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The Court of Appeals doesn’t know all the information about a case unless the parties teach it (even if everyone else in the case does).

When a panel of the Sixth Circuit denied rehearing in a criminal case last month, Judge Moore issued a separate opinion, joined by Judge White, that highlights an important point for appellate advocacy. That is, regardless of how common some knowledge may be to the litigants at the trial level, the judges on appeal know … Continue Reading

Sixth Circuit re-affirms substantive due process claims may go forward in Flint water cases. Then they settle.

In another of the many strands of the Flint water cases, a Sixth Circuit panel (Moore, White, JJ., Sutton, J. concurring) on August 5 reaffirmed its May 2020 decision in Waid vs. Snynder that plaintiffs plausibly alleged the City of Flint and City and State officials (including former Governor Rick Snyder) violated plaintiffs’ substantive due … Continue Reading

Former US Attorney & 6th Circuit Vet Ben Glassman Joins Squire Patton Boggs Appellate Practice

Squire Patton Boggs is excited to welcome Ben Glassman back to the firm as a partner in the Cincinnati and Columbus offices. As recently reported in the Cincinnati Enquirer, Ben joins after serving as the United States Attorney for the Southern District of Ohio from 2016 to 2019. At least as important for readers of the … Continue Reading

Movant Beware: No right of action under HIPAA, and no class-cert absent notice      

The Sixth Circuit has joined other circuits in unanimously holding that HIPAA creates no private right of action. That was the easy part. The panel divided 2-1 in ruling that a Tennessee statute likewise provides no remedy for patients allegedly overcharged by Ciox, a medical-records company. But Faber v. Ciox Health wasn’t a complete blowout: … Continue Reading

Opioid Update: Ohio Cities Now on Both Sides of Negotiation-Class Fight

Six Ohio cities represented by Tom Goldstein filed a petition at the Sixth Circuit Court of Appeals opposing Judge Polster’s certification of the negotiation class in the opioid MDL. The cities’ petition urges the Sixth Circuit to immediately review the certification of the negotiation class now rather than on appeal—lest they risk wasting the time and … Continue Reading

Trail-Blazing Sixth Circuit Judge Damon Keith Dies at 96

Sixth Circuit Judge Damon J. Keith died this weekend at the age of 96.  He served on the Sixth Circuit for over 40 years.  A civil rights icon, he issued notable opinions addressing racial desegregation in public education, warrantless Nixon-era wiretaps, and blanket secrecy for deportation hearings of terrorism suspects after 9/11.  In remembrance, the … Continue Reading

Sixth Circuit Rules on Turbulent Air-Line Merger

In an opinion colored by aviation-themed puns, Judge Thapar, writing for the Sixth Circuit in Flight Options, LLC v. Int’l Bhd. of Teamsters, Local 1108, ordered airlines and pilot unions to arbitrate their long-running dispute. A few years ago, two luxury airlines merged, leading to a spate of litigation. Most recently, the airlines attempted to … Continue Reading

Sixth Circuit Affirms Preliminary Injunction Against the University of Cincinnati

University policies on responding to sexual assault claims have been hotly debated around the country.  The Sixth Circuit recently weighed in on the constitutional dimension of this issue.  Last month, in John Doe v. University of Cincinnati, et al., the Sixth Circuit found a strong likelihood that an accused student’s constitutional due process rights were … Continue Reading

Sixth Circuit: City Waived Exhaustion Requirement By Removing Takings Claim to Federal Court

Normally, a regulatory-takings plaintiff must seek compensation through “procedures the State has provided,” before suing in federal court.  Last week, in a unanimous unpublished opinion, Lilly Investments v. City of Rochester, the Sixth Circuit joined the Second and Fourth Circuits by holding that, by removing the case, a defendant-city waives this exhaustion requirement.  The Court reasoned … Continue Reading

Shipwreck Case Leads to Sanctions

The saga of a shipwreck treasure trove continues in Williamson, et al. v. Recovery Limited Partnership, et al., “yet another skirmish in the legal battle over the treasure from the S.S. Central America,” a shipwreck discovered over 130 years after it sank in September 1857. (Earlier litigation has previously been a topic of this blog, … Continue Reading

