Statistics update – time to decision, reversal rates, and en banc petitions

By Colter Paulson on Posted in News and Analysis

It’s time for another update on the Sixth Circuit statistics people ask about all the time.  The most important is how long a Sixth Circuit appeal will take.  Other than questions about the political leanings of individual judges, this is the most-asked question from clients.  The latest numbers from the Judiciary show the median time from the notice of appeal to decision is about nine months, which is consistent with the last few years.  That’s pretty fast, and good enough to be the fourth-fastest circuit.  The Second Circuit has been getting slower over the past few years, and is now officially the slowest circuit at fifteen months.  The Eighth Circuit is the fastest at just under five months. 

The next most important question is likelihood of reversal.  And there is some news here.  I was surprised to find that reversals in civil cases have, like the rates the year before, stayed under 11%.  The circuit’s historical reversal rate (see here and here) in civil cases has been between 13 to 16%, usually at the upper end of that range.  Other circuits range from 6% in the Tenth Circuit to 15% in the Fifth Circuit.  The Sixth Circuit’s reversal rate in criminal appeals is 5%, on the other hand, which is between its historical norm of 5-7%.  The Eighth Circuits continued its long-term trend of becoming the absolute worst place to appeal to overturn a criminal conviction, reversing in just 1.5% of the criminal cases.  That circuit also boasts the lowest rate for prisoner petitions, reversing less than 1% of the time.  It’s difficult in any circuit to win a reversal in a criminal case, but the Eighth Circuit goes the extra mile, and then some, to avoid doing so.

The circuit fielded about 400 en banc petitions last year and 150 panel rehearing-only petitions, which is less than in previous years (thanks to the clerk’s office for the numbers).  That mean that judges decided nine rehearing petitions, in addition to writing two opinions, each week.  Given that the circuit only grants en banc rehearing 3-4 times each year, that drives home the importance of petitions and briefs that get to the point right away.  We want to catch the judge’s interest in the first or second paragraph. 

A few other notes:  The circuit continues to have a significantly smaller caseload than it had five years ago, while being fully staffed and having 16 senior judges to help with the load.  It continues to use visiting judges sparingly. 

Supreme Court to review Sixth Circuit interpretation of video privacy law

By Trane Robinson on Posted in Case Updates, News and Analysis, Recent Cases, Supreme Court

We learned last week that two panel decisions of the Sixth Circuit will receive another round of review.  First, the Supreme Court granted certiorari to the Sixth Circuit in Salazar v. Paramount Global.  Second, the Sixth Circuit granted rehearing en banc in Clippinger v. State Farm Auto Ins. Co.  We preview both cases in a pair of posts.

First, Salazar is an intriguing case of statutory interpretation arising under the Video Privacy Protection Act.  The question presented is whether the Act’s phrase “goods or services from a video tape service provider” “refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.”  The Sixth Circuit divided over that question, with Judges Nalbandian and Batchelder answering only “audio-visual content” and Judge Bloomekatz taking the broader view.

The Video Privacy Protection Act has an interesting origin story.  Congress passed it after Judge Robert Bork’s confirmation hearing on his unsuccessful Supreme Court nomination in 1987.  Adverse senators used the judge’s leaked video rental history against him.  Congress, in response, sealed off that material from disclosure.  The Act “creates civil liability for any ‘video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider.’” 18 U.S.C. §2710(b)(1).

The parties are Michael Salazar and Paramount Global, owner of the website 247Sports.com, which reports on college sports recruitment.  Salazar subscribed to the 247Sports newsletter and watched its highlight videos on Facebook, and the website kept track of his video viewing history.  Salazar sued under the Act, but the district court dismissed his claim on the pleadings because it concluded he was not a “consumer,” as defined. 

The divided Sixth Circuit affirmed.   Under the Act, A “consumer” is a “subscriber of goods or services from a video tape service provider.”  Presumably, 247Sports is such a provider because its highlight tapes are “audio visual materials.”  But Salazar was not a “consumer,” the panel majority determined, because he subscribed only to the website’s newsletter.  The court employed the “whole-text” canon of interpretation, giving meaning to the Act’s definition of “consumer” in context rather than “chopping it up and giving each word the broadest possible meaning.”  From that perspective, the court concluded that “the most natural reading … shows that a person is a ‘consumer’ only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’”  The 247Sports newsletter to which Salazar subscribed was not in that vein.

