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 yields some important questions regarding the use of statistical sampling in future cases. In Pierce v. Wyndham Vacation Resorts, Inc.,…

Recently we discussed academic criticism claiming that circuit courts may respond to increased caseload pressure by spending less time per case or lengthening the appeals process.  We found evidence suggesting that this is not occurring at the Sixth Circuit.  One interesting side note that our analysis showed is that the percentage of written decisions has increased significantly over the past decade.  We have calculated that the percentage of total appeals that end in a written…

When welcoming his (many) new colleagues, Judge Sutton has sometimes mentioned his court’s long-lost nickname: “The Learned Sixth.” Many of its earliest judges—Taft, Day, Lurton, Howell Jackson—served as diplomats or law school deans, cooled their heels at the Sixth Circuit, and proceeded to the Supreme Court. Is the Sixth Circuit recovering its name and reputation? Several current judges have appeared on shortlists of potential Supreme Court nominees. And as for the…

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.  One of those factors we look at is the overall reversal rate, which varies between 12% and 16% for civil…

In MAG IAS Holdings, Inc. v. Schmuckle (No. 16-1550), the Sixth Circuit issued its first published decision interpreting the reach of specific jurisdiction under Walden v. Fiore, 134 S. Ct. 1115 (2014).  The panel held that Walden stands for the idea that “an out-of-state injury to a forum resident, standing alone, cannot constitute purposeful availment” and that just knowing that out-of-state actions will have effects within the jurisdiction is not enough.  In this case, a…

An interesting paper has been making the rounds discussing how appellate courts react to caseload pressure.  After September 11, 2001, the Second and Ninth Circuits had a large influx of immigration appeals that affect the other circuits, and the paper uses this as a “natural experiment.”   In his paper, Mr. Shay Lavie characterizes the Second Circuit as resistant to changing its procedures, and claims that this led to the circuit reversing fewer civil cases as…

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 universally well-liked and respected by bench and bar—which might be the reason he will be one of the first (if…