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No Valentine for “Very Busy” Cardiologist Convicted of Fraud

After examining the body of evidence presented during trial, the Sixth Circuit refused to prescribe a new healthcare-fraud trial for Dr. Anis Chalhoub. A jury convicted the London (Ky.) cardiologist under 18 U.S.C. § 1347 for billing Medicare and other insurers for unnecessarily implanted pacemakers.  Although “some of the government’s tactics here leave something to … Continue Reading

The Learned Sixth: “Run, Fun & Gun”

And now for something completely different. If you’re traveling for the New Year’s holiday (or perhaps resting or exercising after the last one?), consider a Learned Sixth podcast for the road: SCOTUS 101’s  interview with Sixth Circuit Judge Amul Thapar. The episode, appropriately titled Guns and Gifts, covers both the recent Supreme Court Second Amendment/mootness … Continue Reading

Movant Beware: No right of action under HIPAA, and no class-cert absent notice      

The Sixth Circuit has joined other circuits in unanimously holding that HIPAA creates no private right of action. That was the easy part. The panel divided 2-1 in ruling that a Tennessee statute likewise provides no remedy for patients allegedly overcharged by Ciox, a medical-records company. But Faber v. Ciox Health wasn’t a complete blowout: … Continue Reading

The Learned Sixth: Kethledge, Hayek, and “executive activism”

Perhaps no Circuit has featured as robust and sustained a debate about administrative deference as the “Learned Sixth.” This month Judge Raymond Kethledge added his voice to that conversation—though not in a judicial opinion. Instead, Professor Kethledge donned his University of Michigan hat (helmet?) and delivered the 15th Annual Hayek Lecture at the NYU Classical Liberal Institute. Past … Continue Reading

Opioid Update: “Negotiation Class” Under Review

On Friday, Nov. 8, a Sixth Circuit panel (Guy, Griffin, and Kethledge) granted interlocutory appeals of drug manufacturers and distributors embroiled in the Northern District of Ohio opioid MDL. The appeals, brought under Federal Rule of Civil Procedure 23(f), oppose the district court’s certification of the novel “Negotiation Class.” Under the proposed procedure, any class … Continue Reading

Sixth Circuit certifies Pennsylvania security-screening comp question

Several suits by Amazon workers seeking pay for time spent in security screening have been consolidated in a multidistrict litigation in the Western District of Kentucky. In one of the putative state-law class actions, Pennsylvania-based workers argue that under the Pennsylvania Minimum Wage Act, Amazon owes them for the several minutes per shift they spend … Continue Reading

Opioid Update: Bellwether Settlement on Eve of Trial

On the eve of trial Monday morning, plaintiffs Summit and Cuyahoga Counties struck a deal worth $260 million. This avoided the first bellwether trial in the opioid multidistrict litigation before Judge Polster. The settlement extinguishes the counties’ claims against AmerisourceBergen, Teva, Cardinal Health, and McKesson. Walgreen’s did not settle, but its trial is pushed off … Continue Reading

Opioid Update: Sixth Circuit Won’t Halt Bellwether Trial (and more)

Today the Sixth Circuit issued much-anticipated rulings rejecting bids by Ohio and the industry defendants to halt the upcoming opioid MDL bellwether trial. And as noted below, in other venues the opioid litigation has seen recent notable action from another key state plaintiff and Judge Polster. Sixth Circuit denies “drastic and extraordinary” mandamus relief – … Continue Reading

Opioid Update: More Irons in the Fire

The Sixth Circuit activity continues to escalate as the MDL bellwether trial date approaches. In just the last week, since the Court of Appeals’ rare order requesting a response to Ohio’s mandamus petition, we’ve seen: Judge Polster respond—energetically—to Ohio’s mandamus petition, one day sooner than the deadline provided in the Court of Appeal’s order; Defendant … Continue Reading

Opioid Update: Ohio Cities Now on Both Sides of Negotiation-Class Fight

Six Ohio cities represented by Tom Goldstein filed a petition at the Sixth Circuit Court of Appeals opposing Judge Polster’s certification of the negotiation class in the opioid MDL. The cities’ petition urges the Sixth Circuit to immediately review the certification of the negotiation class now rather than on appeal—lest they risk wasting the time and … Continue Reading

Tenn. Billboard Act Violates First Amendment, Says Sixth Circuit

In a big win for noncommercial outdoor speakers and a loss for LBJ enthusiasts, the Sixth Circuit issued a major First Amendment decision striking down Tennessee’s Billboard Regulation and Control Act. Judge Batchelder’s unanimous opinion (Donald and Cole joining) in Thomas v. Bright held that the law’s on/off-premises distinction represents an unconstitutional content-based abridgment of speech … Continue Reading

Opioid Update: 6th Circuit Orders Mandamus Response from Judge Polster, Bellwether Counties

If anyone doubted the Sixth Circuit was paying close attention to the opioid MDL, that’s been put to rest. Today, in a short order issued by Circuit Clerk Deborah S. Hunt, the Sixth Circuit requested a response to the Ohio AG’s mandamus petition, supported by many states and the U.S. Chamber, seeking to enjoin the … Continue Reading

