New Standard For Notice In FLSA Collective Actions:  Clark v. A&L Homecare and Training Center

By Colter Paulson on Posted in Recent Cases

The Sixth Circuit has announced new standards for collective action lawsuits under the FLSA in Clark v. A&L Homecare and Training Center.  There are already many good summaries of this decision around the legal internet, so this recap will be short.  The question is how to determine whether other potential plaintiffs are “similarly situated” so that the district court should issue a formal notice to those potential plaintiffs about the claims.  Though this notice does not endorse the lawsuit, it has the inevitable effect of significantly bolstering both the number of plaintiffs and their bargaining position.  The majority opinion holds that the two-step “certification” approach that district courts have applied for 35 years (which began with Lusardi v. Xerox, 118 F.R.D. 35 (D.N.J. 1987)) is not grounded in the statute and does not incorporate the Supreme Court’s guidance on the subject.  It also rejects the Fifth Circuit’s new FLSA standard in Swales v. KLLM Transport Services, 985 F.3d 430 (5th Cir. 2021). 

Judge Kethledge’s opinion demands more a rigorous analysis than the “modest showing” of similarity required by Lusardi.  It explains that “similarity” requires a “factbound” analysis that can only be made after notice and after other plaintiffs are subject to discovery.  To obtain notice, however, the court adopts the “strong likelihood” standard from preliminary injunctions, holding that “for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a ‘strong likelihood’ that those employees are similarly situated to the plaintiffs themselves.  That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance.”  Courts should also consider arbitration agreements when deciding whether to authorize notice.

In a concurrence, Judge Bush notes that the circuit’s new standard “may significantly lengthen” the notification process.  He then opines that equitable tolling should be available under FLSA actions to avoid “deplet[ing] remedies that Congress has duly provided.”  Judge Bush suggests that tolling “should be recognized by analogy to class actions.” 

Judge White gently chides the majority for overturning a framework “reflects years of dialogue among district and appellate courts.”  But she also says the new standard is “not unreasonable” and appreciates “the majority’s desire to clarify the notice standard.”  She agrees with Judge Bush that equitable tolling should be available “to would-be opt-in plaintiffs.”  The majority opinion does not mention equitable tolling, but the agreement on the issue between Judge Bush and Judge White is a strong hint to district courts.

In sum, FLSA plaintiffs will likely have a harder time persuading district courts to issue notice of the lawsuit to other potential plaintiffs.  Many of the common factual and legal battles, perhaps including discovery issues, will now be front-loaded so trial courts can decide if plaintiffs have met the “strong likelihood” standard.

Reversal Rates In The Sixth Circuit And Elsewhere

By Colter Paulson on Posted in News and Analysis

This post provides the latest statistics for a question we are frequently asked:  what is the chance of obtaining a reversal on appeal.  Private civil cases see the most reversals of any category at 13.4%, followed by appeals in bankruptcy and civil appeals involving the United States at 12.5%.  In other words, the circuit reverses about once for every seven or eight cases involving private plaintiffs. If you are appealing a criminal conviction, or otherwise in prison, your chances of winning anything are much lower. This year, the circuit reversed about 5% of criminal cases, which is unusually low–the circuit’s average is around 10%. Prisoners and habeas plaintiffs (who often labor under difficult standards of review) prevail in one-in-twelve to one-in-twenty appeals. 

Over the years, the Sixth Circuit’s reversal rates have been relatively steady, and its numbers similar to the reversal rates in most other circuits. That said, two circuits consistently reverse significantly less than average.  The Eighth Circuit’s overall reversal rate usually hovers around 5%, and its reversal rate in criminal cases is usually about 3%–both are much less than any other circuit. These very low reversal rates have been in place for decades.  The Fifth Circuit usually has the second least reversals. That’s tough luck for appellants in those circuits. (Note that private civil cases and bankruptcy can be exceptions; both circuits will often reverse those cases about as often as their sister circuits.)

What could account for these large differences?  Given that the Eighth and Fifth circuits reverse at near-normal rates when private parties are on both sides, the explanation could well be that circuit judges in the Eighth and Fifth Circuits are more deferential to state and federal governments than circuit judges elsewhere.  Whatever the reason, the effects are consistent and have a big impact on both litigants and the development of the law in those circuits—litigants going up against the government on appeal should expect about half the chances of success that they would expect elsewhere.

What Circuits Have The Most (and Least) Influence On The Sixth Circuit?

