• 19 Jul 2021 10:47 AM | Kathi McKeown (Administrator)

    Taylor v. Buchanan

    Docket: 20-2002 

    Opinion Date: July 15, 2021

    Judge: Karen Nelson Moore 

    Areas of Law: Civil Rights, Constitutional Law, Legal Ethics

    Michigan attorneys, like those in most other states, must join an integrated bar association in order to practice law. Taylor, a Michigan attorney, argued that requiring her to join the State Bar of Michigan violates her freedom of association and that the State Bar’s use of part of her mandatory membership dues for advocacy activities violates her freedom of speech. The Seventh Circuit affirmed the rejection of Taylor’s First Amendment claims as foreclosed by two Supreme Court decisions that have not been overruled: Lathrop v. Donohue (1961) Keller v. State Bar of California (1990). The court rejected Taylor's argument that Lathrop and Keller no longer control because of the 2018 decision in Janus v. American Federation of State, County, and Municipal Employees where the Court held that First Amendment challenges to similar union laws are to be analyzed under at least the heightened “exacting scrutiny” standard Even where intervening Supreme Court decisions have undermined the reasoning of an earlier decision, courts must continue to follow the earlier case if it “directly controls” until the Court has overruled it.

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  • 19 Jul 2021 10:40 AM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest member.

    Meredith Cave of Kinkead & Stilz, PLLC, Lexington is a graduate of the University of Kentucky College of Law.  Ms. Cave practices in the areas of Business Litigation, Civil Rights, Commercial, Construction, Contract, Insurance, Medical Malpractice, Professional Liability, Property, Real Estate Transaction Liability and Professional Liability.  She is sponsored by KDC member, Melanie Sublett Marrs.

  • 08 Jul 2021 9:13 AM | Kathi McKeown (Administrator)

    In re: Hall

    Docket: 21-2655 

    Opinion Date: July 6, 2021

    Judge: Per Curiam 

    Areas of Law: Civil Procedure, Class Action

    Objectors to a class action settlement in the Flint Water Cases sought to compel the district court to cease holding off-the-record substantive ex parte meetings that exclude objectors’ counsel; to order the participants at certain conferences to recount for the record their recollection of what transpired at those conferences; to order settling parties to identify any other substantive unrecorded conferences since February 26, 2021; and to refrain from continuing to prescribe or dictate the litigation strategy of the parties in advocating for the settlement. The Sixth Circuit denied the petition. Despite the seriousness of their allegations, petitioners must show that mandamus is the appropriate remedy. The district court has not approved the settlement; their objections remain pending. If the court overrules their objections, and if the petitioners believe this decision was because of some impropriety, they can bring a direct appeal. Petitioners have not shown a clear and indisputable right to the relief they seek. Requiring district courts to invite unnamed class members and individual attorneys to every proceeding risks the efficiency interests that class actions are meant to promote. District courts appoint interim lead and liaison counsel to represent the class’s interests in pre-judgment proceedings. The court’s order indicates that it is aware of its ethical obligations and plans to hear from objectors during the fairness hearing.

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    Copen v. United States

    Docket: 20-3136 

    Opinion Date: July 6, 2021

    Judge: Jane Branstetter Stranch 

    Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury

    Paul was driving his daughter Kelly’s vehicle when it was struck by a United States Postal Service (USPS) vehicle. Kelly was a passenger. Days later, Kelly filed her SF 95, for a claim under Federal Tort Claims Act (FTCA), 28 U.S.C. 2671–80. Use of the form is not required to present an FTCA claim. Kelly listed herself as the claimant, noted Paul’s involvement, and indicated that the extent of their injuries was unknown. Kelly alone signed the form and provided only her contact information. The form requests a total amount of damages and states: “[f]ailure to specify may cause forfeiture of your rights.” Kelly wrote: “I do not have ... a total on medical.” Kelly sent USPS the final car repair bill, which USPS paid. Later, USPS received a representation letter from counsel for Kelly that did not mention Paul. USPS responded, stating: “A claim must be for a specific dollar amount.” USPS states that it did not receive any further information concerning the amount of personal injury damages. Paul and Kelly filed suit, seeking $25,000 in personal injury damages. The district court dismissed for lack of jurisdiction. The Sixth Circuit remanded. While the sum certain requirement in the FTCA is not jurisdictional, Kelly never provided a sum certain so, her personal injury claim is not cognizable. The agency had adequate notice of Paul’s claim but he also failed to satisfy the statutory “sum certain” requirement.

