For the second time in about a week, the Sixth Circuit recognized that one of its prior precedents should be overruled. To say this is unusual is an understatement. Typically, the Sixth Circuit can only overrule prior precedent if it does so en banc. Neither of the opinions it issued, however, were en banc dispositions. … Continue Reading
The Sixth Circuit generally hears en banc cases twice a year, in December and June. The en banc sitting for June is today, and the Sixth Circuit will hear two cases en banc, Stumpf v. Robinson & USA v. Gabrion. Interestingly, both cases happen to be death penalty cases, one of which is a habeas … Continue Reading
The Cincinnati/Northern Kentucky chapter of the Federal Bar Association will once again host the annual Judges’ Night Dinner on June 5th. Details about the event and how to register are available here. The Judges’ Night Dinner is generally held prior to an en banc sitting of the Sixth Circuit, and most of the judges, as well … Continue Reading
In T. Marzetti Company v Roskam Baking Company , the Sixth Circuit decided that the mark “Texas Toast” is not entitled to trademark protection for a specific type of crouton. Following closely on the heels of the Circuit’s recent Maker’s Mark trademark ruling, the Court continues to develop its jurisprudence on trademark infringement issues, particularly in the context of … Continue Reading
In a recent article by Adam Liptak in the New York Times, he noted that several commenters have questioned the value of oral argument at the U.S. Supreme Court. Needless to say, this matter is not confined to the Supreme Court, as we recently reported concerning the Sixth Circuit’s evolving thinking on the question of oral argument. … Continue Reading
In American Financial Group v. United States, the Sixth Circuit recently rejected an IRS appeal seeking a determination that a $59 million deduction taken by an insurance company was inappropriate. The appeal ultimately turned on an actuarial guideline issued by the National Association of Insurance Commissioners concerning how insurance companies should handle accounting questions connected … Continue Reading
Yesterday, the Sixth Circuit affirmed class certification in an interlocutory appeal under Rule 23(f) in an MDL concerning alleged design defects in certain front-load washing machines produced by Whirlpool, In re: Whirpool Corporation Front-Loading Washing Products Liability Litigation. The case involves washing machines that allegedly became susceptible to mold and mildew which allegedly led to … Continue Reading
In United States v. Cunningham, the Sixth Circuit affirmed the convictions of a pair of Kentucky lawyers related to the $200 million Fen-Phen settlement. The Court’s opinion chronicles the actions of Shirley Cunningham, Jr. and William Gallion, who were lawyers representing 440 individuals who had opted out of a nationwide Fen-Phen class action. While the lawyers succeeded … Continue Reading
Over the past few years, the Sixth Circuit has undergone several changes as to how to cite to the record in briefs as electronic filing gradually replaced the old “joint appendix” system of record citation. The most recent change can be found in proposed Sixth Circuit Rule 28(a), which contains detailed descriptions of how the … Continue Reading
The Sixth Circuit’s Circuit Justice, Justice Kagan, gave a very interesting luncheon presentation today at the Sixth Circuit Judicial Conference. She was interviewed by Judge Gibbons and Judge Clay on a number of subjects, from internal Court practice to hunting trips with Justice Scalia. We’ve previously posted about amicus briefs, and Justice Kagan generally had … Continue Reading
One of the focuses of the Sixth Circuit over the past year, and certainly at this week’s judicial conference, is expediting the disposition of cases. In that regard, the Court has increased its workload considerably over the past several months, significantly increasing the hearing calendar. The Court has been able to do this by virtue … Continue Reading
The Sixth Circuit conference begins in Lexington, Kentucky today, and continues throughout the week. This is probably the biggest event of the year in Lexington, except perhaps for a college basketball national championship. Among the highlights on the agenda is a conversation with Justice Kagan at Thursday’s luncheon. We’ll provide periodic updates from the conference, … Continue Reading
The Sixth Circuit recently unveiled proposed rule amendments on its website. These rules represent the culmination of over a year’s worth of work both by the Sixth Circuit Rules Committee (of which I was a member) and the Judges’ Rules Committee. Many of the changes were designed to make the rules in more “plain English” … Continue Reading
In an interesting unpublished decision issued yesterday, General Medicine, P.C. v. Horizon/CMS Health Care Corporation, the Sixth Circuit, in a divided 2-1 decision, considered a fraud on the court challenge to a consent judgment. In the underlying case, two parties entered into a $376 million consent judgment that was approved by the district court while … Continue Reading
One of the major areas in which the Sixth Circuit handed down important decisions in 2011 concerned the admissibility of expert testimony under Daubert. The court continues to focus on this area, handing down another important Daubert decision recently in Newell Rubbermaid Corporation v. The Raymond Corporation. In that case, the plaintiff sought to admit … Continue Reading
In an otherwise unremarkable case concerning an unfair labor practice, the Sixth Circuit tackled a very interesting venue question concerning to which court union election disputes may be appealed. Brentwood at Hobart v National Labor Relations Board The union election took place in Indiana, but the appeal was brought to the Sixth Circuit. Under the … Continue Reading
The Sixth Circuit has accepted an interlocutory appeal in multi-district litigation pending against Countrywide Bank NA in the Western District of Kentucky. The proposed class is comprised of all Hispanic and African-American borrowers from Countrywide who originated loans from 2002 to the present. The plaintiffs claim that Countrywide discriminated against class members by charging minority … Continue Reading
We recently reported on the Sixth Circuit’s decision to dismiss an antitrust appeal for lack of jurisdiction. The appeal had been taken by Blue Cross/Blue Shield of Michigan in connection with an antitrust suit brought by the State of Michigan which sought to enjoin Blue Cross from using most favored nation clauses in its contracts with … Continue Reading
One of the issues that has recently attracted attention (and litigation) in the wake of the global financial crisis is the use of the MERS recording system used by certain banks in connection with the securitization of mortgages. The MERS system has been attacked by some as a way of avoiding recording fees, and in … Continue Reading
Frustration at a car rental company proved inadequate to maintain a class action, the Sixth Circuit held yesterday in Salling v Budget Rent-a-Car Systems. The plaintiff, steamed by a $13.99 refueling charge, brought a putative class action premised on fraud and unjust enrichment theories. Budget successfully removed to federal court pursuant to the Class Action … Continue Reading
We previously reported on an appeal taken by Blue Cross/Blue Shield of Michigan regarding an antitrust suit brought by the State of Michigan seeking to enjoin Blue Cross from the use of most favored nation clauses in contracts with Michigan hospitals. We noted that Blue Cross had appealed the denial of its motion to dismiss, which … Continue Reading
Nashville is both the hotbed for country music and now, apparently, copyright litigation. In the most recent decision of significance from the Middle District of Tennessee on copyright issues, Roger Miller Music Inc.; Mary A. Miller. v. Sony/ ATV Publishing, LLC. the Sixth Circuit reversed a nearly $1M copyright infringement award concerning song royalties. The … Continue Reading
Yesterday, the Supreme Court, in a 6-3 decision, reversed the Sixth Circuit in a criminal habeas case concerning the scope of Miranda protections. Howes, Warden v. Fields. The case involved the question of whether a prisoner who is being interviewed regarding other potential crimes was entitled to Mirandaprotections. The Sixth Circuit had previously affirmed the grant … Continue Reading
Perhaps proving the adage that the cover-up is worse than the crime, the Sixth Circuit yesterday affirmed the conviction for obstruction of justice of an individual who hacked Sarah Palin’s e-mail account when she was running for Vice-President. United States v. Kernell In 2008, a college student hacked Governor Palin’s e-mail account and posted details on how he … Continue Reading