The majority acknowledged that its decision splits “with the Second and Seventh Circuits’ approach to this issue”—a point the dissent (and cert. petition) did not lightly cast aside.  Judge Bloomekatz’s response:  The “majority’s reading of the VPPA contravenes the plain language of the statute and, thus—perhaps unsurprisingly—conflicts with the reasoning of our sister circuits.”  Judge Bloomekatz’s syllogism was thus:  a “consumer” is a “subscriber of goods or services from a video tape service provider”—247Sports delivers video tape content (college sports recruitment videos), so Paramount is a provider—Salazar subscribes to one of its goods or services, the newsletter—ergo, Salazar is a consumer.  The sticking point is whether the good or service subscribed to must be of audio-visual character.  To the majority, context said “yes”; to the dissent, plain text said “no.”

With divided circuits and a pair of iron-sharpening-iron opinions from the Sixth Circuit, the Justices will have the last word on the Video Privacy Protection Act’s reach.  Cudos to Salazar’s counsel for the cert. grant in this case about a high school sports recruiting website.  Salazar opened his petition to the Court with a creative and fitting reference to the greatest high school sports movie of all, Hoosiers.  Salazar’s invocation of the classic Indiana basketball film may have connected with Justice Kavanaugh, the youth basketball coach, or Chief Justice Roberts, who grew up in Indiana, or Justice Barrett, who lived in Indiana as recently as 2020.

And as for predictions, the Court reversed more than three-quarters of its cases last term.  But don’t overread the numbers.  The Sixth Circuit was affirmed half the time (2/4 cases) last term and already was unanimously affirmed this term in Coney Island Auto Parts Unlimited, Inc. v. Burton.  Salazar could go either way.

En banc Sixth Circuit passes on antitrust indirect seller case

By Katherine von Schaumburg and Mary Walser on Posted in Case Updates, En Banc Watch, Learned Sixth, News and Analysis

This blog recently covered an interesting antitrust case that upheld the Supreme Court’s bright line rule established in Illinois Brick: indirect buyers are barred from pursuing money damages under the federal antitrust laws. The Sixth Circuit has now decided against rehearing the case en banc.

The denial, however, drew two dueling statements.  Judge Bush agreed with the denial, but suggested that the case “may warrant the [Supreme] Court’s review to clarify the parameters of Illinois Brick” regarding indirect sellers in four ways.  Judge Murphy, author of the panel opinion (along with Sutton & Kethledge) responded to each point.

First, Judge Bush wrote that the difficulty of calculating an indirect purchaser’s damage, a main concern in Illinois Brick, was not an issue in this case. Because United Allergy and the Primary Care Providers (PCPs) were in a joint venture, calculating the damages from the alleged antitrust harm would be rather straightforward: they are the profits United Allery would have made if they were not driven from the market by the defendants.  Importantly, Judge Bush noted, a joint venture does not “create a partnership in the legal or technical sense of the term.”  Judge Murphy responded that the interpretation of antitrust laws does not change based on the facts, meaning the relevant language cannot prohibit an indirect seller from suing in one instance but allow them to sue in another.  An indirect seller is an indirect seller, he wrote, and they are barred from suing by Illinois Brick.

Second, Judge Bush criticized the panel’s approach as too formalistic, saying it ignored the “antecedent issue of how to define an indirect purchaser.”  Rather than the panel’s yes/no approach, he argued for a pragmatic and market-centric view.  Under his approach, United Allergy is not an indirect seller just because United Allergy and the PCPs jointly provided allergy testing.  Judge Murphy responded that the Supreme Court has avoided formalistic line drawing when considering substantive issues of antitrust liability, but the Court has “stuck” to formalistic rules “even when it made little economic sense” when considering procedural issues like standing.

