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Cloud Storage Trips Up Spyware Software Service Under The Wiretap Act

In Luis v. Zang (No. 14-3601), the Sixth Circuit held that a maker of monitoring software was potentially liable under federal and state Wiretap Acts—not for selling the software, but for saving the intercepted communications on its own servers.  The plaintiff claimed that the defendant Awareness Technologies, Inc. markets the WebWatcher brand as allowing customers … Continue Reading

Objections To Criminal Presentence Report Protected Against Discovery In Class Action

In Cyphert v. Scotts Miracle-Gro Co. (In re: Morning Song Bird Food Litig.), No. 15-3943, the Sixth Circuit imposed a high standard on class action plaintiffs seeking to use two sets of objections to a presentence report (PSR) in a criminal case against the corporate defendant.  The plaintiffs argued that the objections, which had been … Continue Reading

Divided En Banc Court Overrules FOIA Precedent

In 1996, in Detroit Free Press v. Dept. of Justice, 73 F.3d 93 (6th Cir. 1996) (“Free Press I”), the Sixth Circuit held that the Freedom of Information Act required the release of booking photos for criminal defendants who appeared in trial. In March, twenty-two years later, the court in Detroit Free Press v. Dept. … Continue Reading

Sixth Circuit Again Addresses Forum Non Conveniens

In Hefferan v. Ethicon Endo-Surgery, Inc., the Sixth Circuit upheld the Southern District of Ohio’s dismissal for forum non conveniens. This case marks the Court’s second decision of this kind in just over a week, having affirmed the Northern District of Ohio’s dismissal for forum non conveniens in Solari v. Goodyear Tire & Rubber Co., … Continue Reading

Sixth Circuit Upholds Forum Non Conveniens Dismissal

In Solari v. Goodyear Tire & Rubber Co., three French plaintiffs living in France brought suit against Goodyear U.S. in the Northern District of Ohio. The plaintiffs based the potential class action suit on medical conditions and the risk of future medical conditions caused by exposure to toxic substances while working at a Goodyear France … Continue Reading

SIXTH CIRCUIT NIXES PROVIDER ERISA SUIT

In Brown v. Blue Cross Blue Shield of Tennessee, Inc., a healthcare provider brought suit against Blue Cross Blue Shield based on ERISA and assignments of benefits that the provider obtained from participants in the relevant plans.  Although the district court dismissed the action for lack of subject matter jurisdiction because the provider lacked standing … Continue Reading

The Sixth Circuit Likes to Play Logic Games

Yesterday, the Sixth Circuit released a decision that will surely strike close to the hearts of every attorney and law school student. In Binno v. American Bar Association, the court found that the ABA was not the responsible party for the plaintiff’s harm, which allegedly resulted from his experience with the LSAT. More specifically, Angelo … Continue Reading

SIXTH CIRCUIT FLIPS CLASS SETTLEMENT ORDER

One of the frequent givens in current civil litigation is a protective order that shields material produced in discovery.  Those orders often require the filing of certain material under seal.  The tension between public interest in open access to records and business interests in confidentiality/trade secrets came to a head in yesterday’s opinion, Shane Group, … Continue Reading

SCOTUS: Dismissal of Claim Under FTCA “Exceptions” Does Not Bar Second Suit

The Supreme Court unanimously affirmed the Sixth Circuit yesterday in Simmons v. Himmelreich, holding that the Federal Tort Claims Act’s “judgment bar” provision does not apply to claims that are dismissed under the “Exceptions” provision of the FTCA.  The FTCA permits plaintiffs to sue the federal government for certain torts committed by government employees.  But … Continue Reading

Sixth Circuit Rejects “Categorical” Approach To Class Action Settlements and Class Counsel Fees

Last week in Gascho, et al. v. Global Fitness Holdings, LLC, the Sixth Circuit addressed a laundry list of objections to a class action settlement on behalf of gym members who had been allegedly incorrectly charged certain fees.  The settlement made ~$15.5 million available to class members and awarded fees of $2.39 million to class … Continue Reading

Sixth Circuit Reinstates $15.6 Million Damage Award

On Friday, the Sixth Circuit reinstated a $15.6 million jury verdict awarded to Cranpark, Inc. in its promissory estoppel suit against Rogers Group, Inc. (“RGI”). In 1998, representatives from RGI and James Sabatine, the owner of Hardrives Paving and Construction, Inc. (“Hardrives”), for whom Cranpark is the successor-in-interest, met to discuss a possible joint venture … Continue Reading

Sixth Circuit Rules on $200,000 Back Pay Issue

On Wednesday, the Sixth Circuit issued its decision in Szeinbach v. The Ohio State University. The case centered on Szeinbach’s claim that she was discriminated against while she was employed as a professor with the Ohio State University College of Pharmacy. Szeinbach alleged that she was the victim of discrimination and retaliation stemming from her … Continue Reading

Bank’s Public Disclosure of Customer Data Didn’t Violate Right to Financial Privacy Act

The Right to Financial Privacy Act prohibits banks from “provid[ing] to any Government authority access to . . . or the information contained in” customer financial records, except under certain specified conditions, and grants a private right of action to customers to enforce the prohibition.  Last week, in Brackfield  & Assocs. P’ship, et al. v. … Continue Reading

Sixth Circuit Tackles Two Questions of First Impression Under CAFA

On Wednesday, the Sixth Circuit decided two issues of first impression, both of which related to the Class Action Fairness Act (“CAFA”). Graiser v. Visionworks of America, Inc., the plaintiff alleged that the company’s “buy one get one free” advertisement was misleading. The plaintiff waited until six months after its complaint to tell the defendant … Continue Reading

Supreme Court Affirmation Leaves More Questions than Answers

Two weeks ago, the jurisprudential ramifications of Justice Scalia’s passing were felt. The incomplete Court decided Hawkins v. Community Bank of Raymore, a case from the Eighth Circuit questioning whether a guarantor is an “applicant” as defined in the Equal Credit Opportunity Act. The Eighth Circuit decision in Hawkins, which held that a guarantor is … Continue Reading

Sixth Circuit Denies IRS Mandamus Petition

On Tuesday, in the most recent clash between the IRS and the tea-party groups that were allegedly targeted for enhanced scrutiny by the IRS, the Sixth Circuit denied the IRS’s writ of mandamus. In In re United States of America, the Sixth Circuit ordered that the IRS comply with the district court’s discovery orders in … Continue Reading

The Sixth Circuit Finds That Section One Of The Sherman Act Applies To An Integrated Hospital System

In The Medical Center at Elizabeth Place, LLC v. Atrium Health System, the Sixth Circuit reversed a well-known district court decision that a joint venture between separately owned hospitals was incapable of conspiring under Section One of the Sherman Act.  The Court found that a group of hospitals acting under a Joint Operating Agreement (JOA) … Continue Reading

A “Single, Company-wide Time-shaving Policy” Can Consist Of “Multiple Methods” In FLSA Collective Action

Last week, in Monroe v. FTS, USA, a divided panel of the Sixth Circuit affirmed the certification of a class of workers as sufficiently “similarly situated” under the Fair Labor Standards Act, holding that they were subject to “a single, company-wide time-shaving policy,” even though time was shaved via three separate methods. Some managers simply altered … Continue Reading

Sixth Circuit Tackles Administrative Exemption under the FLSA

The FLSA provides that administrative employees are exempt from overtime pay. The FLSA described an administrative employee as one who 1) is paid a salary of at least $455 per week; 2) primarily performs work related to management; and 3) performs duties which primarily require the exercise of discretion and independent judgement. In Lutz v. … Continue Reading
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