Recent Cases

Subscribe to Recent Cases RSS Feed

The High Court stays the OSHA mandate but upholds the CMS mandate

The decision we’ve all been waiting for finally arrived today.  In two separate opinions, the Supreme Court, as appeared likely from oral argument, stayed the OSHA mandate but declined to stay the CMS mandate. For the OSHA mandate, the Court issued a per curiam opinion chiefly holding that the mandate flunked the major questions doctrine … Continue Reading

Analysis Of The Supreme Court’s Oral Argument Yesterday

After listening to the oral arguments at the Supreme Court, we think the Court will likely issue an administrative stay to delay implementation of the first ETS deadline by Monday, January 10.  U.S. Solicitor General Elizabeth Prelogar admitted that such a stay might be appropriate if the Court needed some breathing space (as it clearly … Continue Reading

The OSHA Mandate — Supreme Court Oral Argument Preview

Tomorrow morning (Friday, January 7), the Supreme Court hears oral argument in the OSHA (10 a.m. EST) and CMS (11 a.m. EST) mandate cases.  (You can listen to the arguments live here.)  For the OSHA mandate, one group of petitioners consists of a coalition of twenty-seven States, led by Ohio, and the other consists of … Continue Reading

The Sixth Circuit Deals Another Blow to the Contractor Mandate

As readers of this Blog know, the OSHA vaccine-or-test mandate has occupied much of the Sixth Circuit’s time the past few weeks.  That mandate is now before the Supreme Court, which hears oral argument on the OSHA and CMS mandates tomorrow.  In the meantime, a third pandemic-era mandate—the federal contractor mandate—made its own splash in … Continue Reading

Supreme Options for OSHA’s Vaccine-or-Test Mandate

In this post, we take a look at the options facing the U.S. Supreme Court as it considers the challengers’ various emergency applications for a stay, several of which were filed just hours after the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS this past Friday evening (December 17).  At this point, it … Continue Reading

ETS Developments in the Supreme Court — and more on the Sixth Circuit’s decision dissolving the stay

Before we dive in the panel’s opinions on the stay motion, we should mention that in the Supreme Court proceedings Justice Kavanaugh gave OSHA until December 30 to respond to the various emergency motions to stay enforcement of OSHA’s ETS mandate.  That is the same day that the Supreme Court gave the challengers in the … Continue Reading

Chief Judge Sutton’s En Banc Dissent On The Merits Of OSHA’s Emergency Temporary Standard

We’ve previously discussed the procedural arguments for and against taking the case en banc that Judge Moore and Chief Judge Sutton (briefly) debated in their respective concurrence and dissent.  As we noted in our earlier post, the Court split evenly on the en-banc issue, keeping these cases with the current three-judge panel.  This post reviews … Continue Reading

Sixth Circuit emphasizes the importance of challenging an arbitration agreement’s delegation clause to allow a court to resolve the arbitration agreement’s enforceability.

Who decides whether parties to an arbitration agreement have to arbitrate their dispute?  If there’s a delegation clause, it’ll be the arbitrator—unless a party specifically challenges the delegation clause.   The Sixth Circuit issued a 2-1 decision in In re: StockX Customer Data Security Breach Litigation emphasizing this point and declining to rule on an arbitration … Continue Reading

The Sixth Circuit and OSHA’s Upcoming December 6th Deadline.

Employers across the United States are wondering whether they need to comply with OSHA’s original, rapidly-approaching December 6th and January 4th deadlines.  And while no-one yet knows with 100% certainty, probably including the judges themselves, a few things seem clear from the Sixth Circuit’s approach in this consolidated appeal.  The Circuit has not ordered parties … Continue Reading

Opioid Update: Jury verdict reached against defendant pharmacies in opioid MDL

Yesterday, the first bellwether trial in the opioid multidistrict litigation (MDL) came to a close with a jury verdict in favor the plaintiffs. In this case, Ohio’s Lake and Trumbull counties sued CVS, Giant Eagle, Walgreens, and Walmart, arguing that the pharmacies drove the opioid crises in the counties by oversupplying prescription opioids and were … Continue Reading