Third, Judge Bush felt the panel read Supreme Court precedent on proximate cause too literally, and he argued that “the mere existence of a corporate entity between the plaintiff and the defendant would not bar antitrust standing under Illinois Brick.”  Judge Murphy responded that lower courts are not empowered to replace Illinois Brick’s bright-line rule with a general foreseeability test.

Finally, Judge Bush questioned whether Illinois Brick should apply be applied to injunctions, where the bar for relief “is much lower” than for damages.  Judge Bush leaned on precedents from the Second, Third, and Ninth Circuits that held Illinois Brick cannot bar suits for an injunction.  Judge Murphy responded that United Allergy never argued for, and therefore forfeited, the possibility of differing standards between a request for damages and a request for injunctive relief.  He explained that if the Supreme Court takes this case, it should recognize the issue was resolved on forfeiture grounds and not on the merits. 

A certiorari petition in this case seems likely.  With a circuit split on these important issues, the Supreme Court will ultimately decide the bounds of Illinois Brick’s indirect seller rule.

Sixth Circuit Weighs Second Amendment Rights of Illegal Immigrants

By Gerald Sharpe on Posted in Case Updates, Recent Cases

Do illegal immigrants have Second Amendment rights? The Sixth Circuit just said no, though the panel couldn’t agree on why. Authorities found three firearms when searching the home of Milder Escobar-Temal, a Guatemalan citizen who entered the U.S. illegally over a decade ago and who was suspected of abusing his 14-year-old stepdaughter. He was charged under 18 U.S.C. § 922(g)(5)(A), which prohibits individuals unlawfully present in the U.S. from possessing firearms. Escobar-Temal argued this provision violates his Second Amendment rights. A Sixth Circuit panel unanimously rejected that claim, but the judges splintered on their reasoning.

The Second Amendment’s “right to keep and bear arms,” District of Columbia v. Heller held, is an “individual right.” Fourteen years after Heller, N.Y. State Rifle & Pistol Ass’n v. Bruen created a two-step methodology for analyzing Second Amendment claims.

Step one is a textual analysis. Courts examine the Second Amendment’s plain text to see if the rights-claimant and his conduct fall within it. If the claimant satisfies this step, the Constitution presumptively protects his conduct, and the burden shifts to the government. Step two is a historical analysis. The government is required to show that the challenged provision “is consistent with the Nation’s historical tradition of firearm regulation.” Here, courts reason analogically between the modern gun provision at issue and historical firearm regulations, assessing whether they are “relevantly similar.”

The opinions in United States v. Escobar-Temal

Bruen thus framed the questions in Escobar-Temal. At step one: was the defendant among “the people” who possess the right to bear arms? And if so, step two: does American history and tradition support disarming unlawfully present noncitizens? At step one, Escobar-Temal initially bore the burden of showing that he and his conduct fell under the Second Amendment’s plain text. While no party disputed that his conduct (possessing a firearm) was presumptively protected, the key question was whether he—as someone in the country illegally—fell within the plain meaning of “the people.”

Relying on Supreme Court cases about other constitutional rights, the majority reasoned that “the people” is broader than just U.S. citizens and includes those “who have otherwise developed sufficient connection with this country to be considered part of” our national community. Escobar-Temal satisfied this test because his long-term residence, employment, and family ties in the U.S. showed enough connections to the national community despite his unlawful immigration status.

But Escobar-Temal failed at the next step, as the majority held that the government satisfied its burden by demonstrating a longstanding historical tradition of founding-era laws disarming those who “lack[ed] a regulable relationship to the government.” Among others, the majority cited Quakers who refused to take loyalty oaths and those who wouldn’t renounce their allegiance to the British Crown, as key examples demonstrating this historical tradition.

Judge Thapar agreed with the result but not the reasoning. For him, the case ended at step one because “the people,” he reasoned, refers only to citizens who consented to the government of the United States. Since illegal immigrants are not citizens, he concluded that they do not fall within the ambit of the Second Amendment.

