Archives: En Banc Watch

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Pair of Criminal Cases from Sixth Circuit Gather Headlines

Yesterday, a pair of criminal cases emanating from the Sixth Circuit received headlines.  In McQuiggin v. Perkins, the Supreme Court reviewed another habeas case from the Sixth Circuit concerning the actual innocence exception to AEDPA.  Although the Supreme Court vacated and remanded the Sixth Circuit’s decision applying the actual innocence exception to the statute of limitations, … Continue Reading

Beer and Wine Case May Be Headed to the Supreme Court on Dormant Commerce Clause Issues

Recent developments indicate that the last of the Sixth Circuit’s beer and wine cases we reported about last year may be headed for the Supreme Court.  Even if it doesn’t go up on cert, the case is an example that a well-focused petition for rehearing en banc can be an effective tool, even if it doesn’t actually result in … Continue Reading

Sixth Circuit Denies Whirlpool’s En Banc Petition in Front Loading Washer Case

The Sixth Circuit yesterday entered an order denying Whirlpool Corporation’s en banc petition seeking review of a May 4, 2012 panel decision affirming class certification in a multi-district litigation involving alleged design defects leading to mold and mildew in certain front-load washing machines made by Whirlpool and sold to Ohio consumers.  See Opinion, In re … Continue Reading

BREAKING: Sixth Circuit En Banc Court Adopts New Standard For Proving Discrimination Under the ADA, But In A Bold Move Refuses To Adopt The Standard Followed By A Supermajority Of Circuit Courts

Earlier today in its en banc decision in Lewis v. Humboldt Acquisition Corp., No. 09-6381 (PDF), the Sixth Circuit unanimously overruled the standard set forth in its 16 year-old decision in Monette v. Electronic Data Systems Corp., 990 F.3d 1173 (6th Cir. 1996), which required a plaintiff bringing a discrimination claim under the Americans with … Continue Reading

WHIRLPOOL SEEKS EN BANC REVIEW OF PANEL’S DECISION IN WASHING MACHINE LITIGATION

As we previously reported back on May 4, 2012, a three-judge panel of the Sixth Circuit, relying heavily on the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451 (2011), affirmed class certification in a multi-district litigation involving alleged design defects leading to mold and mildew in certain front-load washing machines … Continue Reading

Sixth Circuit En Banc Court Currently Addressing Affirmative Action in College Admissions

The Sixth Circuit is currently rehearing en banc the constitutionality of Michigan’s Proposal 2, which prohibits Michigan’s public colleges and universities from granting “preferential treatment to . . . any individual or group on the basis of race, sex, color, ethnicity, or national origin.”  Back in July of 2011, a divided panel of the Sixth Circuit ruled … Continue Reading

En Banc Briefing Complete, Oral Argument Approaches in Michigan Affirmative Action Appeal

This post is the Sixth Circuit Appellate Blog’s latest update and analysis in a series that has been tracking developments in the ongoing, blockbuster appeal involving Michigan Proposal 2. Last summer, a divided panel of the Sixth Circuit struck down as unconstitutional Proposal 2, which prohibited Michigan’s public colleges and universities from granting “preferential treatment … Continue Reading

Sixth Circuit Moves Closer to Decision on Proposal 2 En Banc Petition

As this blog has previously reported, in late July Michigan’s attorney general filed a petition (PDF) for rehearing en banc in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111).  In that case, … Continue Reading

En Banc Petition Filed in Michigan Affirmative Action Case

As anticipated, Michigan’s attorney general today filed a petition (PDF) for rehearing en banc in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111).  As previously reported by this blog, on July 1, … Continue Reading

Sixth Circuit Facing Difficult En Banc Questions

Recently, the Sixth Circuit has handed down decisions in two of the most high-profile cases currently pending in the federal appellate courts.  First, as we previously reported, the Sixth Circuit upheld the federal health care statute in the wake of a number of constitutional challenges.  Second, a few days later, the Sixth Circuit struck down … Continue Reading

Sixth Circuit’s June 29 Decision Upholding the Health Care Statute is Generating Massive Commentary