OSHA files emergency motion to dissolve the Fifth Circuit’s stay

At 2:28 a.m. this morning, OSHA filed an (overlength) emergency motion to dissolve the Fifth Circuit’s stay of OSHA’s vaccine mandate, taking three distinct positions.  OSHA principally argues, as expected, that it is likely to succeed on the merits because, OSHA reasonably concluded that the standard is necessary to address a grave danger, the Fifth … Continue Reading

The Sixth Circuit and the OSHA Vaccine Mandate

Sometimes federal courts of appeals get to play the lottery. The prize is not millions of dollars, but the chance to adjudicate every challenge to a particular federal agency action filed in federal circuit court.  The Sixth Circuit won that lottery yesterday afternoon.  At issue is OSHA’s highly controversial vaccine mandate. On November 5, 2021, OSHA promulgated … Continue Reading

Decision about a zoning dispute yields insights for both Federal Courts and appellate practice

The Sixth Circuit’s recent decision in Benalcazar v. Genoa Township, — F.3d — (6th Cir. June 10, 2021), provides a nugget in the law of Federal Courts regarding consent decrees. It’s also interesting from an appellate-practice perspective. The case concerned a zoning dispute. Landowners in an Ohio township sought to rezone their rural acreage for … Continue Reading

Sixth Circuit Joins Four Other Circuits in Restricting Plaintiffs’ Standing to Bring Claims under the Fair and Accurate Credit Transactions Act (“FACTA”)

More than a decade ago, Congress attempted to address a novel threat that was then only in its nascent stages: identity theft.  The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) provided consumers with several tools to protect their identity, including the ability to request free annual credit reports from the three major credit … Continue Reading

Invited Error, Erie, and Pleading Standards – What to Make of Smith v. General Motors?

The Sixth Circuit handed down a recent decision, Smith v. General Motors, that, on its face, could be construed as having a wide-reaching impact on the pleading standard for certain product-liability and fraud claims.  But the panel was careful to disclose the larger, admittedly “odd” context of the case, making it difficult to discern just … Continue Reading

Sixth Circuit concludes that the Kentucky Billboard Act violates the First Amendment.

The Kentucky Billboard Act requires a permit for billboards that advertise off-site activities—but no permit is required for on-site billboard advertising. Lion’s Den, an “adult superstore” that sought to advertise to interstate drivers with a billboard on a neighbor’s property, challenged the law as a violation of its rights under the First and Fourteenth Amendments. … Continue Reading

A “Side Note” About Ripeness

The Sixth Circuit recently decided OverDrive Inc. v. Open E-Book Forum, a copyright case with an Article III twist.  Pertinent here, the plaintiff argued that a potential transfer of assets—that might or might not occur in an impermissible way—would (if it occurred in that certain way) “violate the [Copyright] Act in the future.”  That framing … Continue Reading

Assessing the amount in controversy when seeking to vacate an arbitral award

Yesterday’s published decision in Hale v. Morgan Stanley Smith Barney LLC established the law of the circuit on a nifty issue of subject matter jurisdiction in the context of arbitration. Where a plaintiff from one state has initiated arbitration against a defendant from another state, seeking millions, but has then received an arbitral award of … Continue Reading

Is Title IX’s deliberate-indifference standard a question of law for the court to decide? Yes—at least “in an appropriate case,” says the en banc Sixth Circuit.

Continuing an active year for Title IX precedent, the Sixth Circuit issued an en banc decision in Foster v. University of Michigan, which adds further contour to the Circuit’s Title IX “deliberate indifference” jurisprudence. It also implicitly raises—but does not necessarily answer—important questions regarding the appropriate standard of review for such claims. In Foster, a … Continue Reading

Sixth Circuit stays injunction in challenge to Kentucky public health measures that did not exempt religious schools from general prohibition on in-person instruction.

This post arrives thanks to Erica M. Van Heyde, a 2020 graduate of The Ohio State University Mortiz College of Law, who joins Squire Patton Boggs as an associate in 2021.  Like most states, Kentucky is experiencing a surge in COVID-19 cases. Governor Andy Beshear has responded by implementing a number of public health measures aimed … Continue Reading
LexBlog