To support this argument, Judge Thapar drew from sources like Blackstone, the Federalist Papers, state constitutions, and other historical materials. He noted, for instance, George Washington’s Farewell Address to underscore how the founders believed “democratic governance necessitated a strict division between citizens and aliens.” Even though step one can generally be characterized as a textual analysis and step two a historical one, Judge Thapar still engaged with history at his step one inquiry, but only insofar as it was relevant to uncovering the original meaning of “the people.”

Takeaways and Looking Ahead

Query how substantial the disagreements were between the judges on the panel. Was this simply two paths to the same conclusion, or reflective of a larger fight about which rights noncitizens enjoy? Judge Thapar concluded that illegal immigrants simply have no Second Amendment rights, whereas the majority maintained they presumptively enjoy the right to bear arms, but history permits Congress to categorically remove it. These alternative approaches call to mind then-Judge Barrett’s discussion in Kanter v. Barr, in which she considered “competing ways of approaching the constitutionality of gun dispossession laws.” The first approach “uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature’s power to take it away.”

More broadly, this case joins a growing trend of courts relying on text, history, and tradition to resolve constitutional cases. By mandating this approach, Bruen rejected judge-made balancing tests like the tiers of scrutiny, long used in areas like the First Amendment. Look out for whether the Supreme Court will replace the tiers of scrutiny in favor of a Bruen-like approach elsewhere.  

Another issue concerns which historical period governs Second Amendment challenges brought against state gun restrictions rather than federal ones. The Supreme Court has held that the Fourteenth Amendment—ratified in 1868—incorporated the Second Amendment, making it applicable against the states (it originally constrained only the federal government). While founding-era history generally governs claims against federal gun restrictions, it remains unsettled whether courts evaluating state regulations should instead look to the historical tradition at or around the Fourteenth Amendment’s ratification.

Judge Murphy, Originalism, and Friedrich August von Hayek

By Colter Paulson on Posted in Learned Sixth, News and Analysis

The Sixth Circuit completed a hat-trick when the NYU’s Classical Liberal Institute invited Judge Murphy to give its 19th annual Friedrich A. von Hayek Lecture, in honor of the famous economist and philosopher. As we discussed a few years ago, Judge Kethledge delivered the 15th Hayek Lecture, discussing administrative law, and Chief Judge Sutton delivered the 13th Hayek Lecture, which covered technology and federalism.

Judge Murphy’s lecture is a thoughtful defense and careful explanation of originalism, especially as contrasted what he called the “policy approach” of the Legal Realist movement. He argued that Hayek would likely have been drawn to modern originalism far more than Posnerian pragmatism. Interestingly, Judge Pryor of the Eleventh Circuit also discussed Hayek and originalism in an earlier lecture in the same series. Others have written on the subject, as Hayek’s legal and economic approach has enjoyed a resurgence of popularity.

In possible Supreme Court preview, Sixth Circuit holds Michigan’s talk-therapy ban unconstitutional

By Trane Robinson on Posted in Case Updates, News and Analysis, Recent Cases, Supreme Court, Uncategorized

The Sixth Circuit just held that Michigan’s talk-therapy ban infringes free speech.  Pending at the Supreme Court is the constitutionality of Colorado’s equivalent law. That case, Chiles v. Salazar, was argued in October.  And the Sixth Circuit panel could fairly foreshadow the justices’ upcoming decision.  Judge Kethledge and Judge Larsen formed the majority with Judge Bloomekatz dissenting.

Conversion talk-therapy is controversial.  The opinion explains that detractors argue the therapy is “ineffective and harmful,” while the plaintiff therapists say that it helps patients “become more comfortable with their biological sex and thus decrease the dissonance between their gender identity and biological sex.”  The therapy involves no medication or physical intervention, just “spoken words and nothing more.”  But Michigan passed a law banning all therapy that includes counseling “to change an individual’s sexual orientation or gender identity” other than to assist someone in a “gender transition.”  

In Catholic Charities v. Whitmer, several plaintiff therapists challenged that ban on First Amendment grounds because they provide conversion counseling in the form of talk therapy. The Sixth Circuit’s opinion, written by Judge Kethledge, first held that the therapists had standing because the law chilled their speech and placed them under a credible threat of enforcement.  On the merits, the panel found the law drew both content- and viewpoint- based speech distinctions.  The ban forbids counseling to align identity with biological sex but allows counseling to assist “a transition away from biological sex,” even when the providers deliver therapy by talking.  That amounted to Michigan taking sides and preventing “therapists from advancing any other perspective.”

