• 21 Aug 2021 2:00 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest member!

    Darren Craig Lamb of Goldberg Simpson, Prospect is a University of Louisville Brandeis School of Law graduate.  Mr. Lamb practices in the areas of Business Litigation, Commercial, Construction, Contract, General Liability, Insurance Coverage,  Professional Liability and Athlete Name, Image and Likeness (NIL).  He is a member of DRI and is sponsored by KDC Social Chair, Jarad Key.

  • 19 Aug 2021 10:46 AM | Kathi McKeown (Administrator)

    Messer v. Commissioner of Social Security

    Dockets: 20-5552, 20-5550, 20-5551 

    Opinion Date: August 16, 2021

    Judge: Richard Allen Griffin 

    Areas of Law: Civil Procedure, Class Action

    Attorney Conn represented Plaintiffs and thousands of others in seeking disability benefits from the Social Security Administration (SSA). Conn bribed doctors to certify false applications and bribed an ALJ to approve those applications. After Conn’s scheme was uncovered, SSA identified more than 1,700 approved applications that it believed might have been the product of fraud. SSA redetermined and denied Plaintiffs’ applications, Several class actions challenged the SSA’s redetermination procedures. The Martin case was dismissed without a class having been certified because the named plaintiffs failed to exhaust their administrative remedies. The Hughes case was stayed before a class was certified. In the meantime, the Sixth Circuit held that the SSA’s redetermination procedures violated due process. Plaintiffs had 60 days to seek judicial review of the SSA’s decision, 42 U.S.C. 405(g). Each waited more than two years. As absent Hughes class members, they relied on the Supreme Court’s “American Pipe” doctrine under which filing a class action pauses the deadlines for members to file related individual actions. Once the district court remanded Hughes, plaintiffs filed their civil actions. The district courts dismissed the suits as untimely. The Sixth Circuit reversed in part. American Pipe tolling continues after a district court denies a motion for class certification solely as a matter of docket management, without deciding that certification is unwarranted. The outright dismissal of an uncertified class action ends American Pipe tolling and restarts class members’ statute-of-limitations clocks.

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    Ward v. National Patient Account Services Solutions, Inc.

    Docket: 20-5902 

    Opinion Date: August 16, 2021

    Judge: R[ansey] Guy Cole, Jr. 

    Areas of Law: Civil Procedure, Consumer Law

    Ward received twice medical treatment at Stonecrest. Stonecrest hired NPAS, Inc. to collect Ward’s outstanding balances. NPAS first sent Ward a billing statement on October 3 related to his July hospital visit. The statement provided NPAS's full name and address at the top of the first page; the reverse side explained who it was. NPAS called Ward on October 24 and left a voice message: We are calling from NPAS on behalf of Stonecrest … Please return our call. On November 17, NPAS, sent a second billing statement. On December 27, NPAS left a second, identical, voice message. NPAS then returned his account to Stonecrest. Ward’s second account regarding his October hospital visit followed a similar process. On December 28, after retaining counsel, Ward sent a cease-and-desist letter to “NPAS Solutions, LLC,” an entity unrelated to NPAS, Inc. Ward stated at his deposition that NPAS, Inc.’s voice messages caused him to become confused as to which entity had called him. Ward filed suit under the Federal Debt Collection Practices Act, 15 U.S.C. 1692e(11) alleging NPAS failed, in its voice messages, to identify itself as a debt collector and failed to identify the “true name” of its business. The Sixth Circuit held that the case should be dismissed because Ward lacks Article III standing. Ward does not automatically have standing simply because Congress authorizes a plaintiff to sue for failing to comply with the Act. The procedural injuries Ward asserts do not bear a close relationship to traditional harms.

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  • 09 Aug 2021 1:19 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its three newest members:

    Emily Lamb of Blackburn Domene & Burchett, PLLC, Louisville is a graduate of University of Louisville Brandeis School of Law.  Ms. Lamb practices in the areas of Employment, General Liability and Tort.  She is sponsored by KDC member, Jennifer Kincaid Adams.

