En Banc Watch

Subscribe to En Banc Watch RSS Feed

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


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

Will the Court Review Recent Daubert Decision En Banc?

Counsel for plaintiffs in the Tamraz v. Lincoln Electric Company (pdf) has filed a petition for en banc review of the Court’s recent reversal of his $20.5 million verdict.  In their petition, the plaintiffs claim that the majority (1) did not properly apply an abuse of discretion standard to the trial judge’s decision to admit the expert testimony at issue, … Continue Reading

En Banc Watch: Wyeth Asks for Rehearing En Banc on the Sixth Circuit’s Preemption Decision

As we reported earlier, Wyeth v. Wimbush was one of the first cases interpreting the Supreme Court’s decision in Wyeth v. Levine, and the first to extend Levine beyond failure to warn claims.  Wyeth has now filed an en banc petition (pdf) challenging that decision.   Wyeth argues that the claim that it was negligent during the … Continue Reading

Indirect Injury Not Enough to Support Subprime Mortgage Public Nuisance Claim

The Sixth Circuit has affirmed dismissal of a public nuisance case brought by the City of Cleveland against various companies that financed subprime mortgages in pdf-City of Cleveland v. Ameriquest Mortgage Securities, Case No. 09-3608 (July 27, 2010). Given the recent increase of lawsuits against entities who are farther removed from the plaintiff’s ultimate injury … Continue Reading