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:
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.