The law found no First Amendment “off ramps” to circumvent strict scrutiny.  It was no defense that Michigan was merely regulating the medical profession, because the regulated medical treatment “consists solely of spoken words.”  The government cannot evade the First Amendment with labels.  Nor could the State characterize therapy as conduct (the act of providing service), because “when the putative conduct ‘triggering coverage under the statute consists of communicating a message,’ the restriction is treated as one on speech.”  As Judge Kethledge mentioned in the argument, the speech–conduct distinction can be “illusory.”  The therapist’s particular message triggers this law, and also triggers speech protections.  Concluding, the court held that Michigan’s conversion-therapy ban would not be the “first-ever viewpoint-discriminatory restriction” to survive strict scrutiny.

Judge Bloomekatz dissented at length.  From the mantle of federalism, she protested that the majority’s reasoning “threatens to subject wide swaths of medical regulations to strict scrutiny” despite States’ “historic power to regulate medicine.”  Framed as “medical treatment,” Judge Bloomekatz continued, the case resembles Skrmetti, which reaffirmed that patients lack a fundamental “right to receive a medical treatment that the state has determined is ineffective and harmful.”

Judge Bloomekatz also asked why the court should “forg[e] ahead” rather than await a Supreme Court decision in Chiles?  The majority answered that preliminary-injunction appeals “are by definition time-sensitive,” leaving the court no time to slow walk its “unflagging obligation” to decide the case.  (Sidenote: Section 1657 of Title 28 says federal courts “shall expedite the consideration of … any action for temporary or preliminary injunctive relief.”)

Either way, the Supreme Court will likely decide the issue this term. Judges Kethledge and Larsen have had some success convincing the Supreme Court in the recent past, including in NFIB v. OSHA (siding with Judge Larsen’s dissent) and Loper Bright v. Raimondo (favorably citing Judge Kethledge).  And Colorado has been unsuccessful in the First Amendment cases of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 303 Creative v. Elenis and Counterman v. Colorado.  But Judge Bloomekatz’s thorough dissent will certainly connect with several justices that supported Colorado at oral argument.  Although the Court has over eighty amicus briefs on the merits, we won’t be surprised if the Supreme Court justices draw from both of these compelling Sixth Circuit opinions.

Sixth Circuit requires proximate causation for “indirect seller” antitrust claims

By Katherine von Schaumburg and Mary Walser on Posted in Case Updates, Learned Sixth, News and Analysis, Recent Cases

A recent Sixth Circuit decision by Judge Murphy highlighted that sometimes the decisive antitrust issue is identifying who was harmed and where they sit in the distribution chain.  In Academy of Allergy & Asthma et al. v. Amerigroup Tennessee, Inc, the court affirmed that a provider’s federal antitrust claims were too indirect to recover under the Sherman Act.

The plaintiff, United Allergy, was a service provider to primary-care physicians.  Physicians contracted with United Allergy and paid a flat rate for allergy-testing services provided to the physicians’ patients, and then the physicians would submit reimbursement requests to insurers.  United Allergy alleged that, facing a deluge of allergy testing and treatment reimbursement claims, Tennessee-based insurers initiated a boycott of United Allergy through coordinated audits, denied claims, restrictive reimbursement policies, and pressure on physicians to abandon United Allergy altogether.  As a result, United Allergy claimed it lost profits and many patients lost access to allergy treatments.

United Allergy sued the insurers alleging that their coordinated expulsion violated the Sherman Act and various state laws.  The district court dismissed United Allergy’s federal antitrust claims for lack of “antitrust standing” because it “alleged only indirect injuries that flow out of the harms the defendants inflicted on physicians.”  The Sherman Act provides a private right of action to any person injured “by reason of anything prohibited in the antitrust laws.”  The Supreme Court and Sixth Circuit have placed limits on this open-ended language.  For a plaintiff to have standing in an antitrust case the plaintiff must allege an antitrust injury and proximate causation.  The Sixth Circuit discerned this test from its holding in Southaven Land Co. v. Malone & Hyde and the Supreme Court’s decision in Lexmark International v. Static Control Components.

