Opioid Update: Jury verdict reached against defendant pharmacies in opioid MDL

Yesterday, the first bellwether trial in the opioid multidistrict litigation (MDL) came to a close with a jury verdict in favor the plaintiffs. In this case, Ohio’s Lake and Trumbull counties sued CVS, Giant Eagle, Walgreens, and Walmart, arguing that the pharmacies drove the opioid crises in the counties by oversupplying prescription opioids and were thus liable for the public nuisances they created. The jury agreed, deliberating for 8 days after the 6-week trial. The litigation faced significant delays due to the COVID-19 pandemic.

The MDL arose from thousands of federal lawsuits brought by local governmental entities nationwide against opioid distributors and manufacturers, and it has never been uninteresting. The first scheduled bellwether settled on the eve of trial. Mandamus petitions flew, raising an assortment of procedural issues, such as district court recusals and the authority of municipal entities to raise claims based on harm to citizens’ health and welfare. One petition was successful, despite the high bar for mandamus relief. The Sixth Circuit granted mandamus and reversed leave to amend in the MDL 10 months after discovery had closed. The panel also reversed the district court’s discovery order that the pharmacies produce more than 10 years of nationwide dispensing data, which the panel had previously stayed.

The appellate activities did not stop there. On an interlocutory appeal, the Court issued a split opinion reversing the district court’s novel certification of a “negotiation class.” This decision marked the second time the Sixth Circuit rejected Judge Polster’s flexible application of the Federal Rules of Civil Procedure in the MDL, the first being the reversal of the leave to amend. And the mass action is unlikely to lack appellate excitement any time soon—at least one pharmacy has already indicated that it will appeal the jury’s verdict, citing a juror’s violation of court rules by researching an issue and presenting her findings to the rest of the jury.

We will continue to monitor further Sixth Circuit developments.

OSHA files emergency motion to dissolve the Fifth Circuit’s stay

At 2:28 a.m. this morning, OSHA filed an (overlength) emergency motion to dissolve the Fifth Circuit’s stay of OSHA’s vaccine mandate, taking three distinct positions.  OSHA principally argues, as expected, that it is likely to succeed on the merits because, OSHA reasonably concluded that the standard is necessary to address a grave danger, the Fifth Circuit’s statutory interpretation was flawed and its “constitutional concerns” were mistaken.  OSHA also argues there was ample support for its determinations, and that the balance of equities tips in its favor.

OSHA also stakes out a middle position, arguing that the Sixth Circuit should modify the stay so that the masking-and-testing requirement can remain in effect during the pendency of this litigation.  If nothing else, OSHA argues, the Sixth Circuit should not block its ruling giving employers the option to adopt COVID-19 policies. This would shield employers from state and local requirements that limit employers’ authority to require vaccination, face covering, or testing.

As a final fallback, OSHA asks for clarification of the Fifth Circuit’s order that OSHA “take no steps to implement or enforce” the regulation.  OSHA would like the Sixth Circuit to allow it to provide pre-enforcement information to the public about its “sometimes technical rules” so that people “can understand those rules and the agency’s reasoning.”  It also wants to take “purely internal steps,” such as drafting appropriate guidance or training call-center employees.  OSHA says this is necessary so that if the stay is lifted, “the agency can provide accurate and consistent guidance and enforcement.”

On a more procedural note: the Sixth Circuit has now consolidated all of the cases challenging the vaccine mandate into In re: OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000.  And yesterday, twenty-seven States, including Ohio, Kentucky, and Tennessee (though not Michigan) filed a petition for initial en banc (available here).  There are now several initial-en banc petitions pending in these consolidated cases, as we’ve previously discussed.  OSHA’s consolidated response to those petitions is due next Tuesday, November 30, 2021.

Stay tuned for further updates.

Initial En Banc Petitions, Procedural Possibilities, and the OSHA Vaccine Mandate.

