We recently reported on the Sixth Circuit’s practice of curtailing extensions of time and not granting them as freely as in the past. Thus far, the reports related to that are largely anecdotal and there is no formal policy change or related pronouncement from the Court. That could change, as illustrated by a recent Second… Continue Reading
Category Archives: News and Analysis
Subscribe to News and Analysis RSS FeedThe Trend Toward The Use of Summary Dispositions
Posted in News and AnalysisWe have previously reported on the Sixth Circuit’s caseload and the trend toward the use of unpublished opinions. We’ve discussed that the number of published decisions per judge, the opinions that are the most important to create precedent, are fairly consistent throughout all circuits. But the latest statistics show an interesting trend toward the use… Continue Reading
Recent Sixth Circuit Statistics on Reversal Rates and Timing
Posted in News and AnalysisTwo of the most important issues for deciding when to appeal are often the chances of success and how long will it take to get a decision. This post briefly addresses the newly released statistics for 2012. Because it is an important part of the decision whether to appeal, we have often covered reversal rates… Continue Reading
En Banc Ruling on Michigan’s Proposal 2 Goes to the High Court
Posted in News and Analysis, Supreme CourtThis morning, the U.S. Supreme Court accepted certiorari on a case that the Sixth Circuit Appellate Blog has been watching since July 2011: Coalition to Defend Affirmative Action v. Regents of the University of Michigan (6th Cir., Case Nos. 08-1387/1389/1534 & 09-1111). In Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for… Continue Reading
Sixth Circuit Issues Policy on the Use of Electronic Devices During Oral Argument
Posted in News and AnalysisYesterday, the Sixth Circuit issued a new policy on the use of electronic devices by counsel during oral argument, available here. Prior to that policy, the Sixth Circuit generally prohibited the use of any electronic devices at oral argument. As the evolution of the electronic record and electronic briefing took place, however, this caused practical… Continue Reading
Sixth Circuit Reverses Denial of Class Certification
Posted in News and Analysis, Recent CasesIn Arlington Video Productions, Inc. v. Fifth Third Bancorp, the Sixth Circuit, in an unpublished decision, reversed summary judgment granted to Fifth Third and reversed the denial of class certification. The case arose from a dispute between a business that had a business checking account and its bank, and it concerned a number of fees… Continue Reading
Sixth Circuit Caseload Keeps Pace with National Trends
Posted in News and AnalysisSince 1997, the federal courts have maintained annual statistical profiles for each of the 12 circuits of the U.S. Court of Appeal and the 94 U.S. district courts, together with statistical totals for those courts. In recent days, the newest compilation was published for the fiscal year that ended on September 30, 2012. The Sixth… Continue Reading
Busy Day Today for Legal Challenges To The Health Care Statute As The Sixth Circuit Issues A New Opinion And The Obama Administration Announces Proposed Shift in Policy
Posted in News and AnalysisToday has been an active day for legal challenges relating to the new health care statute. To start things off, the Sixth Circuit earlier this morning rejected the latest constitutional challenges to the so-called individual mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148. … Continue Reading
High-Profile Lawsuits Headed to the Sixth Circuit in 2013
Posted in News and Analysis, Recent CasesLast year was an active year for the Sixth Circuit, particularly on its business docket. As you know from following our blog, the Sixth Circuit issued a number of key opinions in 2012 addressing class actions, expert opinions, white collar crime, franchise and intellectual property issues, and pleading standards. Although 2013 has started off slowly… Continue Reading
Sixth Circuit Affirms Denial of Class Certification
Posted in News and Analysis, Recent CasesLast week, in Miller v. Countrywide Bank, No. 12-5250, the Sixth Circuit applied the U.S. Supreme Court’s Wal-Mart v. Dukes decision to affirm a denial of class certification. Specifically, the Sixth Circuit concluded that the district court did not abuse its discretion in finding that Dukes foreclosed the proposed class from establishing commonality. As in… Continue Reading
Sixth Circuit Affirms Dismissal of Complaint Based on Discovery Violations
Posted in News and Analysis, Recent CasesIn Universal Health Group v. Allstate Insurance Company, the Sixth Circuit affirmed as a sanction the ultimate penalty – dismissal of a complaint based on pervasive discovery violations. The Court, in an opinion by Judge Kethledge, recited the litany of discovery violations caused by plaintiff’s counsel, aptly noting that “to recite the facts of this… Continue Reading
Video Interview: Discussing Recent Challenges to the Abortion and Contraception Mandate with LXBN TV
Posted in News and Analysis, Supreme CourtBelow is a link to my recent interview on LXBN TV with host Colin O’Keefe of LXBN where I discuss the legal challenges to the so-called abortion and contraception mandate under the Patient Protection and Affordable Care Act, Public Law 111-148. As I highlight during the interview, there currently are over 40 lawsuits making their way through… Continue Reading
Sixth Circuit Considers Appellate Sanctions