By Colter Paulson on Posted in News and Analysis

About a decade ago, this blog found that Sixth Circuit judges cited the Second, Seventh, and Ninth Circuits more often than any other circuit.  When we controlled for the number of opinions, we found that opinions from the First, Seventh, Tenth and D.C. Circuits were three times more likely to be cited than opinions from other circuits.  After our recent post showing that some circuits issue a far higher percentage of published opinions than others, we decided to take another look at what circuits are the most influential in Sixth Circuit opinions over the last three years.  The results were surprising.

Despite issuing the lowest number of published opinions per judge, the Third Circuit was cited more than any other circuit.  The Second Circuit and D.C. Circuits were next, and then the First and Tenth Circuits.  Then there is a big drop off in citations to the Seventh and Eight Circuits, and another large drop to the Fourth, Fifth, Ninth, and Eleventh Circuits.  The raw numbers are striking, even without controlling for the total number of opinions.  Opinions from the Sixth Circuit cited over ten times more Third and Second Circuit opinions as those from the Fourth, Fifth, Ninth, or Eleventh Circuits.  This represents a significant change—intentionally or not, judges on the Sixth Circuit avoid citing those four circuits far more than they did a decade ago. And the judges are citing their “preferred” circuits far more often than before.

When you look at the citations per published opinion, the numbers are even more interesting.  Although the Third and Second Circuits publish the least number of decisions per judge, choosing to leave most decisions unpublished, those opinions have an outsized influence.  The D.C. Circuit was not far behind the Second Circuit on this metric, with the Tenth and First Circuits lagging behind.  The other Circuits were cited far less often.  It appears that a published opinion by the Third Circuit is forty times more likely to be cited than a similar published Fifth or Ninth Circuit decision, and eighteen times more than a decision from the Fourth and Eleventh Circuits.  (I had to run those searches many times before I believed the differences were that large.) The Ninth Circuit has long had an unfortunate reputation, but it was surprising how far citations to the Fifth Circuit had dropped off.  

Comparing this data with that from our previous post, the choice to publish more opinions appears to have a very modest effect on the influence wielded by a Circuit.  Indeed, the two circuits that published the least opinions per judge, just seven per year, ended up being the most cited by the Sixth Circuit–the Second and Third Circuits publish less and yet are cited more. (The Sixth Circuit likewise publishes comparatively few decisions compared to its unpublished decisions. We’ll take a look at its influence in other circuits in the future.)

This is not the only way to measure influence, of course. There are many different ways, including surveys of federal judges and citations in Supreme Court opinions.  And, of course, the individual reputation of the authoring judge can be far more important than the circuit.  That said, looking through the decisions, I did not see any particular reason why the Third Circuit is cited so much–the decisions cited were across a wide variety of subjects and for many different reasons. All else being equal, those of us practicing in the Sixth Circuit might heed the direction the circuit itself is taking when choosing which circuits to cite.

The Sixth Circuit Rejects En Banc Review Regarding Remuneration and Causation Under the False Claims Act

By Colter Paulson on Posted in En Banc Watch, Recent Cases

Last week the en banc court rejected a petition in United States ex rel. Martin v. Hathaway, 63 F.4th 1043, 1054 (6th Cir. 2023), a False Claims Act case in which an ophthalmologist and a hospital had an informal agreement to refer patients to each other.  Chief Judge Sutton’s opinion rejected the argument that the referral arrangement violated the False Claims Act, holding that the statute’s definition of “remuneration” requires “payments and other transfers of value” rather than just “any act that may be valuable to another.”  The opinion also rejected the claim on the basis that the Act requires “but-for” causation, rejecting the Government’s position and that of the Third Circuit, which held that a plaintiff does not need to prove that referrals “actually caused” someone to choose a particular healthcare provider, but that a “link” between the referrals and choice was sufficient.  See United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 98 (3d Cir. 2018).  Judge Mathis’ short concurrence noted that the court didn’t need to decide the “remuneration” issue because of its decision on causation.  

This concurrence raises an interesting question about whether the causation or remuneration part of the opinion is dicta—both issues created new law in the circuit, but only one holding was necessary to decide the appeal.  In Brawner v. Scott Cnty., Tennessee, 14 F.4th 585, 604 (6th Cir. 2021), Judge Readler’s concurrence notes that the resolution of an issue creates “at most, non-binding dicta” when it is unnecessary to the outcome.  That makes good sense in cases like Brawner because when, as the concurrence explains, “a party can prevail under both a higher standard and a lower standard, “selecting one standard or the other would ‘not [be] necessary to the determination of the issue on appeal.’”  Since neither issue in Martin was technically necessary to the decision, should both causation and remuneration issues be treated as dicta?  Despite not-infrequent concurrences like those from Judge Mathis, gently chiding the majority for deciding issues unnecessarily, that’s not a winning argument for a litigant in most circumstances.  As my colleague Ben Glassman rightly points out, the longstanding rule is “where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.” Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949).