Applying that test, the Sixth Circuit affirmed, holding that United Allergy’s alleged indirect harms precluded recovery under the federal antitrust laws.  Unlike the district court, the Sixth Circuit focused on the issue of proximate causation and almost completely avoided the antitrust injury issue, stating “[e]ven if United Allergy suffered [an adequate antitrust] injury, its suit still fails on proximate-causation grounds.”  Proximate causation, the court explained, limits a defendant’s liability in certain circumstances.  The Supreme Court seminal antitrust precedents of Hanover Shoe v. United Shoe Machinery Corp. and Illinois Brick Co. v. Illinois informed the Sixth Circuit’s reasoning.  

Hanover Shoe established that direct purchasers may recover the full amount of an overcharge from an antitrust violator, even if the direct purchaser shifted some of the increased costs from the overcharge downstream to its own customers.  In Illinois Brick, or the “mirror image” of Hanover Shoe, the plaintiffs were “indirect purchasers” who did not buy directly from the alleged antitrust violator but had experienced higher prices that had been passed down to them.  Illinois Brick establishes the hardline rule that only “direct purchasers” and not “indirect purchasers” can sue for damages under federal antitrust law.

In this case, the Sixth Circuit noted that Illinois Brick applies to indirect buyers and sellers as the “rule applies no matter which way the harm flows along a vertical chain of distribution.”  While United Allergy is not a purchaser but a seller, its relationship to the insurers is one step removed.  United Allergy sold its services to physician groups, who then sought reimbursement from insurers.  As a result of this indirect relationship, the Sixth Circuit held that United Allergy could not establish proximate causation for the antitrust injuries it asserted against the insurers.  The physicians, not United Allergy, were the directly harmed party.

United Allergy had sought damages for lost sales and profits as a result of the boycott, but the court rejected these claims.  First, Illinois Brick requires contractual privity between the antitrust violator and the plaintiff, meaning only direct purchasers or sellers can recover from lost sales flowing from an anticompetitive action’s reduction in output. Here, there was no contractual privity between United Allergy and defendants.  Second, regardless of Illinois Brick, lost profit damages for sales it might have made to prospective physicians are far too speculative.  United Allergy would need to show that “the physicians refused to enter the market as ‘the result of the alleged’ anticompetitive conduct,” which they could not do in this case.  The court rejected United Allergy’s other efforts to distinguish Illinois Brick. 

Judge Kethledge joined the majority opinion and concurred separately.  While Judge Kethledge agreed with the court’s handling of Supreme Court caselaw and the ultimate outcome, he sympathized with the real-world impact of the insurer’s boycott on consumers.  He pointed out that the market for allergy services in Tennessee was “woefully undersupplied” until United Allergy entered the market, providing more services and reduced rates for allergy patients.  Following United Allergy’s departure the market will “return to the former, undesirable status quo.” “The goal of antitrust law is to advance consumer welfare,” Judge Kethledge explained, and the insurers’ boycott frustrates that goal. Overall, this case demonstrates that proximate causation serves a critical gatekeeping role in antitrust lawsuits.  Even where a plaintiff alleges anticompetitive conduct, the causal chain must be sufficiently direct to be actionable.  What’s more, United Allergy’s case reminds us that the indirect-purchaser rationale of Illinois Brick applies in reverse to sellers, too.  And while proving an antitrust injury remains necessary, it may not always be determinative if proximate causation fails.

Special thanks to our antitrust colleagues Mary Walser and Katherine von Schaumburg for their work on this post.

Circuit judges offer brief writing tips

By Trane Robinson on Posted in Uncategorized

It is not every day that sitting judges give lawyers specific instruction on how to write their briefs.  Judge Kethledge wrote a helpful primer about effective writing a while back.  This week, Chief Judge Pryor and Judge Newsom from the Eleventh Circuit offer their own nugget of free advice:  Begin briefs with an introduction.  We appreciate it and while opinions on this point may differ, we fully agree.