It’s been only three days since the Sixth Circuit won the JPML lottery to consolidate and adjudicate every appeal nationwide challenging OSHA’s vaccine mandate. Yet there have already been interesting developments.

Many petitioners in the original Sixth Circuit cases have now moved for initial en banc review—which would bypass panel review entirely and send the case to be decided by all active judges (but would not include senior judges).  Almost immediately after the first such motion was filed on November 17 (in Phillips Manufacturing & Tower v. OSHA, No. 21-4028), the Sixth Circuit’s En-Banc Coordinator, almost certainly acting on behalf of a motions panel, asked OSHA to respond in just six days.  This was unusual both because the Court rarely calls for a response to an en banc petition, let alone an initial en banc petition, and the Court typically gives respondents about two weeks to respond.  But by the next day, November 18, after other challengers filed similar petitions, the court directed OSHA to file a single consolidated response regarding initial en banc review on November 30, 2021.

The en banc petitions chiefly argue that the enforceability of the vaccine mandate is of exceptional importance, something we doubt OSHA will dispute.  They also argue that the mandate is already headed for both en banc review and to the Supreme Court anyway, and so skipping a panel-level decision would be more efficient.  But if the issue is headed to the Supreme Court, which does seem likely, it’s not clear the Circuit should expend resources to have the entire court decide both the merits and the procedural wrangling likely to come.  That’s an issue that each active judge will have to decide for themselves.  We look forward to reading OSHA’s consolidated response on this important issue.

Along these procedural lines, we spoke with the Clerk’s Office to confirm that many of the cases from other circuits have not yet been transferred to the Sixth Circuit (though, notably, the Fifth Circuit case that ordered a stay has been transferred).  The Clerk’s Office expects those cases to be transferred early next week.  After that, the cases will be coordinated through one master docket, similar to what occurs in multi-district litigation (MDL).  The Circuit may also rely on “liaison counsel,” also a common MDL feature, to help coordinate a briefing schedule and other issues with all of the parties, though that remains only a possibility at this time.

We’ll continue to follow these issues as they unfold.

President Biden Nominates Andre B. Mathis to the Sixth Circuit

Yesterday, President Biden nominated Memphis, Tennessee litigator Andre B. Mathis to the Sixth Circuit, filling the seat of Judge Bernice B. Donald, who announced in May that she will assume senior status upon the confirmation of her replacement.

Mathis is currently a partner in the Memphis, Tennessee office of the law firm Butler Snow LLP, where he practices commercial, government, and labor & employment litigation.  He also has significant criminal defense experience, including as a CJA panel member for the Western District of Tennessee and with the Tennessee Innocence Project.

Prior to joining Butler Snow in 2020, Mathis was a member at the Memphis firm Glankler Brown, PLLC, which he joined as an associate in 2007.  He also has served on the Magistrate Judge Merit Selection Panel for the Western District of Tennessee and on the Sixth Circuit’s Federal Defender Evaluation Committee, and previously served as a chapter president for the National Bar Association.

Mathis was born and raised in Memphis, Tennessee, received his Bachelor of Arts from the University of Memphis in 2003, and graduated cum laude from that university’s Cecil C. Humphreys School of Law in 2007.  He is President Biden’s first nominee to the Sixth Circuit, and his confirmation would leave no vacancies on the Court.

The Sixth Circuit and the OSHA Vaccine Mandate

Sometimes federal courts of appeals get to play the lottery. The prize is not millions of dollars, but the chance to adjudicate every challenge to a particular federal agency action filed in federal circuit court.  The Sixth Circuit won that lottery yesterday afternoon.  At issue is OSHA’s highly controversial vaccine mandate. On November 5, 2021, OSHA promulgated the mandate as an emergency temporary standard, which allowed it to sidestep typical notice-and-comment proceedings for six months.

