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
While all eyes are currently on a vacancy at the Supreme Court, we should not overlook circuit-level vacancies. Not including senior judges, the Sixth Circuit has positions for 16 judges, but with one vacancy, only has 15 active judges. The vacancy, created when Judge Martin retired on August 16, 2013, has existed on the court … Continue Reading
On Monday, the Sixth Circuit agreed to hear challenges to a controversial rule redefining the federal government’s jurisdiction under the Clean Water Act. Industry and environmental groups have argued that it would be better for the nearly 20 lawsuits filed regarding the rule to be decided at the district level. In Murray Energy Corporation v. … Continue Reading
The Telephone Consumer Protection Act (TCPA) makes it unlawful for any person to place a call using any automatic telephone dialing system or any artificial or prerecorded voice to a cell phone number without obtaining the prior express consent of the called party. The FCC has interpretive authority over the TCPA and “has provided extensive … Continue Reading
In the 12 months ended June 30, 2015, the Sixth Circuit terminated 4,858 cases. Of the total cases terminated, 3,515 were terminated on the merits, meaning that they were terminated either through consolidation with another case, after the submission of the parties’ briefs, or after oral argument. A review of the judicial statistics surrounding the … Continue Reading
We all know that courts want to read contracts as a whole to effectuate the intent of the parties. This case provides a textbook illustration of the principle. In a case arising from the bankruptcy and technology context, Cyber challenged the district court’s interpretation of its contractual agreements with Priva. The dispositive question was whether … Continue Reading
Just over a year ago, we examined the propensity of the Sixth Circuit to uphold district courts’ decisions to grant summary judgment for employers in cases tagged as “Labor & Employment” cases. As can be seen in our 2014 review, the Sixth Circuit upheld 60% of summary judgment decisions in favor of the employer. We … Continue Reading
The Sixth Circuit tackled a complex question involving the interpretation and application of Internal Revenue Code Section 1256 as it applies to so-called “major-minor” currency transactions. The term “major-minor” is a reference to the fact that a currency is considered “major” if positions in it are traded through regulated futures contracts and a currency is … Continue Reading
On December 29th, the Sixth Circuit issued a 2-1 decision holding that an employer could be bound by a collective bargaining agreement (“CBA”) even if the employer did not sign the CBA or expressly authorize someone else to sign on the employers behalf. The Court explained that its holding is in line with Sixth Circuit … Continue Reading
In an opinion filed on December 16, the Sixth Circuit discussed a Daubert question that the court declared to be a “close call,” but ultimately agreed with the district court’s finding that the expert testimony was admissible. The Daubert issue was on appeal as part of a complex case that involved a claim made by … Continue Reading
We have previously looked at the rates at which the Sixth Circuit reverses the various district courts (see here and here), noting that the average and overall reversal rate fluctuates between 16% and 18%. Our clients are always interested in the reversal rates and we are frequently asked to ballpark the odds of winning a particular … Continue Reading