The judges wrote a letter to a member of the Advisory Committee on Appellate Rules that suggested an amendment to Appellate Rule 28, the rule covering the contents of briefs.  They recommend a new subsection that encourages briefs to include an introduction.  The rule currently is silent.  Their proposal would make introductions permissive not mandatory (though certainly encouraged).  The judges suggest “a short introduction that briefly frames the case, identifies the key legal issue(s), and recommends a resolution.”

Their suggestion to amend the rule doubles as a writing instructional.  Judges Pryor and Newsom liken a “a good introduction” to an “elevator pitch.”  A successful intro should avoid the technicalities of an argument section and read the way “a lawyer might explain” the case to family “over Thanksgiving dinner.”  They observe that “savvy lawyers often use” introductions to “great effect.”  And the judges give guidance on how to do just so:  A good introduction “briefly introduces the dispute, tees up the key issues, and explains why they should be resolved” favorable to your client.  These reputed judges’ ringing endorsement of introductions, we think, is reason enough to include them (even if they count toward the word limit).

Introductions, they admit, can help the judge recall the case “right before he or she takes the bench.”  That’s a good reason to write them.

Sixth Circuit Grants Mandamus in FirstEnergy Discovery Dispute

By Trane Robinson on Posted in Case Updates, News and Analysis, Recent Cases

An “an assortment of legal and regulatory actions” has spun off from the high-profile corruption prosecution and conviction of former Ohio House Speaker Larry Householder.  Back in 2016, the Ohio General Assembly passed legislation designed to bail out energy giant FirstEnergy from dire financial straits.  Speaker Householder accepted a hefty campaign bribe to see the legislation through—and the Sixth Circuit somewhat recently affirmed his conviction.

Those episodes triggered investigations into FirstEnergy by the SEC, Ohio Attorney General, and Ohio Public Utilities Commission.   Shareholders initiated securities class actions of their own.  FirstEnergy, meanwhile, took internal action:  Its “board hired Squire Patton Boggs LLP to investigate the allegations in the Householder complaint. And FirstEnergy hired [other counsel] to investigate the allegations and to advise the company about how to handle the subpoenas.”  The securities-fraud class called for those investigation reports in discovery.  The district court obliged the plaintiffs’ demand.

That discovery order gave rise to a mandamus petition and, important to all civil litigants, the Sixth Circuit’s reaffirmation of a robust attorney-client privilege.  FirstEnergy (backed by “over forty amici”) asserted that attorney-client privilege and work-product protection excludes internal investigation reports from disclosure.  A panel of the Sixth Circuit with Chief Judge Sutton, Judge Batchelder, and Judge Nalbandian agreed in a per curiam opinion.  Compelled discovery was not just wrong, the court explained, but also reflected legal “errors sufficiently exceptional to warrant mandamus relief.”

Attorney-client privilege ensures the confidentiality of communications pertaining to legal advice.  Upjohn (1981) is the leading precedent.  And “[a]s with Upjohn, FirstEnergy and its board hired lawyers to ‘secure legal advice’ through internal investigations”—enough to attach privilege.  (For instance, Squire provided “investigative findings, legal analyses, and assessments of potential criminal and civil liability.”)  The work-product doctrine, codified by Civil Rule 26(b), doubly protected the internal reports FirstEnergy had “prepared in anticipation of litigation.”  The court minded the “realities of litigation.”  And it dismissed as fiction hairsplitting between quote “business decisions” and legal advice—legal advice informing business decisions.

Legal error on its own, however, does not sustain the “drastic and extraordinary remedy” of mandamus.  A writ of mandamus issues not against the parties but against the lower court judge, ordering him to take action consistent with settled law (in this case, revoke the flawed discovery order).  Courts moderate that dramatic relief by insisting the remedy is a last resort, backed by a clear right, and overall appropriate.