The application of this rule gets murky when, as often happens, a panel notes that an issue might be unnecessary to decide but gives their opinion anyway to assist the parties on remand, to provide a much-needed clarification, or for other salutary reasons.

The Three Circuits That Publish Far More Opinions Than Any Others—And How The Sixth Circuit Stacks Up

By Colter Paulson on Posted in News and Analysis

The latest statistics on unpublished opinions show an important trend between the circuits.  Across all circuits, 86% of written opinions are unpublished.  That means they are not precedential, so they do not create circuit law.  And most of those unpublished opinions, 69% of them in 2022, were also unsigned.  The Sixth Circuit mirrors the general trend.  In 2022, 89% of its opinions were unpublished, and 54% were both unsigned and unpublished. 

But three circuits, the First, Seventh, and Eighth, buck this trend by publishing a far higher percentage of their opinions.  The Seventh Circuit, with 16 judges, publishes more decisions than the combined Second (29 judges) and Third Circuits (24 judges).  The judges on the First, Seventh and Eighth Circuits publish about 30 decisions each year, while the rest of the circuits average about 10 decisions per year.  On a per judge basis, each of three circuits issue four times more precedential opinions than the Second and Third Circuits, and three times more than most other circuits (including the Sixth Circuit).  Three observations come to mind from this disparity between circuits. 

First, in general, binding precedent is a good thing for people and businesses.  Finding law that squarely address the question at issue, or a case with similar-enough facts to make comparisons, saves everyone time and money.  It will often resolve a dispute before it develops into litigation, narrow a discovery dispute, or enable parties to settle.  In the same way, a split between district courts or between panels in a circuit encourages disputes by convincing each side they have a winning argument.  Having a settled answer reduces costs and uncertainty for businesses and also allows victims to achieve redress more quickly.  I could not find any studies on the subject, but there must be economic and social value for each precedential opinion (on substantive issues) by reducing disputes and encouraging investment. 

Second, judges and circuits that choose to publish more often might wield an outsize influence on the development federal law.  Finding binding precedent is often difficult, and both litigants and courts often need to look outside the circuit to find a close case.  As a result, cases from those circuits may be cited more often because they are listed as published, to the detriment of decisions from other circuits that may be equally persuasive but were listed as unpublished.  That said, a circuit or judge’s reputation and the type of cases that it decides likely have a larger effect their influence than the sheer number of published cases they create.  Spending more time per published opinion might also result in higher-quality opinions.

Third, the difference between the circuits highlights the importance of each circuit’s culture and unwritten rules.  Having clerked on the Third Circuit, I was not surprised to find that the circuit had a low (in fact, the lowest) number of published opinions per judge.  The circuit, as a whole, values restraint and moderation and, more specifically, encourages careful consideration before deciding whether to publish an opinion.  While choosing to publish is an individual decision, there is a fair amount of peer-pressure to adhere to the status quo in any circuit, as judges are well aware which of their colleagues chooses to publish more often than the norm. 

Sixth Circuit Invalidates Application of Nashville’s Sidewalk Ordinance Under The Takings Clause

By Colter Paulson on Posted in Uncategorized

In Knight v. Metro. Gov’t of Nashville and Davidson County (No. 21-6179), the Sixth Circuit decided a longstanding question about the standard that applies to conditions imposed by a legislature on those applying for building permits.  The issue is common enough:  a city wants more sidewalks to improve safety, health, and traffic.  So the city requires landowners to add sidewalks to their properties as a condition of issuing building permits.  Nashville’s ordinance requires to grant an easement and build a sidewalk or to pay a fee to build sidewalks elsewhere in the city.  The question in Knight was whether this permit condition should be judged under the unconstitutional conditions test in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) or the deferential balancing test used for zoning restrictions under Penn Central Trans. v. NYC, 438 U.S. 104 (1978).  State courts have long been divided on whether Nollan is limited to the discretionary decisions of zoning administrators, or whether it also applies to municipal legislation like Nashville’s rule.