  • 05 Aug 2021 1:05 PM | Kathi McKeown (Administrator)

    Southard v. Newcomb Oil Co., LLC

    Docket: 20-5318 

    Opinion Date: August 4, 2021

    Judge: R[ansey] Guy Cole, Jr. 

    Areas of Law: Arbitration & Mediation, Labor & Employment Law

    Southard worked for Newcomb, then filed a putative class action, alleging violations of the Fair Labor Standards Act, 29 U.S.C. 201, plus state-law claims. Newcomb removed the case to federal court. Southard amended his complaint to delete the FLSA claim. Newcomb moved to dismiss Southard’s complaint or to stay the action pending arbitration. The district court concluded that the parties did not form an agreement to arbitrate under the Federal Arbitration Act, 9 U.S.C. 3-4 and denied Newcomb’s motion, then remanded Southard’s remaining state-law claims to state court. The Sixth Circuit affirmed. To invoke FAA remedies, the parties must have entered into a “written agreement for arbitration.” Courts evaluate whether an agreement qualifies as FAA arbitration based on the common features of classic arbitration: a final, binding remedy by a third party, an independent adjudicator, substantive standards, and an opportunity for each side to present its case. Southard’s application for employment states: I accept that any complaint or conflict that cannot be resolved internally may be referred to Alternative Dispute Resolution unless prohibited by law, before any other legal action is taken. The employee handbook states the employee agrees "to Alternative Dispute Resolution a forum or means for resolving disputes, as arbitration or mediation, that exists outside the state or federal judicial system, unless prohibited by law," and If there is a conflict that cannot be resolved, "both agree that the matter will be referred to mediation.”. The parties agreed to alternative dispute resolution generally, not arbitration specifically.

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  • 23 Jul 2021 2:25 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its two newest members:

    Cameron David Allen of Porter, Banks, Baldwin & Shaw, PLLC, Paintsville, is a graduate of the Appalachian School of Law.  Mr. Allen practices in the are of Insurance.  He is sponsored by KDC Director, Jonathan Shaw.

    Zachary Holdon Damron of Ward, Hocker & Thornton, PLLC, Lexington, is a graduate of the University of Kentucky Law School.  Mr. Damron practices in the areas of Insurance & Tort.  He is sponsored by KDC member,  John O. Hollon.

  • 23 Jul 2021 2:23 PM | Kathi McKeown (Administrator)

    Himmelreich v. Federal Bureau of Prisons

    Docket: 19-4146 

    Opinion Date: July 22, 2021

    Judge: Karen Nelson Moore 

    Areas of Law: Civil Rights, Constitutional Law, Criminal Law

    In 2008, another inmate, Macari, assaulted Himmelreich, who had pleaded guilty to producing child pornography, Himmelreich alleges that Macari was placed in the general population despite making comments about targeting “pedophiles.” Himmelreich filed a Tort Claim Notice with the Federal Bureau of Prisons. Himmelreich alleges that Captain Fitzgerald warned him not to complain and threatened to have him transferred. Prison officials subsequently placed Himmelreich in the special housing unit (SHU). Himmelreich claims that Fitzgerald told him it was because of the Tort Claim. Prison officials claim they placed Himmelreich in the SHU for his own protection after he complained of threats from other inmates. Himmelreich’s subsequent lawsuits alleged numerous claims against prison officials, including a “Bivens” claim for retaliation in violation of the First Amendment based on Fitzgerald’s alleged threats and statements. Fitzgerald unsuccessfully moved for summary judgment only on the ground that there is no Bivens remedy for a First Amendment retaliation claim. The Sixth Circuit dismissed Fitzgerald’s appeal for lack of jurisdiction because her appeal concerns neither a final order nor a non-final order entitled to review under the collateral order doctrine.

