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
In Thacker v. Tennessee Valley Authority, the Supreme Court held that sovereign immunity does not necessarily shield TVA’s “discretionary functions” from liability. Justice Kagan’s unanimous opinion reversed the Eleventh Circuit, which had sided with longstanding Sixth Circuit precedent treating many TVA functions as immune from suit. Congress created the Tennessee Valley Authority, a government-owned corporation, … Continue Reading
Earlier this week, the Sixth Circuit issued a decision addressing a constitutional challenge to the practice of “chalking” the tires of parked cars for parking enforcement purposes. As we noted, that decision garnered a lot of attention from the national media. Yesterday, the Court issued an amended opinion clarifying the scope of its ruling. The … Continue Reading
It’s not often that a dispute over parking tickets ends up in federal court. But that’s exactly what happened this week in Taylor v. City of Saginaw – a case that has already drawn the attention of the national media. Taylor involved a challenge to “a common parking enforcement practice known as ‘chalking,’ whereby City parking … Continue Reading
As appellate attorneys, one of the most frequent questions we are asked is the chances of reversal. The likelihood of obtaining a reversal on appeal is always a very individual question—it requires a close look at the facts of the case and the legal questions raised by the appeal, and a host of other factors. … Continue Reading
As we predicted last November, President Trump will announce today that he is nominating Judge Amul Thapar for one of the two open seats on the Sixth Circuit. Judge Thapar is currently serving as a district judge in the Eastern District of Kentucky, and formerly served as the U.S. Attorney for that district. He is … Continue Reading
With the recent close of the Supreme Court’s October 2015 term, it is a good time to review how the Sixth Circuit performed over the course of the term. The Supreme Court reviewed 87 cases this term, but took only four cases from the Sixth Circuit. Of those four, three were reversed—an average reversal rate … Continue Reading
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
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
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
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
Nearly two years ago, we commented on the increasing frequency with which federal courts of appeals issue per curiam, and often short and unsigned, opinions. Specifically, we noted that the use of such opinions had increased significantly 2013, year over year. This increase was consistent with the general modern trend toward per curiam opinion. This … Continue Reading
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
The first-to-file rule is a doctrine that has grown out of the need to manage overlapping litigation across multiple courts. The doctrine provides that when actions involving nearly identical parties and issues have been filed in two different district courts, the court that first acquires jurisdiction usually retains the suit to the exclusion of the … Continue Reading