Are Unpublished Cases Precedential? The Citation of Unpublished Cases In Sixth Circuit Decisions

In a previous post, we looked at how often various circuits issue unpublished opinions and the differences between their rules on published decisions.  The Sixth Circuit’s most recent directive is that “[u]npublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent panels, but their reasoning may be ‘instructive’ or helpful.”  Crump v. … Continue Reading

Sixth Circuit Vacates Sanctions Against Assistant Public Defender

Last week in United States of America v. Gabriel Llanez-Garcia, the Sixth Circuit vacated sanctions imposed against an assistant federal public defender and dismissed the sanctions proceedings against her.  In a strongly-worded repudiation, the panel found no indication of the bad faith required to warrant sanctions under a court’s inherent authority.  Noting that “[a]n attorney’s … Continue Reading

Sixth Circuit Upholds Determination that Lockheed Martin is Liable for Cleanup of Blimp Factory

On Tuesday, the Sixth Circuit upheld the Northern District of Ohio’s prior ruling that Lockheed Martin Corporation, not Goodyear Tire & Rubber Company, is liable for more than $40 million in remediation costs at a contaminated blimp factory known as the Airdock.  (Lockheed Martin, Corp. v. The Goodyear Tire & Rubber, Co., Case No. 12-4108)  Through … Continue Reading

Supreme Court Accepts Sixth Circuit Indian Casino Case

On Monday, the Supreme Court took up a Sixth Circuit case on federal court authority over a Native American tribe’s off-reservation gaming activity under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.  In the proceedings below, the Michigan Attorney General obtained a preliminary injunction barring the operation of an illegal, off-reservation casino … Continue Reading

Sixth Circuit reverses $82 million grant of summary judgment to United States in False Claims Act case

Renal Care Group, Inc., (“Renal Care”) a dialysis provider, created a wholly-owned subsidiary to take advantage of loopholes in the Medicare regulatory scheme that would permit it to increase its profits.  The United States intervened in a qui tam suit  alleging  False Claims Act violations against Renal Care and the subsidiary.  The district court granted summary judgment … Continue Reading

Sixth Circuit Decision Enjoining Early In-Person Voting Restrictions a Victory for Obama Campaign

As the November 6 election approaches, the eyes of the nation are on the Buckeye state, one of the key battleground states that will decide the presidential decision.  A recent decision by the Sixth Circuit has further brought Ohio into the national spotlight.  In Obama for America v. Husted, Nos. 12-4055/4076 (pdf), the panel affirmed … Continue Reading

Sixth Circuit Rejects Planned Parenthood’s Challenge to Ohio Abortion Law

Earlier this week in Planned Parenthood v. DeWine, Sixth Cir. No. 11-4062, the Sixth Circuit affirmed the district court’s rejection of Planned Parenthood’s constitutional challenge to Ohio Revised Code § 2919.123, which criminalized the distribution of RU-486 (“the abortion pill”) unless the distribution tracked the FDA protocol regarding gestational time limits and dosage, as established at the … Continue Reading

District Court’s Preliminary Injunction Goes Up In Smoke When Sixth Circuit Rules Against Retailers of Roll-Your-Own Cigarette Machines

The Sixth Circuit recently vacated a district court’s grant of a preliminary injunction preventing enforcement of Ruling 2010-4 by the Department of Treasury, Alcohol and Tobacco Tax and Trade Bureau, and it remanded the action to the district court with instructions to dismiss.  Ruling 2010-4 deemed retailers that offered roll-your-own cigarette machines to be “manufacturers … Continue Reading

Wading into Circuit Splits, Sixth Circuit Upholds Injunction Against Michigan Township for Violating Telecommunications Act

Last week, the Sixth Circuit upheld a district court’s grant of partial summary judgment in favor of T-Mobile for violations of the Telecommunications Act.  (T-Mobile Central, LLC v. Charter Township of West Bloomfield)  Interpretation of the Act has led to significant splits among the circuit courts, as outlined in the Court’s opinion.  The defendant, West … Continue Reading