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  • 22 Jul 2021 3:19 PM | Kathi McKeown (Administrator)

    US Court of Appeals for the Sixth Circuit Opinions

    Rowland v. Southern Health Partners, Inc

    Docket: 20-5944 

    Opinion Date: July 21, 2021

    Judge: John M. Rogers 

    Areas of Law: Civil Procedure

    Rowland brought claims arising from injuries she sustained while incarcerated. The district court entered partial summary judgment in favor of the defendants on Rowland’s 42 U.S.C. 1983 and punitive damages claims. After that judgment, by agreement of the parties, the court entered an order dismissing Rowland’s remaining state-law negligence claims without prejudice, so that Rowland could pursue an appeal on her federal claims. Civil Rule 54(b) permits a district court to enter final judgment “as to one or more, but fewer than all, claims or parties” when it determines, using a multi-factor analysis, that “there is no just reason for delay.” The Seventh Circuit concluded that it lacked jurisdiction over the appeal because the voluntary dismissal of Rowland’s remaining state-law claims did not create an appealable final order under 28 U.S.C. 1291, A litigant cannot circumvent the requirements of Rule 54(b) by the expedient of voluntarily dismissing her surviving claims in order to seek immediate appellate review of an adverse judgment on her resolved claims, with the intention of reinstating the dismissed claims should she obtain a favorable outcome on appeal. Such a dismissal does not create a final order under 28 U.S.C. 1291.

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  • 20 Jul 2021 2:23 PM | Kathi McKeown (Administrator)

    United States v. Pioch

    Docket: 19-3919 

    Opinion Date: July 19, 2021

    Judge: Karen Nelson Moore 

    Areas of Law: Criminal Law, Government & Administrative Law

    Pioch and co-defendants were convicted based on their scheme to defraud the multimillion-dollar estate of an elderly widower. Pioch was sentenced to 111 months’ imprisonment with a special assessment of $3,700 and restitution of $2,037,783.30. Pioch shares joint-and-several liability with her co-defendants for $1,990,342.76 of the restitution to McLaughlin (victim’s son), under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. 3664(i)). Pioch personally owes the remaining $47,440.54 to the IRS, so she is liable for a total of $2,041,483.30 for the assessment and restitution. The government sought garnishment and, invoking the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. 3011(a)), requested a 10% surcharge, $204,148.33. The district court granted the garnishment and surcharge requests. The Sixth Circuit remanded, rejecting Pioch's argument that the surcharge should be calculated based on the “debt” that the government “actually recover[s] through enforcement of a collection remedy” (10% of the $367,681.48 subject to garnishment) and not the total debt resulting from her crimes (10% of the $2,041,483.30 judgment). When the government initiates an FDCPA action to recover debt owed to the United States, the government is entitled to recover a 10% surcharge on the entire outstanding debt; the debt must be paid off before the United States may collect the surcharge, which is added to, not subtracted from, the judgment.

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  • 19 Jul 2021 3:58 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest Member, Roxanne Edling of Baptist Healthcare Systems, Inc., Louisville.

  • 19 Jul 2021 10:53 AM | Kathi McKeown (Administrator)

    Alliance WOR Properties, LLC v. Illinois Methane, LLC

    Docket: 20-5396 

    Opinion Date: July 12, 2021

    Judge: Larsen 

    Areas of Law: Bankruptcy, Civil Procedure, Real Estate & Property Law

    In 1998, Old Ben Coal Company conveyed its rights to the methane gas in various coal reserves to Illinois Methane. A “Delay Rental Obligation” required the owner of the coal estate to pay Methane rent while it mined coal in areas that Methane had not yet exploited. A deed, including the Delay Rental Obligation was recorded. A few years later, Old Ben filed for bankruptcy and purported to sell its coal interests “free and clear of any and all Encumbrances” to Alliance. Old Ben did not notify Methane before the bankruptcy sale but merely circulated notice by publication in several newspapers. Alliance later sought a permit to mine coal. Methane eventually sought to collect rent in Illinois state court. Alliance argued that Old Ben’s “free and clear” sale had extinguished Methane’s interest. The bankruptcy court held that Alliance was not entitled to an injunction. The district court and Sixth Circuit affirmed. The deed indicates that the Delay Rental Obligation runs with the land and binds successors; it “is not simply a personal financial obligation between” Old Ben and Methane. The covenant directly affects the value of the coal and methane estates. Methane was a known party with a known, present, and vested interest in real property, entitled to more than publication notice.

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