U.S. Sixth Circuit: December 2011 Archives
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December 2011 Archives

Employer Has No Affirmative Duty to Trigger Condition Precedent?

As the economy continues to struggle, and businesses shutter, more employers may start offering employees retention bonuses to keep a skeleton staff on board through a company's final days.

So what employer obligations attach to a retention bonus?

The Sixth Circuit Court of Appeals ruled this week that an employer that offers a retention bonus subject to a condition precedent may not have an affirmative duty to take actions to trigger the condition precedent.

Vet's $4.4 Million Hostile Work Environment Judgment Denied

The Sixth Circuit Court of Appeals issued an unpublished opinion this week finding that a district court did not abuse its discretion in vacating a front pay award for a disabled vet who sued the Army for constructive discharge.

James McKelvey, an Army veteran, lost his right hand and sustained other injuries while attempting to diffuse a roadside bomb in Iraq. (McKelvey knows a thing or two about hostile work environments.) After recovering from his injuries, McKelvey moved to Michigan and accepted a civilian position with the Army.

Sixth Circuit Upholds Upward Variance for Threat Against Judge

We know that it's cliché, but the saying that "two wrongs don't make a right" rings true in today's upward variance case from the Sixth Circuit Court of Appeals.

Herbert Dixon was miffed after a federal district judge sentenced him to prison for fraudulent use of an unauthorized credit card, so he sent the judge six unsigned, letters demanding money and threatening the judge's life. One of the letters contained faux-Anthrax, which was later determined to be artificial sweetener.

Had Dixon's diabolical plan "worked," we wouldn't be writing about his appeal right now, so you already know it was a failure.

Sixth Circuit Reverses Course on Consecutive Sentences

We all know that a Supreme Court opinion trumps a circuit opinion. To make that point crystal clear to litigants, the Sixth Circuit Court of Appeals issued an unpublished this week rejecting a defendant's consecutive sentence appeal.

In the opinion, the court noted it had vacated its own precedent in U.S. v. Almany in light of controlling Supreme Court precedent in Abbott v. U.S.

No Sentencing Guidelines Departure for Military Service

Military service might serve as a get-out-of-jail early, if not free, card for a number of minor crimes, but it won't guarantee a defendant a Sentencing Guidelines departure for child pornography possession.

The Sixth Circuit Court of Appeals ruled this week that a district court did not abuse its discretion in sentencing a child pornography offender to the most lenient prison term under the Sentencing Guidelines because, despite the defendant's assertions to the contrary, the punishment was substantively reasonable.

A Tale of Two Marks: Maker's Mark and the Red Wax Trademark

It was the best of times and the worst of times for Maker's Mark attorney Edward Colbert last week as he argued that the Sixth Circuit Court of Appeals should uphold a 2010 district court order giving the bourbon brand exclusive use of the dripping red wax seal for which its bottles have become known.

Defendant-Appellant Diageo introduced Jose Cuervo Reserva tequila bottles with similar red wax seals into the North American liquor market in 2001, prompting Maker's Mark to file a trademark infringement lawsuit. Diageo's attorneys have argued that the red wax seal would not cause consumers to confuse their tequila with Beam's bourbon because -- really -- who could ever confuse tequila and bourbon?

That argument did not seem to persuade the panel.

Sixth Cir. Denies Civil Conspiracy Appeal in Illegal Entry Case

We love a good conspiracy theory. Unfortunately, it’s easy to develop a conspiracy theory, but it’s difficult to prove a civil conspiracy.

Today, we’re looking at a Sixth Circuit Court of Appeals case evaluating an appellant’s civil conspiracy claim. First, let’s start with the facts.

Fat Cat Loses Insufficient Evidence Appeal

Robert Sills - who we’ll call by his drug-runner street name, “Fat Cat” - appealed his conviction for conspiracy to distribute five kilograms of more of cocaine based on insufficient evidence and prosecutorial misconduct.

Here’s why Sixth Circuit Court of Appeals ruled against him.

Fat Cat was charged with being a member of the “Black Mafia Family,” a nationwide drug conspiracy headquartered in Detroit. Four co-defendants turned against Fat Cat, and testified that they had driven vehicles with secret compartments filled with cocaine to St. Louis on numerous occasions. Fat Cat would take the cars, swap the coke for cash, and return the vehicles.