Archives: News and Analysis

Subscribe to News and Analysis RSS Feed

Sixth Circuit Oral Argument Statistics

In the 12 months ended June 30, 2015, the Sixth Circuit terminated 4,858 cases. Of the total cases terminated, 3,515 were terminated on the merits, meaning that they were terminated either through consolidation with another case, after the submission of the parties’ briefs, or after oral argument. A review of the judicial statistics surrounding the … Continue Reading

The Effect of the Amicus Brief

We have, on multiple occasions, addressed the significance (or insignificance) of the amicus curiae or “friend of the court” brief. Our previous discussion here, here, and here have largely revealed that, while the briefs are submitted in many of the headline-grabbing cases, the effects of the briefs written and submitted by the amici are often … Continue Reading

Tax Code Interpretation Presents an Issue for Congress, Not the Courts

The Sixth Circuit tackled a complex question involving the interpretation and application of Internal Revenue Code Section 1256 as it applies to so-called “major-minor” currency transactions. The term “major-minor” is a reference to the fact that a currency is considered “major” if positions in it are traded through regulated futures contracts and a currency is … Continue Reading

Sixth Circuit Decision in Class Certification Appeals

Because of the significant size of the jury verdicts or, more likely, the settlements of class actions, questions of class certification carry significant weight. However, it is not just monetary consideration that makes class actions so important. One element of aggregate litigation that is most frequently discussed is the due process considerations that need to … Continue Reading

Divided Sixth Circuit Finds Employer Bound by Collective Bargaining Agreements without a Signature

On December 29th, the Sixth Circuit issued a 2-1 decision holding that an employer could be bound by a collective bargaining agreement (“CBA”) even if the employer did not sign the CBA or expressly authorize someone else to sign on the employers behalf. The Court explained that its holding is in line with Sixth Circuit … Continue Reading

Surprising Changes In Reversal Rates In The Sixth Circuit

We have previously looked at the rates at which the Sixth Circuit reverses the various district courts (see here and here), noting that the average and overall reversal rate fluctuates between 16% and 18%.  Our clients are always interested in the reversal rates and we are frequently asked to ballpark the odds of winning a particular … Continue Reading

Daubert in the Sixth Circuit

In February of 2014, we posted an analysis of the Sixth Circuit’s dealings with Daubert claims dating back to 2010. Over that four year period, the Sixth Circuit reversed fives cases on the basis of the district court’s application of Daubert v. Merrell Dow Pharmaceuticals. In four of the five reversed cases, the Sixth Circuit … Continue Reading

Visiting Judges in the Sixth Circuit

On more than one occasion, we have discussed the Sixth Circuits use of visiting judges. Specifically, we have noted the Sixth Circuit’s heavy reliance on visiting judges. While the Sixth Circuit’s use has decreased, the percentage of cases heard by visiting judges continues to exceed almost all other circuit courts. In the review of case … Continue Reading

Sixth Circuit Clarifies Standard for Interlocutory Appeal Under 1292(b)

In Little v. Louisville Gas & Electric Co., decided with a companion case, the Sixth Circuit offered some pointers on discretionary interlocutory review under 28 U.S.C. 1292(b). The district court had declined to dismiss state claims as preempted but independently dismissed most of plaintiffs’ federal claims.  In certifying under 1292(b), the court certified “that portion” … Continue Reading

Sixth Circuit Issues Nationwide Stay Blocking Federal Regulation Over Water and Wetlands

The Sixth Circuit is making national headlines today after ordering a nationwide stay that temporarily will block the so-called Waters of the United States (WOTUS) rule finalized back in May by the Environmental Protection Agency and the U.S. Army Corps of Engineers.  See In re EPA and DOD Final Rule; “Clean Water Rule: Definition of … Continue Reading

Sixth Circuit Revives “Juggalo” First Amendment Lawsuit

In 2011, the National Gang Intelligence Center—part of the FBI—included fans of the band “Insane Clown Posse,” also known as “Juggalos,” in its report on gang activity, describing Juggalos as a “hybrid gang” and claiming that “Juggalo subsets exhibit gang-like behavior and engage in criminal activity and violence.”  Six plaintiffs (four Juggalos and the two … Continue Reading

Foreign Law In the Sixth Circuit

Some trial court judges are reluctant to apply foreign law or to enforce an international forum selection clause, but such decisions generally cannot survive appellate scrutiny.  These decisions are becoming increasingly prevalent and may reflect the recent debate about whether and how American judges should apply to foreign law or defer to foreign proceedings.  The … Continue Reading

Stunning Result: Sixth Circuit Finds No Duty to Warn for Taser

In a divided 2-1 decision, the Sixth Circuit affirmed summary judgment for Taser related to failure to warn claims arising out of the death of an individual who had been tased.  Mitchell v. City of Warren.  Before reaching the merits, the majority opinion, written by Judge Sutton, provides an overview and history of Taser products.  … Continue Reading

Sixth Circuit Follows Six Other Circuits In Upholding Obamacare’s Contraception Mandate Accommodation Against Religious Freedom Challenge

The Affordable Care Act’s contraception mandate is back in the news.  Last Friday, the Sixth Circuit made headlines when it joined six other Circuits in upholding the accommodation scheme for religious non-profits that object to the contraception mandate.  See August 21, 2015 Opinion, Michigan Catholic Conference, et al. v. Burwell, et al. (6th Cir. Case … Continue Reading

As Debate Rages Over Reducing Federal Appellate Brief Limit To 13,000 Words, A Circuit Court Dismisses An Appeal For Failing To Comply With The Current 14,000 Word Limit

The Advisory Committee on Appellate Rules (the federal judiciary’s policymaking  body) has proposed amendments to Rules 5, 21, 27, 28.1, 32, 35, and 40 of the Federal Rules of Appellate Procedure that would reduce the length of various filings in the Circuit Courts.  As we covered back in February, the proposal garnering the most attention … Continue Reading

Sixth Circuit Offers Pointers on Affidavits and Oral Argument

Yesterday, in Ondo v. City of Cleveland, the Sixth Circuit addressed precision in both affidavits and oral argument. The case involved a Section 1983 action arising out of an altercation with police officers. In response to the officers’ summary judgment motion, the plaintiffs submitted affidavits based upon “personal knowledge and belief.” The district court struck … Continue Reading

Circuit Court Warns: Don’t Raise Too Many Issues on Appeal

It’s the appellate lawyer’s eternal challenge:  How many issues to raise on appeal?  Several years ago, Judge Kethledge offered a not-so-gentle reminder to lawyers in the Sixth Circuit about the importance of limiting issues on appeal when he opened an opinion with the following sentence: “When a party comes to us with nine grounds for … Continue Reading

Bankruptcy Mischief: Fraudulent Concealment and Bad Faith Do Not Matter When It Comes To Disallowing Bankruptcy Code Exemptions

Desperate times call for desperate measures.  It is not surprising then that a less than scrupulous debtor might be less than candid when disclosing assets and liabilities to a bankruptcy court.  But what happens if an individual debtor is discovered to have concealed assets – possibly fraudulently or in bad faith – and then seeks … Continue Reading

Are Cases with No Oral Argument More Likely to be Affirmed?

Following up on our recent analysis showing that the Sixth Circuit usually takes slightly longer to reverse than affirm, this post examines whether cases with no oral arguments are more likely to be affirmed. We expected that decisions made without oral argument would be affirmed more often because courts presumably grant oral arguments when judges … Continue Reading
LexBlog