The Sixth Circuit has a longstanding reputation for having lots of dissents and concurrences. We analyzed the last three years of opinions and found that the Sixth and D.C. Circuit have about twice the average number of dissents and concurrences opinions per case than other circuits. Partisan and ideological differences account for some dissents, in … Continue Reading
The Sixth Circuit has announced new standards for collective action lawsuits under the FLSA in Clark v. A&L Homecare and Training Center. There are already many good summaries of this decision around the legal internet, so this recap will be short. The question is how to determine whether other potential plaintiffs are “similarly situated” so … Continue Reading
This post provides the latest statistics for a question we are frequently asked: what is the chance of obtaining a reversal on appeal. Private civil cases see the most reversals of any category at 13.4%, followed by appeals in bankruptcy and civil appeals involving the United States at 12.5%. In other words, the circuit reverses … Continue Reading
About a decade ago, this blog found that Sixth Circuit judges cited the Second, Seventh, and Ninth Circuits more often than any other circuit. When we controlled for the number of opinions, we found that opinions from the First, Seventh, Tenth and D.C. Circuits were three times more likely to be cited than opinions from … Continue Reading
Last week the en banc court rejected a petition in United States ex rel. Martin v. Hathaway, 63 F.4th 1043, 1054 (6th Cir. 2023), a False Claims Act case in which an ophthalmologist and a hospital had an informal agreement to refer patients to each other. Chief Judge Sutton’s opinion rejected the argument that the … Continue Reading
The latest statistics on unpublished opinions show an important trend between the circuits. Across all circuits, 86% of written opinions are unpublished. That means they are not precedential, so they do not create circuit law. And most of those unpublished opinions, 69% of them in 2022, were also unsigned. The Sixth Circuit mirrors the general … Continue Reading
The Supreme Court on Tuesday issued an opinion in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., which reversed the Sixth Circuit’s October 2020 decision finding that DaVita Inc. plausibly asserted a claim against an Ohio hospital’s health plan for unlawfully discriminating against patients with end-stage renal disease by offering low reimbursement rates … Continue Reading
Today, President Biden nominated Columbus, Ohio appellate litigator Rachel Bloomekatz to the Sixth Circuit as part of his eighteenth round of judicial nominees, which would fill the seat vacated by Judge R. Guy Cole Jr. Judge Cole announced in December his intention to take senior status. Rachel Bloomekatz is currently a solo practitioner at Bloomekatz … Continue Reading
With OSHA’s decision to withdraw its ETS in the face of a hostile Supreme Court, and the Court’s 5-4 decision to uphold the CMS mandate, it’s worth taking a closer look at the Sixth Circuit’s decision to stay the contractor mandate. Briefing in the Sixth Circuit on the contractor mandate should be finished around March … 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
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
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
It’s been only three days since the Sixth Circuit won the JPML lottery to consolidate and adjudicate every appeal nationwide challenging OSHA’s vaccine mandate. Yet there have already been interesting developments. Many petitioners in the original Sixth Circuit cases have now moved for initial en banc review—which would bypass panel review entirely and send the … Continue Reading
Yesterday, President Biden nominated Memphis, Tennessee litigator Andre B. Mathis to the Sixth Circuit, filling the seat of Judge Bernice B. Donald, who announced in May that she will assume senior status upon the confirmation of her replacement. Mathis is currently a partner in the Memphis, Tennessee office of the law firm Butler Snow LLP, … 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
We keep up on statistics important to our clients, such as the time it takes to decide appeals, and we were especially interested to see how the pandemic had affected the Sixth Circuit. Our gut feeling was that things might have slowed down a little in more complicated cases, but that the circuit had generally … 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
Prior posts have discussed the comparative rarity of certified questions of state law in the Sixth Circuit (here and here). This post gives practical pointers to improve your odds of success with certified questions both in the Sixth Circuit and in the state courts.… Continue Reading
In our prior post, we noted that the Sixth Circuit seldom grants motions to certify questions of state law. And even though the circuit grants less than 20% of such motions, the questions still have to be accepted by the state supreme court. But the certification process is often a rough road. No recent case … Continue Reading
During October Term 2018 (“OT2018”), the Supreme Court reversed less than two out of every three cases – its lowest reversal rate in three years. The Sixth Circuit fared particularly well (4 affirmances, 3 reversals), joining the Eleventh and D.C. Circuits as the only circuits to post a winning record. Notably, the Court did not … Continue Reading
By Zak Lutz (HLS ’20; Squire Patton Boggs summer associate) and Benjamin Beaton Sixth Circuit judges have taken an interest in “corpus linguistics.” At a recent gathering in northern Kentucky, three Sixth Circuit judges engaged in an impromptu discussion of the interpretive tool. And last week, in Wilson v. Safelite Group, two other Sixth Circuit … Continue Reading
On Wednesday, the Sixth Circuit vacated the convictions of two defendants charged with possession with intent to distribute methamphetamine. Although there was sufficient evidence to support their convictions, the Court held—on plain error review—that certain “remarks made by the prosecutor rose to the level of flagrant misconduct and deprived [defendants] of a fair trial.” Writing … Continue Reading
“How long will my appeal take?” A question clients always ask and lawyers often resist (and which always depend heavily on the individual facts of the case). But the data also shows that the average has continued to decline in the Sixth Circuit. In 2011, the average Sixth Circuit appeal took 15.5 months from the … Continue Reading
Earlier this week, the Sixth Circuit released an interesting opinion addressing the use of representative evidence in “collective actions” brought under the Fair Labor Standards Act. As discussed below, the Court held that uniform testimony from dozens of individual employees can establish liability without the need for statistical evidence. At the same time, the decision … Continue Reading
