Tag Archives: sixth circuit

Sixth Circuit Agrees with Eleventh Circuit on TCPA Question

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

Sixth Circuit Oral Argument Statistics

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

All contract Provisions Contribute to the Intent of the Parties

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

Tax Code Interpretation Presents an Issue for Congress, Not the Courts

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

Divided Sixth Circuit Finds Employer Bound by Collective Bargaining Agreements without a Signature

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

Close Call on Daubert Question

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

Surprising Changes In Reversal Rates In The Sixth Circuit

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

Sixth Circuit Grants En Banc Review

On Friday, the Sixth Circuit voted to rehear Detroit Free Press, Inc. v. USDOJ (Free Press II) en banc. As we have noted here and here, the Sixth Circuit has been reluctant recently to grant en banc review. As with any grant of en banc review, the previous judgments of the court are vacated and the case is … Continue Reading

Sixth Circuit Differentiates Trade Secrets and Confidential Information

On Tuesday, in an unpublished opinion, the Sixth Circuit addressed the relationship between trade secrets, contractually protected confidential information, and general skills and knowledge. The Sixth Circuit reversed the district court’s ruling and held that not all contractually protected confidential information is either a trade secret or general knowledge or skill. Rather, confidential information can … Continue Reading

Daubert in the Sixth Circuit

In February of 2014, we posted an analysis of the Sixth Circuit’s dealings with Daubert claims dating back to 2010. Over that four year period, the Sixth Circuit reversed fives cases on the basis of the district court’s application of Daubert v. Merrell Dow Pharmaceuticals. In four of the five reversed cases, the Sixth Circuit … Continue Reading

Visiting Judges in the Sixth Circuit

On more than one occasion, we have discussed the Sixth Circuits use of visiting judges. Specifically, we have noted the Sixth Circuit’s heavy reliance on visiting judges. While the Sixth Circuit’s use has decreased, the percentage of cases heard by visiting judges continues to exceed almost all other circuit courts. In the review of case … Continue Reading

Sixth Circuit Clarifies Standard for Interlocutory Appeal Under 1292(b)

In Little v. Louisville Gas & Electric Co., decided with a companion case, the Sixth Circuit offered some pointers on discretionary interlocutory review under 28 U.S.C. 1292(b). The district court had declined to dismiss state claims as preempted but independently dismissed most of plaintiffs’ federal claims.  In certifying under 1292(b), the court certified “that portion” … Continue Reading

Sixth Circuit Sides with Third Circuit on Preemption Issue

In an opinion issued yesterday, the Sixth Circuit concluded that the Clean Air Act does not preempt common law claims brought against an emitter that are based on the law of the state in which the emitter operates. Merrick, et al. v. Diageo Americas Supply. The court’s holding is consistent with the Third Circuit’s holding … Continue Reading

Divided Sixth Circuit Addresses “No Fly” List

The Sixth Circuit issued an opinion this morning taking a stance on an issue of first impression involving subject matter jurisdiction. On appeal from the Eastern District of Michigan, Mokdad v. Lynch, et al. involved a challenge by Saeb Mokdad, a naturalized United States citizen, to his placement on the No Fly List, a list … Continue Reading

The Sixth Circuit Has A New Chief

Judge R. Guy Cole, Jr. became the Chief Judge of the Sixth Circuit on August 15.  Prior to his nomination to the Sixth Circuit, Chief Judge Cole had a diverse range of experience, including both public service and private practice: a litigator at the United States Department of Justice, a law firm partner, and a … Continue Reading

Donald Verrilli Headlines the Sixth Circuit Practice Institute

Solicitor General Donald Verrilli discussed the history and purpose of the Solicitor General’s office in the keynote address at Tuesday’s Sixth Circuit Practice Institute.  He explained that the commonly-held idea that he is representing the United States as an abstraction is misguided.  With every important issue, the Solicitor General reaches out to agencies and executive … Continue Reading

More on the Sixth Circuit and Circuit Splits

We have recently reported on the Sixth Circuit’s recent record in circuit splits.  Considering circuit splits raises an interesting question: If the circuit courts have not acknowledged a circuit split, how much attention should the Supreme Court pay to district courts’ perceptions when deciding whether to grant cert?  The district court is presumably neutral on … Continue Reading

The Sixth Circuit Rejects Settlement That Benefits Plaintiffs’ Attorneys At The Expense Of The Class

The Sixth Circuit’s decision in In re: Dry Max Pampers Litigation (No. 11-4156) creates a new standard for class action settlements:  they must pass the smell test.  Judge Kethledge’s decision finds that the class received “nearly worthless injunctive relief” while the named plaintiffs received $1,000 per child and the plaintiffs’ attorneys received $2.73 million.  The … Continue Reading

Sixth Circuit Rejects $500 Million Claim By FDIC

In FDIC v. AmTrustFinancial Corporation, the Sixth Circuit considered the results of the very first trial in the nation under Bankruptcy Code Section 365(o).  Section 365(o) is an infrequently litigated provision of the Bankruptcy Code that requires a party seeking Chapter 11 bankruptcy protection to fulfill “any commitment . . . to maintain the capital … Continue Reading

Predicting Outcomes Based On Questioning at Oral Argument

In connection with the Supreme Court’s health care decision, many commentators doubted whether judges’ questioning at oral argument can be used to predict outcomes.  Yet recent research has shown that the emotional content of a judge’s questions does predict voting patterns at the Supreme Court.  We applied this research to the Sixth Circuit by looking … Continue Reading