Writing for the panel, Judge Murphy’s opinion reviews the history of the Takings Clause and Supreme Court decisions on unconstitutional conditions, and concludes that Nollan applies and that Nashville’s ordinance violates the Takings Clause by “forcing a few people to bear the full cost of public programs that the public as a whole should pay for.”  The ordinance lacks the “nexus” and “rough proportionality” between the imposed condition and the social costs of the new construction.  Extending existing sidewalks would be permissible, the court explains, but Nashville cannot force landowners to build “sidewalks to nowhere” or “pay for sidewalks miles away” without compensation.  After saying so, however, the court says it has not actually decided the issue because Nashville had waived all arguments regarding Nollan by focusing exclusively on the Penn Central test.  Though the panel avoids declaring Nashville’s ordinance unconstitutional, its opinion gives important guidance for cities imposing conditions on building permits across the Sixth Circuit—and for landowners that challenge those ordinances.

Virtues of restraint in federal appellate brief writing

By Benjamin Glassman on Posted in News and Analysis

Nearly a decade ago, in an opinion by Judge Kethledge, the Sixth Circuit set forth “good reasons not to call an opponent’s argument ‘ridiculous.’” Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584 (6th Cir. 2013). These included “civility; the near-certainty that overstatement will only push the reader away …; and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusion.’” Id. at 585.

The advice merits repetition and elaboration. Too often appellate advocates succumb to the temptation (or just habit) of using extreme language, impugning the motives of their opponents, or mocking. In my view, not only does this style disserve the legal system, but it is also ineffective advocacy—for the reasons above and more.

 Calling an opponent’s argument “ridiculous” (or “ludicrous” or “absurd,” both of which I’ve seen many times) is one variation on a rhetorical theme. Another is impugning the motives of one’s opponent. Common examples of that are labeling an opponent’s argument “disingenuous” and ascribing a malign intentionality to what one side views as the other’s avoidance or misunderstanding of an argument. See, e.g., Big Dipper Entertainment, LLC v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). Perhaps less egregious—but, I think, on the rise—are snide, informal characterizations of the other side or its arguments: the snarky brief.

 There are plenty of incentives for this style. Among them is the desire of a client to see its advocate striking hard blows, or of the advocate to demonstrate to a client that he or she is striking hard blows. Harsh or mocking language is an easy way to do that, especially because one can see it even if one isn’t deep in the weeds of the argument. In fairness, appellate briefs come late in the life of any dispute, and litigants may well be legitimately frustrated by one another by that time. Increasingly, moreover, there is an aspect of our culture that seems to prize “fighting” for its own sake. Federal judicial opinions themselves are far less free of snark than they were ten years ago.

 The Bennett opinion gave two practical reasons for avoiding this: readers will be pushed away and it’s better to let the court reach its own conclusion. Both of these points concern the judicial reader of the brief. One could find the style unprofessional. It might distract from the argument being made. Or what sounds “aggressive” or “snappy” to a writer and his or her client might sound desperate or flip to a neutral reader who comes to a long-running dispute for the first time.

 I would add a third practical reason: extreme, mocking, or disparaging language tends to work as an analytical crutch. This one has to do with the writer, not the reader. Actually explaining why an opposing argument is wrong—step by step, so that your conclusion is inescapable—can be very challenging. In my experience, a brief writer who resorts to name calling usually does so as a substitute for the hard work of demonstration. So too with impugning motives. Asserting that a contrary argument is disingenuous may well be easier than grappling with how such an argument might work. And understanding how the best form of an argument could work is a prerequisite for generating an effective rebuttal. (I suspect this is why the most insulting briefs are often wrong on the law. See, e.g., Bearden v. Ballard Health, 967 F.3d 513 (6th Cir. 2020).) In short, the discipline to refrain from disparaging an opponent or its arguments will produce a brief that is stronger on the merits.

 Sometimes lawyers will protest that judges do the very things I’m arguing against. That seems increasingly true, unfortunately. But it’s also irrelevant to good brief writing because judges are writing to decide, not to persuade. They don’t necessarily have to worry about turning a reader off or reducing the strength of their reasoning. (They should worry about these things anyway, if they want to do a good job!)

  The other reason to avoid disparaging an opponent or its arguments is civility, and that applies equally to advocates and to judges. Not only does civility help preserve the professionalism of legal practice, but it supports the design of the American legal system itself. The ideal of our system is that cases are decided on the facts and the law, not on the identity of the party or the advocate. To the extent that litigation is about things other than the facts and the law, that undermines the integrity of the system, at least in some small way.

 Practically and professionally, therefore, rhetorical restraint is the best approach to writing briefs in federal appellate court.

How Long Does The Sixth Circuit Take To Resolve Appeals?

