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Split Panel of the Sixth Circuit Holds that Cat’s Paw Theory Applies to FMLA Retaliation Claims

            Last week in Marshall v. Rawlings, a split panel of the Sixth Circuit held that the cat’s paw theory of liability applies to FMLA retaliation claims.  In Marshall, an employee was fired after using FMLA leave.  The employee sued for FMLA retaliation, ADA discrimination, FMLA interference, and intentional infliction of emotional distress.  The district … Continue Reading

Sixth Circuit Clarifies Exhaustion Requirement in ERISA Suits

In Hitchcock v. Cumberland University 403(b) DC Plan, the Sixth Circuit decided what could be a very important case in ERISA litigation. Practitioners are familiar with the common injunction upon plaintiffs to exhaust administrative remedies before they seek relief in court, as well as the limited and narrow exceptions to that requirement. But the question … Continue Reading

Sixth Circuit To Rehear Legislative Prayer Case En Banc

Last week, the Sixth Circuit granted en banc review in Bormuth v. County of Jackson, where a split panel had held that a district court had erred in rejecting the plaintiff’s argument that the prayer preceding a Michigan county’s Board of Commissioners’ monthly meeting violated the First Amendment by coercing residents to support and participate in the … Continue Reading

The Sixth Circuit Weighs in on the Phrase “Applicable Nonbankruptcy Law” Under the Bankruptcy Code

In Metropolitan Government of Nashville & Davidson County v. Hildebrand, the Sixth Circuit explains how to read the phrase “applicable nonbankruptcy law” as used in the Bankruptcy Code.  The chapter 13 individual bankruptcy case discussed the phrase in the context of 11 U.S.C. § 511(a), which provides that the appropriate interest rate for tax claims … Continue Reading

Sixth Circuit Rejects Commissioner’s Claim that Taxpayers Aren’t Allowed to Avoid Roth IRA Limits

In Summa Holdings, Inc. v. Comm’r of Internal Revenue, a unanimous panel reversed the judgment of a United States Tax Court and rejected the Tax Commissioner’s attempt to reclassify a series of transactions which had originally allowed two taxpayers to avoid Roth IRA contribution limits and lower their tax obligations.  The Court recognized that the … Continue Reading

Sixth Circuit Provides Guidance in Trademark Cases

In NetJets, Inc. v. IntelliJet Group, LLC, the Sixth Circuit offered important interpretations, regarding trademark infringement, of both federal law and Ohio common law on trademarks. In a careful and deliberate analysis that in part affirmed, reversed, and remanded the district court’s holding, the Court offered a view into what trademark holders, and alleged trademark … Continue Reading

Sixth Circuit: Foster Parents Can Enforce Right to Foster Care Payments Under Federal Law

A unanimous panel of the Sixth Circuit held today in D.O., et al. v. Glisson that the Child Welfare Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. § 1983.  The CWA provides for federal foster care and adoption assistance to eligible states.  To be eligible, a state … Continue Reading

The Sixth Circuit Clarifies Pleading Standards

United States ex rel. Andrew Hirt v. Walgreen Company offers an important cautionary tale for plaintiffs considering claims, or defendants facing claims, brought under the False Claims Act. But it also offers some insights regarding allegations of fraud more generally. The Sixth Circuit faced, head-on, the question of the heightened pleadings standard, and made clear … Continue Reading

Tire Company Can’t Compel Arbitration in China Under Expired Contract

Yesterday, in Linglong Americas, Inc. v. Horizon Tire, Inc., a unanimous panel of the Sixth Circuit rejected a tire manufacturer’s attempt to compel arbitration of claims in China under a contract that had already expired.  The manufacturer and its distributor had a “Collaboration Agreement” with an arbitration clause. The agreement expired in 2011 and was … Continue Reading

Sixth Circuit Issues Split FCA Decision in Fracking Case

In United States ex rel. Harper v. Muskingum Watershed Conservancy District, a divided panel of the Sixth Circuit interpreted the 2010 amendments to the False Claims Act (FCA) and affirmed the district court’s dismissal of relators’ qui tam action filed under the FCA’s reverse-false-claim and conversion provisions.  Relators alleged that Muskingum Watershed Conservatory District (MWCD), … Continue Reading

Sixth Circuit, Enforcing Notice of Appeal Rule, Denies Challenge to $225M Auto Part Price Fixing Settlement

On Friday, the Sixth Circuit refused to overturn a $225 million settlement deal reached between end-payor plaintiffs and auto parts makers accused of price fixing. Two objectors to the deal had asked the court to review a June order by U.S. District Judge Marianne O. Battani granting final approval to settlement in 19 cases that … Continue Reading

