Analysis, Recent Cases, Supreme CourtLast week, Judge Posner, writing on behalf of the Seventh Circuit, disagreed with the Sixth Circuit when examining whether, in cases where a collective bargaining agreement does not provide for compensation for the time a worker spends putting on protective clothing to start his shift, the time spent walking from the locker room to the work… Continue Reading
Michigan Company Appeals Decision Dismissing Claims Against Democratic Republic of the Congo Due to Sovereign Immunity
Posted in Recent CasesOn May 11, 2012, Triple A International, Inc., a Michigan corporation, appealed the decision of the Eastern District of Michigan dismissing Triple A’s claims to collect on a debt allegedly owed to it by the Democratic Republic of the Congo. Triple A Int’l, Inc. v. The Democratic Republic of Congo, Case No. 10-15137. In 1993,… Continue Reading
How Important Are Standards of Review?
Posted in News and AnalysisAppellate lawyers think about arguments in terms of the applicable standard of review, as that is the lens the court will use to evaluate an appeal. There are four main standards of review: Under “de novo” review, an appellate court decides an appeal without any deference to the lower court’s decision. Review for “clear error”… Continue Reading
**EXCLUSIVE VIDEO INTERVIEW WITH GENERAL WILLIAM. K. SUTER, U.S. SUPREME COURT CLERK**
Posted in InterviewsLast month in Toledo, Ohio, I had the privilege of conducting an exclusive video interview with General William K. Suter, Clerk of Court of the Supreme Court of the United States. You can watch my video interview below. General Suter was at The Toledo Club on April 20 as part of a luncheon and swearing-in… Continue Reading
Sixth Circuit Upholds Trademark Protection of Maker’s Mark Signature Red Dripping-Wax Seal
Posted in Recent CasesIn an opinion rich with the history of bourbon, the Sixth Circuit held that Maker’s Mark’s signature trade dress element of its trademark, the red dripping-wax seal, was due protection. Maker’s Mark has used the red dripping-wax seal since 1958, and in 1980 registered a trademark of its trade dress. In 2001, Jose Cuervo’s began… Continue Reading
When Is a Defendant Not a Defendant? Sixth Circuit Decides Important CAFA Removal Case
Posted in Recent CasesThe Sixth Circuit yesterday answered this question, holding that under the Class Action Fairness Act of 2005 (“CAFA”), a third-party defendant is not a “defendant” permitted to remove an underlying state court action to federal court. In re Mortgage Electronic Registration Systems, Case No. 12-501 (PDF). In reaching this conclusion, the Court joined the Fourth, Seventh… Continue Reading
Recent article questions the value of oral argument
Posted in UncategorizedIn a recent article by Adam Liptak in the New York Times, he noted that several commenters have questioned the value of oral argument at the U.S. Supreme Court. Needless to say, this matter is not confined to the Supreme Court, as we recently reported concerning the Sixth Circuit’s evolving thinking on the question of oral argument. … Continue Reading
Sixth Circuit upholds $59 million tax deduction
Posted in UncategorizedIn American Financial Group v. United States, the Sixth Circuit recently rejected an IRS appeal seeking a determination that a $59 million deduction taken by an insurance company was inappropriate. The appeal ultimately turned on an actuarial guideline issued by the National Association of Insurance Commissioners concerning how insurance companies should handle accounting questions connected… Continue Reading
Dirty laundry: Sixth Circuit affirms class certification in washing machine litigation
Posted in UncategorizedYesterday, the Sixth Circuit affirmed class certification in an interlocutory appeal under Rule 23(f) in an MDL concerning alleged design defects in certain front-load washing machines produced by Whirlpool, In re: Whirpool Corporation Front-Loading Washing Products Liability Litigation. The case involves washing machines that allegedly became susceptible to mold and mildew which allegedly led to… Continue Reading
“Can We Appeal That Now?” – Discretionary Interlocutory Appeals at the Sixth Circuit
Posted in News and AnalysisAn often repeated question by litigants to their attorneys is whether an adverse ruling by the district court is subject to immediate appeal. The answer to that question is, of course, highly circumstantial. Depending on how their case is procedurally situated, in addition to the underlying substantive issues in some instances, litigants may or may… Continue Reading
Sixth Circuit Reverses Dismissal Against Pro Se FDCPA Plaintiffs
Posted in News and Analysis, Recent CasesIn Lisa Bridge v. Ocwen Federal Bank, the Sixth Circuit reversed a dismissal in a FDCPA case brought by pro se plaintiffs regarding their mortgage. Lisa Bridge, the only person listed on her mortgage, owed monthly payments to Aames Capital Corporation. Her bank, Firstar, refused to honor her April mortgage check. Thereafter, Lisa ordered Firstar… Continue Reading
Judge Sutton Advises Lawyers To Consider State Constitutional Law
Posted in News and AnalysisSpeaking at a lecture series held at the Ohio Supreme Court, Judge Sutton recently called on lawyers to take state constitutional law seriously. He said that in nine years on the federal bench he has heard just one case involving claims under a state constitution. Judge Sutton then explained that every plaintiff alleging a civil… Continue Reading
Sixth Circuit upholds Fen-Phen convictions
Posted in UncategorizedIn United States v. Cunningham, the Sixth Circuit affirmed the convictions of a pair of Kentucky lawyers related to the $200 million Fen-Phen settlement. The Court’s opinion chronicles the actions of Shirley Cunningham, Jr. and William Gallion, who were lawyers representing 440 individuals who had opted out of a nationwide Fen-Phen class action. While the lawyers succeeded… Continue Reading
Sixth Circuit Reverses Summary Judgment, Finds Expert Testimony Improperly Excluded by District Court
Posted in Recent CasesAs we reported last week, a trend has emerged in the Sixth Circuit with expert witnesses facing difficult challenges so far this year. Recently, however, one expert survived the more rigorous scrutiny. In V&M Star Steel v. Centimark Corporation, (No. 10-3584) (V&M Star Steel.pdf), V&M sued Centimark Corporation (“Centimark”) alleging breach of contract and negligence stemming… Continue Reading