On Tuesday, in an unpublished opinion, the Sixth Circuit addressed the relationship between trade secrets, contractually protected confidential information, and general skills and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
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
In February of 2012, the Sixth Circuit issued an opinion in Pfeil, et al. v. State Street Bank & Trust Co. reversing a district court’s dismissal of the case. The plaintiff in Pfeil, an employee at General Motors, brought suit against the fiduciary of a certain pension plan at GM known as an Employee Stock … Continue Reading
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
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
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
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
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
The Sixth Circuit has had lots of bad press over the past few years for its long string of reversals by the Supreme Court, mostly in habeas cases. Over the past term, the Supreme Court has granted certiorari in 11 cases from the Sixth Circuit and reversed in all but 2. While that sounds bad, … Continue Reading
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
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’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
With the recent close of the Supreme Court’s term, it is appropriate to consider the Sixth Circuit’s track record at the Court this year. The Sixth Circuit has not fared well in recent years before the United States Supreme Court in terms of the rate at which the Supreme Court has reversed the Circuit. The … Continue Reading
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
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
In an interesting criminal case, United States v. Skinner (09-6497), the Sixth Circuit rejected a Fourth Amendment challenge by a convicted drug runner based on the government’s tracking of location data from his cell phone. Judge Rogers’ opinion chronicles the efforts by government authorities to investigate a multi-state drug operation that utilized “pay as you go” cell phones … Continue Reading
In Katz v. Fidelity National Title Insurance Company (No. 10-3545), the Sixth Circuit held that title insurance companies are all but immune to private antitrust claims in Ohio. The plaintiff alleged that twenty-two title insurance companies and the Ohio Insurance Rating Bureau violated antitrust law by pooling claims data and setting a collective and unreasonably … Continue Reading
In the otherwise legally unremarkable decision in Waeschle v. Dragovic (11-1878), the Sixth Circuit warned that the failure to cite controlling precedent may result in sanctions. The panel found that Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010) was “clear circuit precedent that rendered [the appellant’s] argument meritless.” The Court criticized the appellant’s … Continue Reading
In Parker v. Matthews (No. 11-845), the Supreme Court reversed the Sixth Circuit’s grant of a habeas petition overturning two murder convictions in a death penalty case (recall that the Sixth Circuit just heard two death penalty cases en banc last week). The per curium opinion rejected the Sixth Circuit’s reliance on Kentucky’s use of … Continue Reading
Oral argument is important: recent scholarship shows that a strong performance at oral argument can influence the result of an appeal. In a recent post, we reported that we observed oral argument at the Sixth Circuit and generally found the court to be a “hot” bench. The panels we watched asked the attorneys an average of … Continue Reading
Last August, we discussed recent procedural changes surrounding oral argument in the Sixth Circuit. In an effort to shed more light on the topic of oral argument in the Sixth Circuit in general, we recently observed three days of oral argument. We attended 18 oral arguments presented before various panels that, taken together, were composed … Continue Reading
As we previously reported, we are presently exploring the issue of case management in the Sixth Circuit and considering various facets of how the Sixth Circuit internally handles its cases. One issue that attracts significant attention is the Circuit’s practice with respect to oral argument. As we discussed in our interview with Sixth Circuit Clerk … Continue Reading
Only a few days after we noted that the Sixth Circuit seems to be deciding an usually large number of healthcare decisions, the Court was at it again yesterday. In Chesbrough v. VPA, PC, Case No. 10-1494, the Court considered a False Claims Act brought by a qui tam relator, alleging fraudulent Medicare and Medicaid … Continue Reading
In a recent unpublished decision, Smith v. ABN AMRO Mortgage Group, Inc., the Sixth Circuit delved into the propriety of a district judge serving as a mediator in a case pending before him. The plaintiffs in the case agreed to a settlement, which the district court orally memorialized on the record after a day-long mediation … Continue Reading