The mandate requires all businesses with 100 or more employees to “develop, implement, and enforce” mandatory COVID-19 vaccination policies.  86 Fed. Reg. 61,402, 61,402.  These vaccination policies, in turn, must require unvaccinated employees to undergo weekly testing and to wear face coverings. See id. at 61404.

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Evolution of the Sixth Circuit Approach to §1292(b) Petitions for Interlocutory Appeals

In our previous post, we discussed the difficulties of succeeding with a Section 1292(b) petition in both the district court in the circuit court.  We also noted that while the Sixth Circuit’s rate of acceptance of orders already certified by district courts has been higher than average for federal circuit courts.  We then reviewed decision from the past few years, and found that the Sixth Circuit has recently been accepting for appeal about 90% of orders certified under §1292(b).  This post describes why we think this is happening.

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A Sea Change for 1292(b) Interlocutory Appeals in the Sixth Circuit

It’s been almost a decade since this blog discussed the likelihood that the Sixth Circuit would accept a discretionary appeal under 18 U.S.C. §1292(b).   That the section that gives a district court the discretion to certify an order for appeal if the issue involves an important question of law for which there is substantial ground for difference of opinion and where its resolution will efficiently advance the litigation.  The appellate court also has discretion whether to accept review of the certified order.  Section 1292(b) appeals are especially helpful in complex cases to correct early errors on questions of law that, if left until after final judgment, might otherwise require the parties to re-do years of expensive litigation.

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The Pandemic Didn’t Slow Down the Sixth Circuit

We keep up on statistics important to our clients, such as the time it takes to decide appeals, and we were especially interested to see how the pandemic had affected the Sixth Circuit.  Our gut feeling was that things might have slowed down a little in more complicated cases, but that the circuit had generally kept on top of things overall.  So we were not surprised to learn from the Judiciary’s latest statistics that the average time to decide cases from the notice of appeal until the decision, across all the circuits, had slowed by almost a month to 9.7 months.  Many circuits, including the Sixth, have specifically worked for years to streamline the appellate process, shaving the average time to decide an appeal from 11.7 months in 2010 to 7.7 months in 2017, so this backsliding is a little disheartening.

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Decision about a zoning dispute yields insights for both Federal Courts and appellate practice

The Sixth Circuit’s recent decision in Benalcazar v. Genoa Township, — F.3d — (6th Cir. June 10, 2021), provides a nugget in the law of Federal Courts regarding consent decrees. It’s also interesting from an appellate-practice perspective.

The case concerned a zoning dispute. Landowners in an Ohio township sought to rezone their rural acreage for development. The township agreed, but individual residents of the township did not. They utilized state law to pass a referendum that prevented the rezoning. Then landowners responded by suing the township in federal court, alleging that they were being deprived of their rights under the Due Process and Equal Protection Clauses. When the township and the landowners agreed to settle the federal case through a consent decree, the district court permitted the individual residents to intervene. They did, and moved to dismiss the suit. The district court granted their motion only in part and then approved the consent decree, and the residents appealed.

On appeal, the principal question presented was whether a legitimate federal court dispute existed, since that’s a necessary predicate for a consent decree. And how should the court go about answering that question? Continue Reading

Sixth Circuit Joins Four Other Circuits in Restricting Plaintiffs’ Standing to Bring Claims under the Fair and Accurate Credit Transactions Act (“FACTA”)

More than a decade ago, Congress attempted to address a novel threat that was then only in its nascent stages: identity theft.  The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) provided consumers with several tools to protect their identity, including the ability to request free annual credit reports from the three major credit reporting agencies and to place fraud alerts on their credit files if they suspected they had been the victims of identity theft.  The Act also prohibited businesses from printing more than the last five digits of a customer’s credit card number (or the expiration date) on a receipt.  Anyone who has used a credit card over the past decade has undoubtedly seen Congress’s handiwork in the truncated account number (“***********12345”) that appears on most credit card receipts—preventing would-be fraudsters from stealing credit card numbers from discarded or misplaced receipts.

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