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Mid-July Recap: Barratry(!), ERISA Preemption(!!!), the Havis Trilogy and the Times

Note — This post (plus many others) arrives thanks to the hard work of Sixth Circuit Appellate Blog intern extraordinaire Barrett Block, a rising 3L at UK Law. 

A win for the Times

Our June Court Week recap highlighted the oral argument in Carlo Croce v. New York Times, involving a “prolific” Ohio State cancer researcher’s defamation claim against the New York Times. In a speedy decision issued only 26 days after argument, the Sixth Circuit (Moore writing; Cook and Nalbandian joining) unanimously affirmed Judge Graham’s dismissal. Though the Times’ article about Croce “may be unflattering . . . [it] is a standard piece of investigative journalism that presents newsworthy allegations made by others.”

The court reasoned “that a reasonable reader would not interpret [the] article, considering it as a whole, to be defamatory.” The panel nodded to Judge Nalbandian’s concurrence in Boulger v. Woods, which supported a reasonable-person rather totality-of-the-circumstances test under Ohio’s innocent-construction defamation rule.

Havis persists: Part III — United States v. Havis, a seemingly ordinary Tennessee felon-in-possession case, is the gift that keeps on giving for Sixth Circuit court watchers. It produced:

  1. four panel opinions, including a lengthy concurrence from Judge Amul Thapar challenging Auer deference,

  2. an en banc reversal, following Havis’ rehearing petition, restricting Sentencing Commission authority to establish freestanding criminal liability through the Guidelines,

  3. and now a concurrence to the denial of the government’s rehearing petition, in which Judge Jeff Sutton explained why the lawyers might’ve overlooked a way to treat Havis’ conviction as a controlled substance offense under 21 U.S.C. 841(a)(1) without running afoul of the Guidelines.

Alas, at this late stage in the proceedings that argument was no longer available. As the dust finally settles, Jeffery Havis’ drug conviction stands vacated and the Havis Trilogy has ended. (Unless, of course, the government files a cert petition.)

Back to Tennessee 

Lillian Knox-Bender sued a hospital in Tennessee state court for overcharging her. Her husband’s ERISA plan covered just $100 of the $8,000 bill. But because federal courts have exclusive jurisdiction over ERISA claims, the hospital removed the case and the federal court denied her motion to remand the case back to state court. Knox-Bender appealed to the Sixth Circuit—and won.

In Knox-Bender v. Methodist Healthcare-Memphis Hospitals, a unanimous panel (Thapar writing; McKeague and Murphy joining) held that “the simple presence of an ERISA plan on the balance sheet” is not enough for federal preemption. Otherwise, whenever “an ERISA plan paid any amount, no matter how small, [it] would be enough to force a case into federal court.”

If you sued for above-menu pricing, Judge Thapar explained, you would sue the restaurant rather than your credit-card company. Similarly, suing for an overcharged medical bill amounts to a claim against the hospital, not your ERISA plan.

1st Amendment Worker’s Comp

Ohio law bars attorneys from soliciting worker’s compensation claimants. Bevan, a law firm, allegedly violated O.R.C. § 4123.88(A) when it used state Bureau of Workers Compensation information to send direct mail to claimants. Bevan’s declaratory judgment claim that § 4123.88 is unconstitutional failed at the district court but prevailed at the Sixth Circuit.

Judge John Bush wrote in another unanimous opinion (Judges Cook and Siler joining) that although “Ohio has a substantial interest in protecting claimant privacy . . . [the] total ban on solicitation [was] not designed carefully to achieve the State’s goal.” Had the law banned only in-person solicitation or the use of illegally obtained information, it may have been constitutional.  But under Central Hudson and other commercial-speech decisions, the complete ban found in this 1930s-era law suppressed too much speech.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 199


About this Author

Lauren S. Kuley Appellate & Supreme Court Attorney Squire Patton Boggs Cincinnati, OH

Lauren Kuley is co-chair of the Appellate & Supreme Court Practice. She leads complex appeals and critical motions practice in courts nationwide. She simplifies complex issues and develops creative arguments to curtail legal disputes and overturn bad outcomes. Deploying this strategy, Lauren has argued and won reversals of significant verdicts on appeal and obtained dismissal of high-stakes claims at the pleading stage in federal courts. In the US Supreme Court, Lauren authored the briefs leading to a unanimous reversal for a Fortune 500 company. Lauren previously served in the Ohio...

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH

Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The appellate group leads the Sixth Circuit Appellate Clinic in Cincinnati and publishes the Sixth Circuit Appellate Blog.

In trial and proceedings across the country, Ben has tried cases, briefed and argued dispositive motions, defended and examined high-profile witnesses and negotiated settlements. Outside the courtroom, Ben has drawn on his governmental experience to counsel a Fortune 100 CEO appearing before a US Senate committee, resolve congressional investigations of a major bank and represent many of the country’s largest financial institutions before the SEC. Many of Ben’s cases involve complex questions of healthcare, energy, technology, insurance and financial services regulation.

At the start of his legal career, Ben clerked on the US Supreme Court for Justice Ruth Bader Ginsburg and the US Court of Appeals for the DC Circuit for Judge A. Raymond Randolph. He also worked as a legal fellow in Uganda for the International Justice Mission and traveled to London and the Supreme Court of the UK as a Temple Bar Scholar.

A Kentucky native, Ben has handled appeals for the University of Kentucky and several other major institutions in the Commonwealth. He helped found the Kentucky Business Council in Washington DC and sits on the Board of Trustees for his alma mater, Centre College. Before attending law school, Ben served as deputy chief of staff for the Kentucky Cabinet for Health and Family Services, and as a legislative assistant for a US Congressman.