By Colter Paulson on Posted in News and Analysis

The Sixth Circuit has been slowly moving up the rankings for the time it takes to decide an appeal.  A decade ago, the Sixth and Ninth Circuits took the longest time to each a decision.  But while the Ninth Circuit remains slow (at 13.2 months), the latest statistics Sixth Circuit is now the third-fastest circuit, averaging 8.5 months between the notice of appeal and resolution.  The only faster circuits are the Fourth Circuit at 7.9 months, and the Eighth Circuit, which decides cases in just 4.6 months. 

Note, though, that those numbers can be misleading.  They include appeals that are dismissed lack of jurisdiction, on procedural niceties, and for lack of prosecution.  It also includes cases that do not go to oral argument.  For example, while the 8th Circuit’s average for all cases in 4.6 months, the circuit also averages 4.5 months between briefing and oral argument, and then another 3.9 months from oral argument to a decision.  As a result, while the Eighth Circuit is extremely effective in disposing of simple appeals, it actually takes longer to decide complicated appeals than does the Sixth Circuit.  If you have a complex commercial, personal injury, or constitutional appeal, our experience in the Sixth Circuit is that the time for the appeal will often be about 16 or 17 months. That accounts for ordering transcripts, extensions for briefs, oral argument, and the wait for a decision.  

The Sixth Circuits Rejects The “Juridical Link” Test For Class Actions

By Colter Paulson on Posted in Case Updates

In Fox v. Saginaw County (No. 22-1265/1272), the Sixth Circuit rejected a class action where multiple defendants have identical policies, but the named plaintiff was only injured by one defendant.  Until recently, Michigan law permitted counties to obtain complete ownership of a property during a tax foreclosure, even if the value of the property far exceeds the taxes owed.  So enterprising attorneys filed a class action against twenty-seven Michigan counties under the auspices of the “juridical link” doctrine, but only presented one named plaintiff—who had only been injured by one county.

Don’t feel bad if you’ve never heard of this doctrine.  Proposed (but not applied) by the Ninth Circuit in the early 1970s, it allows class representative to sue multiple defendants, regardless of any link to the named plaintiff, if the defendants’ conduct was “linked” to the same contract or state law.  Its high point was Payton v. County of Kane, 308 F.3d 673, 678–80 (7th Cir. 2002), which allowed plaintiffs injured by two counties to sue nineteen counties because each had the same practices.  The key to the Seventh Circuit’s decision was to decide class certification first, and then look at standing—because certification will provide class members that have been injured by the other defendants.  But the doctrine was criticized more than applied, and no other circuit courts have adopted it.  The Second Circuit explained the chief problem with the doctrine, asking “why a plaintiff’s injury resulting from the conduct of one defendant should have any bearing on her Article III standing to sue other defendants, even if they engaged in similar conduct that injured other parties.”  Mahon v. Ticor Title Ins., 683 F.3d 59, 65 (2d Cir. 2012).

Writing for a unanimous panel, Judge Murphy’s opinion tries to put the doctrine down for good.  It explains that Article III’s “case or controversy” clause requires class representatives must allege their own case against a defendant before they can seek to represent a class against that defendant.  It also notes that the Supreme Court always applies standing at the outset of litigation, and not after class certification.  The opinion also has strong words for the plaintiffs’ argument that practicality and efficiency should trump the constitution in this instance.  Interestingly, it also takes an originalist look to the doctrine.  Analyzing the “lengthy pedigree” of the class action “in English equity,” the opinion concludes that representative actions from before the Founding did not allow suits against defendants that did not injure the plaintiff.  The panel thus decides that the “juridical link” doctrine is unconstitutional.

Finally, the opinion offers “a few observations to help guide any renewed certification proceedings,” casting some doubt on the plaintiff’s ability to meet Rule 23’s requirements at all.  Article III traditionalists might say that a panel offering detailed advice about an issue that is not necessary to the decision seems like an advisory opinion.  But, as a practical matter, that kind of advice will often narrow the issues and save many pages of briefing or large discovery costs.  Unlike the juridical link doctrine, dicta has a long pedigree in our tradition.

Sixth Circuit Limits Anti-Kickback Claims Brought Under False Claims Act

By Squire Patton Boggs on Posted in News and Analysis, Recent Cases

Our colleagues at the Global Investigations & Compliance Review Blog have written about an important decision the Sixth Circuit issued last week.  In its opinion, the Court limited the scope of Anti-Kickback claims under the False Claims Act.  You can read more about the decision here. 

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