Sixth Circuit’s Plain-Meaning Approach to Foreign Arbitration Discovery

Parties may now seek discovery from district courts within the Sixth Circuit for use in foreign private arbitrations. In Abdul Latif Jameel Transportation Company v. FedEx, a unanimous panel held that the plain meaning of the phrase “foreign or international tribunal” included non-governmental tribunals. The decision addresses an important foreign-discovery provision that, according to some … Continue Reading

Opioid Update: MDL Defendants Seek Judge Polster DQ

Eight drug retailers, distributors, and pharmacies (but no manufacturers) have asked Judge Dan Aaron Polster to recuse himself from presiding over most of the 2,000 pending opioid lawsuits comprising the MDL. The parties filed the motion to disqualify Judge Polster on Saturday. They claim that the Judge’s comments made during various hearings, interviews, and forums … Continue Reading

Opioid Update: Ohio Asks Sixth Circuit for Mandamus while U.S. Chamber Says Muni Suits by Plaintiffs’ Firms Could Upend Civil Litigation

As we covered in July, the country has its eyes on an Ohio opioid MDL handling more than 2,000 lawsuits brought by more than 1,200 cities, counties, and tribes against drug manufacturers, distributors, and pharmacies. Ohio Attorney General Dave Yost recently filed a mandamus petition at the Sixth Circuit Court of Appeals to enjoin District … Continue Reading

En banc watch: “Death [or at least en banc denial] by distorted originalism”

Like a Sergio Leone scene, the Sixth Circuit issued an explosive en banc denial of CIC Services LLC v. Internal Revenue Service (a case we covered back in June). As he did at the panel stage, Judge Clay defended the application of the Anti-Injunction Act, which here bars CIC Services from challenging the IRS’s categorization … Continue Reading

Sixth Circuit: Bank Fraud Requires … a Bank

A divided Sixth Circuit panel overturned the convictions of two alleged fraudsters because the government failed to prove that they intended to obtain property from a bank (technically, a “financial institution,” under 18 U.S.C. §1344).  Back in the heady 2000s, the defendant homebuilders in the companion cases of U.S. v. Banyan and U.S. v. Puckett … Continue Reading

“Lexis on Steroids”: Corpus Linguistics receives mixed reception at the Sixth Circuit

By Zak Lutz (HLS ’20; Squire Patton Boggs summer associate) and Benjamin Beaton Sixth Circuit judges have taken an interest in “corpus linguistics.” At a recent gathering in northern Kentucky, three Sixth Circuit judges engaged in an impromptu discussion of the interpretive tool. And last week, in Wilson v. Safelite Group, two other Sixth Circuit … Continue Reading

The Learned Sixth: “Another Giant Tortoise”

And now for something completely different. If you’re traveling for the Fourth of July, consider a law-related podcast for the road: Malcolm Gladwell’s two-part treatment of the LSAT. Puzzle Rush and The Tortoise and the Hare kick off season 4 of Revisionist History. A decidedly non-lawyer friend recommended these episodes, which contain some great nuggets … Continue Reading

Last Week at the 6th Circuit: Substantive unreasonableness, maiden voyages, and railroaded state law

No arguments at the court last week, but we received 13 published opinions and 9 unpublished opinions. Plus, as we’ll discuss later this week, one white-hot denial from en banc review that produced four separate opinions. Here’s what you may have missed: A substantively unreasonable sentence – A divided Sixth Circuit panel vacated the sentence … Continue Reading

Supreme Court Rejects Sixth and Eleventh Circuit’s “Discretionary Function” Immunity for TVA

In Thacker v. Tennessee Valley Authority, the Supreme Court held that sovereign immunity does not necessarily shield TVA’s “discretionary functions” from liability.  Justice Kagan’s unanimous opinion reversed the Eleventh Circuit, which had sided with longstanding Sixth Circuit precedent treating many TVA functions as immune from suit. Congress created the Tennessee Valley Authority, a government-owned corporation, … Continue Reading

Reviewing Judge Amul Thapar and Other Sixth Circuit Judges on Supreme Court Shortlist

The Sixth Circuit Court of Appeals features as many as three “short-listers” to replace the retiring Justice Anthony Kennedy on the US Supreme Court: Judges Raymond Kethledge and Joan Larsen of Michigan, and Judge Amul Thapar of Kentucky. All three reportedly interviewed with President Trump last week, and all three are young and prominent enough … Continue Reading

Sixth Circuit Rules on Turbulent Air-Line Merger

In an opinion colored by aviation-themed puns, Judge Thapar, writing for the Sixth Circuit in Flight Options, LLC v. Int’l Bhd. of Teamsters, Local 1108, ordered airlines and pilot unions to arbitrate their long-running dispute. A few years ago, two luxury airlines merged, leading to a spate of litigation. Most recently, the airlines attempted to … Continue Reading

Sixth Circuit Affirms Preliminary Injunction Against the University of Cincinnati

University policies on responding to sexual assault claims have been hotly debated around the country.  The Sixth Circuit recently weighed in on the constitutional dimension of this issue.  Last month, in John Doe v. University of Cincinnati, et al., the Sixth Circuit found a strong likelihood that an accused student’s constitutional due process rights were … Continue Reading
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