In our BREAKING NEWS item on Wednesday, we were one of the first legal blogs to report on and analyze the Sixth Circuit’s high profile opinion in Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388), in which a divided panel upheld the constitutionality of the mandate requiring individuals to purchase … Continue Reading

Declining Rehearing, Sixth Circuit Lets $101 Million Verdict Stand

As the Sixth Circuit Appellate Blog previously reported, last month a panel of the Sixth Circuit affirmed a $101 million jury award based on a finding of tortious interference with a prospective advantage under Kentucky law. Defendant-appellant HCP, Inc. sought rehearing and rehearing en banc, arguing that the panel had incorrectly applied the law as to … Continue Reading

Just As We Predicted Back in March, the Sixth Circuit Grants Rehearing En Banc in the Lewis Case Involving Discrimination Claims Under the ADA

Back in March, when we reported on the Sixth Circuit’s decision in Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF), we noted that Lewis was “one of those rare candidates for rehearing en banc.”  Our predictive powers proved accurate yesterday when the Sixth Circuit voted for a rehearing en banc in the Lewis … Continue Reading

Rehearing Sought on Ruling Affirming $101M Jury Verdict

Following the Sixth Circuit’s ruling upholding a $101 million jury verdict last month in Ventas Inc. v. HCP, Inc. (6th Cir. Case Nos. 09-6385/6413) (PDF), a petition for rehearing and rehearing en banc has been filed.  In its petition for rehearing (PDF), defendant-appellant HCP, Inc. (“HCP”) raises three issues — one for panel rehearing and … Continue Reading

Update on Abercrombie & Fitch Case On The Independence of Special Litigation Committees

  The Sixth Circuit has denied Abercrombie & Fitch’s petition for rehearing and en banc review of its decision in Booth Family Trust v. Jeffries (09-3443) that the voluntary recusal of a member of a special litigation committee served as an effective admission that he was not independent.  None of the active judges on the Court … Continue Reading

En Banc Review Sought in Abercrombie & Fitch Case Involving Special Litigation Committees

Earlier this month, this Blog reported the Sixth Circuit’s decision in Booth Family Trust v. Jeffries (6th Cir. 09-3443) [PDF], which involved a shareholder derivative action against certain officers and directors of Abercrombie & Fitch Co.  In Booth Family Trust, a divided panel ruled that the decision by a member of a special litigation committee … Continue Reading

En Banc Watch: The Sixth Circuit Will Test The Boundaries Between Voluntary Confessions And Police Strategies To Evade Miranda

The Sixth Circuit recently accepted Dixon v. Houk for en banc review.  In that case, the police obtained a confession after five hours of interrogations without Miranda warnings, and then gave the Miranda warnings before obtaining a taped confession.  The panel opinion, written by Judge Merritt, held that Missouri v. Seibert, 542 U.S. 600 (2004), … Continue Reading

Sixth Circuit Declines to Adopt Rule Followed in at least 10 other circuits under the ADA

The Sixth Circuit yesterday declined to adopt the rule followed in a supermajority of Circuits for bringing a discrimination claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.  See Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF).  In at least ten other Circuits, a plaintiff … Continue Reading

Rare En Banc Hearing Granted in Organized Labor Grievance Appeal

On December 7, 2010, the Sixth Circuit granted a rare en banc hearing in Chapman v. United Auto Workers Local 1005 (6th Cir., Case No. 10-3616) (PDF), an appeal involving the administrative relief exhaustion requirement in labor grievances. En banc hearing was granted under Rule 35(a)(1) of the Federal Rules of Appellate Procedure, which permits … Continue Reading

EN BANC WATCH: COURT DENIES REHEARING EN BANC ON PREEMPTION DECISION

As reported previously, the Sixth Circuit in Wimbush v. Wyeth become the first circuit to weigh in on the scope of the Supreme Court’s recent decision on federal preemption (Wyeth v. Levine ), by holding that FDA approval does not preempt state law negligence claims.  Wyeth petitioned for rehearing en banc, but on October 14th the … Continue Reading
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