Posted in News and Analysis, Recent CasesIn Scherer v. JP Morgan Chase & Company, the Sixth Circuit affirmed the district court’s judgment based on the application of collateral estoppel, and it then turned to the issue of sanctions for pursuit of a frivolous appeal. The Court began by noting that it had authority to impose sanctions under 28 U.S.C. § 1927… Continue Reading
En Banc Court Declares Michigan’s Proposal 2 Unconstitutional
Posted in News and Analysis, Recent CasesIn November 2006, Michigan voters approved, by a 58-to-42 margin, a statewide ballot initiative commonly known as Proposal 2. Proposal 2 amended the Michigan Constitution to prohibit the State of Michigan and its public universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity,… Continue Reading
Sixth Circuit Clerk: Fewer Extensions Will Be Granted
Posted in News and AnalysisWe previously reported over the last year about the changing practices at the Sixth Circuit concerning oral argument and related changes designed to expedite the overall appellate process. At a presentation yesterday to the Cincinnati/Northern Kentucky Chapter of the Federal Bar Association, Sixth Circuit clerk Debbie Hunt provided some practice pointers related to these issues. … Continue Reading
Recent Oral Argument Sitting Confirms Sixth Circuit Trends
Posted in News and AnalysisWe have previously reported on two trends that have been apparent in the Sixth Circuit’s approach to oral argument: First, that the court is scheduling more sitting days in order to move cases along, and second, that the court is starting to restrict the number of oral arguments that it hears. Both of these trends… Continue Reading
Sixth Circuit Reaffirms Strict Reading of Liability Insurance Contracts
Posted in News and Analysis, Recent CasesIn Goodyear v. Nat’l Union Fire Ins., Goodyear sought recovery from two of its insurers for fees and costs incurred defending against an SEC investigation and a class action initiated after the company’s announcement that it would restate its earnings for certain previous years. The SEC ultimately terminated the investigation and the lawsuit was dismissed,… Continue Reading
Reminder: Sixth Circuit Year in Review Webinar Set for Thursday
Posted in News and AnalysisThere’s still time left to register for the upcoming Sixth Circuit Year in Review Webinar that we are hosting on Thursday at 1pm eastern. The webinar will provide 1.5 hours of free CLE credit, which has been approved for Ohio, Kentucky, and Tennessee. A link to the registration form is available here. A number of… Continue Reading
The Sixth Circuit Issues Revised Local Rules And Internal Operating Procedures
Posted in News and AnalysisWe previously reported on the proposed revisions to the Sixth Circuit Rules, including those changes most likely to immediately impact practitioners (here and here). The Court has now formally issued its new rules, effective August 16, 2012. The Court has also issued new Internal Operating Procedures and the now-indispensable Guide to Electronic Filing. The Internal… Continue Reading
D.C. Circuit Splits with Sixth Circuit on Color Graphic Cigarette Warnings; Supreme Court Showdown Likely
Posted in News and AnalysisOn Friday, a divided D.C. Circuit struck down as unconstitutional the U.S. Food and Drug Administration’s proposed color warnings on all cigarette packages depicting the negative health consequences of smoking. See Opinion, R.J. Reynolds Tobacco Co., et al. v. FDA, et al. (D.C. Cir. Case No. 11-5332). The warnings, which were formally unveiled by the… Continue Reading
Predicting Outcomes Based On Questioning at Oral Argument
Posted in News and AnalysisIn connection with the Supreme Court’s health care decision, many commentators doubted whether judges’ questioning at oral argument can be used to predict outcomes. Yet recent research has shown that the emotional content of a judge’s questions does predict voting patterns at the Supreme Court. We applied this research to the Sixth Circuit by looking… Continue Reading
Sixth Circuit Affirms John Deere’s HCQIA Immunity
Posted in News and Analysis, Recent CasesIn Moore v. John Deere Health Care Plan, Inc., the Sixth Circuit affirmed summary judgment for John Deere—a health maintenance organization. Under the Health Care Quality Improvement Act (“HCQIA”), the Court held, John Deere was immune from damages in a suit brought by David Moore and his wife—the sole officers, directors, and shareholders of Community… Continue Reading
Sixth Circuit Holds Kentucky Bar Association Unconstitutionally Applied Rule of Professional Conduct to Curb Free Speech
Posted in News and Analysis, Recent CasesIn Berry v Schmitt, the Sixth Circuit held that the Kentucky Bar Association (“KBA”) could not use Kentucky Rule of Professional Conduct 8.2(a) to bar an attorney, John Berry, from commenting on the Kentucky Legislative Ethics Commission investigation of Senate President David Williams. Senator Williams was investigated for alleged fund-raising violations. Berry attended the public… Continue Reading
Sixth Circuit Finds that Kentucky Farmers Violated Nature Conservancy Easement
Posted in News and Analysis, Recent CasesOn May 21, 2012, the Sixth Circuit issued a decision of interest to the growing land conservation movement. The Court upheld the decision of the Eastern District of Kentucky finding that Larry and Marsha Sims violated a conservation easement that was part of a real estate purchase agreement with The Nature Conservancy. The Nature Conservancy… Continue Reading