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
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
The Sixth Circuit has denied en banc review in the OSHA vaccine mandate cases. The vote was a close one, with eight judges voting in favor of initial hearing en banc. But that’s not enough under the circuit’s rules, which require a majority of the 16 active judges to vote for en banc treatment. As … Continue Reading
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
Over the next week, we expect a flood of amicus briefs opposing and supporting OSHA’s Emergency Temporary Standard. There are already ten such briefs on the main docket, with many more listed amici yet to file, and many more preparing to appear. We expect that many amicus parties will want to weigh in on OSHA’s … Continue Reading
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
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
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
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
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
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
The Sixth Circuit just issued a landmark ruling limiting the availability of Chevron deference to agency interpretations of statutes that can carry criminal sanctions. Our partner Keith Bradley assessed the situation recently in Law360.… Continue Reading
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
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
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
The Sixth Circuit’s recent decision in Watkins v. Healy is an interesting read on its own: Ledura Watkins was released after 42 years in prison for a murder conviction that was overturned with the help of the WMU-Cooley Innocence Project. Watkins has now brought a 42 U.S.C. § 1983 civil rights suit against the alleged … Continue Reading
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
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
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
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. Last week, in Memphis A. Philip Randolph Institute v. Hargett, the Sixth Circuit considered the application of the factors for a stay pending appeal of … Continue Reading
Ohioans have four ways to cast a ballot in this (currently underway) Presidential election: (1) vote in person on election day, (2) vote in person at some point in the four weeks leading up to election day, (3) mail in an absentee ballot; or (4) drop off an absentee ballot at a drop box. Given … Continue Reading
The bar exam, so the saying goes, is like fording a river that is a mile wide but only an inch deep. Cliché though it may be, the analogy serves as a useful reminder that the exam tests candidates largely on settled, black-letter law rather than novel questions typical of law school exams. Most readers, … Continue Reading
The opioid MDL continues to generate significant decisions in the law of civil procedure. Arguably the most significant arrived last week in a much-anticipated ruling, when a divided panel issued a published opinion reversing the district court’s certification of a “negotiation class” in the case. Judge Clay wrote the majority opinion, joined by Judge McKeague, … Continue Reading
The Sixth Circuit has issued a steady stream of Title IX cases in recent months. Of particular note are Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), which deepened a circuit split regarding institutional liability for “deliberate indifference” under Title IX, and Doe v. Oberlin College, 963 F.3d 580 … Continue Reading
