Tag Archives: sixth circuit

Sixth Circuit Grants P.G. Sittenfeld Release from Prison Pending Appeal

Today, the Sixth Circuit took the relatively rare step of granting a criminal defendant’s release from prison before deciding the merits of his case.  That followed last week’s oral argument in the high-profile criminal appeal of Alexander “P.G.” Sittenfeld, the former Cincinnati City Councilperson.  Sittenfeld’s counsel closed his rebuttal argument by renewing his request for … Continue Reading

The Ohio Supreme Court Updates its Writing Manual

Last week, the Ohio Supreme Court published a new and improved writing manual.  The Third Edition is “a comprehensive guide . . . designed to improve the readability of opinions issued by, and briefs filed in,” Ohio’s courts.  The unquestionable headline is that the new manual abandons the cumbersome triple-parallel-citation format of old in favor of citing … Continue Reading

While We Are Waiting On Chevron

The Supreme Court issued three opinions today, including an important decision on whether omissions in SEC filings are actionable, and a decision that the Takings Clause does not distinguish between legislative and administrative land-use permit conditions (and that relies on Judge Murphy’s recent Takings Clause decision). But no decision yet on the highly-anticipated blockbuster cases … Continue Reading

Justice Sotomayor References Rarely Used Procedure: Circuit Certification to U.S. Supreme Court

Four years ago, the Supreme Court declined a federal habeas petitioner’s request to review the Sixth Circuit’s decision in Avery v. United States, 770 F. App’x 741.  Justice Kavanaugh, the Sixth Circuit’s assigned circuit justice, attached a “statement” to the Supreme Court’s cert. denial to highlight a circuit split that Avery implicated and to note … Continue Reading

Pump Your Brakes: Sixth Circuit Warns District Courts to Make “Rigorous” Rule 23 Analysis

The Sixth Circuit yesterday in a per curiam opinion (paneled by Judges Boggs, Thapar, and Readler) accepted interlocutory appeal of and vacated a class certification order from the Eastern District of Michigan.  The case is In re: Ford Motor Company, Case No. 22-0109 (6th Cir.). The Court’s opinion served to remind district courts that they … Continue Reading

Sixth Circuit Judges Still Write Lots Of Dissenting and Concurring Opinions, But Appear To Be Less Partisan

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

New Standard For Notice In FLSA Collective Actions:  Clark v. A&L Homecare and Training Center

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

The Sixth Circuit Rejects En Banc Review Regarding Remuneration and Causation Under the False Claims Act

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 Three Circuits That Publish Far More Opinions Than Any Others—And How The Sixth Circuit Stacks Up

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

Sixth Circuit Opinion Reversed in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.

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

Rachel Bloomekatz Nominated to the Sixth Circuit

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

A Closer Look at the Sixth Circuit’s Decision on the Contractor Mandate

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

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

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

Initial En Banc Petitions, Procedural Possibilities, and the OSHA Vaccine Mandate.

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

President Biden Nominates Andre B. Mathis to the Sixth Circuit

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

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

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
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