Flint Water Controversy Provides Civil Procedure Lesson Under CAFA Exception

In Mason v. Lockwood, Andrews & Neuman, a split panel of the Sixth Circuit affirmed a district court’s decision to remand a class action to state court under the “local controversy” exception to the Class Action Fairness Act.  CAFA requires a court to “decline” jurisdiction over a class action that otherwise qualifies for federal court … Continue Reading

Sixth Circuit: Standard For Sealing Judicial Records “Vastly More Demanding” Than For Rule 26 Protective Order

In Shane Group, Inc. v. Blue Cross Blue Shield of Mich., a unanimous panel of the Sixth Circuit vacated the district court’s orders sealing “most of the parties’ substantive filings” and approving a class action settlement in a price-fixing action against an insurer. In vacating the orders placing documents under seal and the settlement approval, … Continue Reading

Car Dealership That Sets Terms of Credit Must Comply With Equal Credit Opportunity Act

Under the Equal Credit Opportunity Act (“ECOA”), creditors who deny credit or change the terms of credit arrangements must notify applicants of the specific reasons why.  At issue in the Sixth Circuit’s recent decision in Tyson v. Sterling Rental, Inc. is whether a “middle man” like a car dealership is a “creditor” that must meet … Continue Reading

Just Approaching The Canadian Border Can Satisfy The Fourth Amendment’s Probable Cause Requirement For A Suspicionless Search

In D.E. v. Doe (15-2128), the Sixth Circuit upheld the conviction of a teenager who “took a wrong turn on his way to summer camp.”  When he reached the Canadian border, he asked permission to turn around without crossing the border—but had his car searched instead.  The opinion written by Judge Rogers holds that a … Continue Reading

Judicial Candidates and Free Speech

In a recent decision that affects judicial elections in Kentucky and throughout the Sixth Circuit (Winter v. Wolnitzek), a unanimous panel weighed eight provisions in Kentucky’s Code of Judicial Conduct against the First Amendment free speech rights of judicial candidates.   The specific provisions included prohibitions on (1) “campaign[ing] as a member of a political organization” … Continue Reading

Sixth Circuit Vacates $20 Million Arbitration Award

In an unpublished opinion Star Insurance Company vs. National Union Fire Insurance Company of Pittsburgh, PA, the Sixth Circuit vacated a judgment of the district court confirming an arbitration award for roughly $20 million.  To say that is an unusual outcome is an understatement, as courts generally confirm arbitration awards against all manner of challenges. … Continue Reading

Sixth Circuit Rejects Solar Energy Antitrust Claim

In Energy Conversion Devised Liquidation Trust vs. Trina Solar Limited, the Sixth Circuit rejected a $3 billion antitrust case filed by a bankrupt solar energy company.  The plaintiff alleged that three solar panel producers in China agreed to decrease prices to below cost levels, with the support of the Chinese government, and in so doing, … Continue Reading

Sixth Circuit Rejects College Athletes’ “Legal Fantasy”

The Sixth Circuit issued a short tongue-lashing this week, calling claims by former college athletes in Marshall v. ESPN, “a legal fantasy.”  Former basketball and football players brought a putative class action against college athletic conferences and TV networks, claiming a right to the licensing of their names and images in the television broadcast of … Continue Reading

Sixth Circuit Limits Successor Liability For Product Defects

When one company acquires another, the “successor” company is not automatically responsible for warning purchasers regarding alleged defects in products previously  sold by its predecessor.  In Holland v. FCA US LLC, the Sixth Circuit affirmed the district court’s grant of a motion for judgment on the pleadings in favor of a successor to an automobile … Continue Reading

Cloud Storage Trips Up Spyware Software Service Under The Wiretap Act

In Luis v. Zang (No. 14-3601), the Sixth Circuit held that a maker of monitoring software was potentially liable under federal and state Wiretap Acts—not for selling the software, but for saving the intercepted communications on its own servers.  The plaintiff claimed that the defendant Awareness Technologies, Inc. markets the WebWatcher brand as allowing customers … Continue Reading

Objections To Criminal Presentence Report Protected Against Discovery In Class Action

In Cyphert v. Scotts Miracle-Gro Co. (In re: Morning Song Bird Food Litig.), No. 15-3943, the Sixth Circuit imposed a high standard on class action plaintiffs seeking to use two sets of objections to a presentence report (PSR) in a criminal case against the corporate defendant.  The plaintiffs argued that the objections, which had been … Continue Reading
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