The first requirement—no other adequate relief—poses a high hurdle.  But FirstEnergy cleared it:  First, appeal in the ordinary course after final judgment, and so after disclosure, is not relief at all with “no way to unring those disclosure bells.”  Beyond that, the district court spurned FirstEnergy’s try for interlocutory review (28 USC §1292(b)); defiance followed by contempt findings did not guarantee review because civil contempt is not immediately appealable; and the Mohawk decision forecloses collateral-order-doctrine review, expressly favoring mandamus in attorney-client-privilege cases.  Note that an interlocutory appeal attempt likely is a precondition for mandamus relief in this setting.  On the remaining factors, the “district court made substantial departures from bedrock privilege and work-product principles,” and those departures upset the “predictable and certain” standards “essential for FirstEnergy and future litigants facing perilous litigation consequences.”

The Sixth Circuit’s mandamus holding marks a notable recommitment to “the oldest of the privileges for confidential communications known to the common law.”  Work-product protections provide a necessary supplement.  This case demonstrates why.  Internal investigations are an essential pillar for companies like FirstEnergy to withstand a “tsunami of litigation” and regulatory action.  Thorough investigations require “full and frank” attorney-client communication, which requires trust and privacy.  The Sixth Circuit strongly signaled that businesses can be confident in confidentiality.

(As a post-script, the Sixth Circuit denied the shareholder plaintiff’s requests to clarify the mandamus order and for panel and en banc rehearing.)

Sixth Circuit Allows Immediate Appeal of Intervention Denial

By Madeline Brown on Posted in Case Updates, Uncategorized

The Sixth Circuit’s recent decision in Estate of Donovan L. Lewis v. City of Columbus sheds light on important issues relating to the collateral order doctrine and third parties’ rights to intervene. 

The underlying merits of the case involve a Monell claim under Section 1983 that the Columbus police department maintains policies and customs of excessive force and racial discrimination.  Because those claims implicate policies in the department’s collective bargaining agreement, which the Fraternal Order of Police negotiated, the FOP sought intervention as of right.  It argued that the policy reforms suggested by the Plaintiff would undermine its statutory duties and contractual rights as the department’s “sole bargaining representative.”  The district court, however, denied the request to intervene, and the FOP immediately appealed to the Sixth Circuit.

Judge Davis’s opinion for a unanimous panel held that, while appellate jurisdiction typically extends only to “final decisions” under 28 U.S.C. § 1291, Cohen’s collateral order doctrine conferred jurisdiction here.  The FOP met all three criteria under the Cohen doctrine, which allows interlocutory appeals of orders that (1) conclusively resolve the issue, (2) involve an important question separate from the merits, and (3) are effectively unreviewable after final judgment.  The Court emphasized that the district court’s denial, though “without prejudice,” does not defeat finality.  The district court’s order functioned as “a complete denial permitting an interlocutory appeal, despite its express invitation for [the FOP] to renew its motion should the case progress to equitable remedies.”  The Court noted a Supreme Court case, Stringfellow v. Concerned Neighbors in Action, that suggests “orders denying intervention in any respect fall within the potential reach of the Cohen doctrine.”

That brought the Court to the FOP’s right to intervene.  Federal Rule of Civil Procedure 24(a) allows a party to intervene if it claims an interest relating to the action and is so situated that “disposing of the action may . . . impede” its ability to protect its interest, “unless existing parties adequately represent that interest.”  The Court held that the FOP satisfied all four elements for intervention as of right.  The FOP’s intervention motion was timely, and exclusion would impair its interests in the collectively bargained policies that the lawsuit challenges.  The FOP also had a substantial legal interest in defending the policies that it negotiated, especially since the city’s interests and litigation strategy are likely to diverge from the FOP’s, suggesting that the city does not adequately advance the FOP’s interests.  In confirming the FOP’s right to intervene, the Court emphasized that intervention rights are broad.

This decision underscores two points: First, orders denying intervention can be immediately appealed under the collateral order doctrine.  Second, the Sixth Circuit interprets the rules underlying the right to intervention liberally when litigation threatens contractual or statutory rights and obligations.  This decision shows that both the trial and appellate courthouse doors may be open to third parties with a live stake in the case.

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