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  • 03 Jul 2021 2:27 PM | Kathi McKeown (Administrator)

    Adamo Demolition Co. v. International Union of Operating Engineers

    Docket: 20-1163 

    Opinion Date: July 2, 2021

    Judge: Jane Branstetter Stranch 

    Areas of Law: Business Law, Labor & Employment Law

    Adamo filed several tort claims, alleging that it requested the Union to provide 47 operators for a demolition job, indicating that the project was time-sensitive and that the Union willfully refused to provide Adamo contact information for proposed workers, refused to give reasonable assurances that operators were experienced, trained and qualified, and refused to fulfill Adamo’s request to verify their qualifications. Adamo alleged that the Union sent unqualified workers, who created unsafe working conditions and caused damage for which Adamo was liable. Adamo partially staffed the project with its own workers; the Union allegedly ordered these workers to stop work and used “intimidation” to displace the experienced workers with unqualified workers. As a result of the Union’s interference, Adamo claims it breached its contractual obligations. Adamo also contends that the Union and its president have been “intentionally and maliciously" made "unprivileged, injurious, false and defamatory statements concerning Adamo,” which are affecting Adamo’s good reputation in the community. The district court concluded that section 301 of the Labor Management Relations Act, 29 U.S.C. 185, preempted all Adamo’s claims and dismissed them. The Sixth Circuit affirmed. Whether the defendants’ conduct was justified or improper is inextricably intertwined with and dependent upon the terms of the collective bargaining agreement. The only allegedly defamatory statements were published in the context of a labor dispute, and required a showing of actual malice; the falsity of those statements defends on the terms of the agreement.

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  • 01 Jul 2021 4:12 PM | Kathi McKeown (Administrator)


    US Court of Appeals for the Sixth Circuit Opinions

    Ingram Barge Co., LLC v. Zen-Noh Grain Corp.

    Docket: 20-5514 

    Opinion Date: June 28, 2021

    Judge: Siler 

    Areas of Law: Admiralty & Maritime Law, Business Law, Commercial Law, Contracts, Transportation Law


    Zen-Noh purchased grain shipments. Sellers were required to prepay barge freight and deliver the product to Zen-Noh’s terminal but were not required to use any specific delivery company. Ingram, a carrier, issued the sellers negotiable bills of lading, defining the relationships of the consignor (company arranging shipment), the consignee (to receive delivery), and the carrier. Printed on each bill was an agreement to "Terms” and a link to the Terms on Ingram’s website. Those Terms purport to bind any entity that has an ownership interest in the goods and included a forum selection provision selecting the Middle District of Tennessee. Ingram updated its Terms and alleges that it notified Zen-Noh through an email to CGB, which it believed was “closely connected with Zen-Noh,” often acting on Zen-Noh's behalf in dealings related to grain transportation. Weeks after the email, Zen-Noh sent Ingram an email complaining about invoices for which it did not believe it was liable. Ingram replied with a link to the Terms. Zen-Noh answered that it was “not party to the barge affreightment contract as received in your previous email.” The grains had been received by Zen-Noh, which has paid Ingram penalties related to delayed loading or unloading but has declined to pay Ingram's expenses involving 'fleeting,’ 'wharfage,’ and 'shifting.’” Ingram filed suit in the Middle District of Tennessee. The Sixth Circuit affirmed the dismissal of the suit. Zen-Noh was neither a party to nor consented to Ingram’s contract and is not bound to the contract’s forum selection clause; the district court did not have jurisdiction over Zen-Noh.

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  • 01 Jul 2021 3:48 PM | Kathi McKeown (Administrator)

    If you turn to page 30 of the June 2021 issue of DRI's publication, For the Defense, you'll find Social Media, Students, and SCOTUS, an article co-authored by KDC Past President, Claire Parsons and KDC member, Olivia Amlung.  Thank you, Ashley & Olivia, for making Kentucky look good!

    Not a member of DRI?  It's a great way to connect with people around the world.  Contact Beth Lochmiller at blochmiller@clblaw.com or Ashley Brown at abrown@whtlaw.com to learn more.

  • 01 Jul 2021 12:47 PM | Kathi McKeown (Administrator)

    Change of venue 


    Effective July 1, 2021, Lawyers Mutual
    has a new address.


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    Lawyers Mutual of Kentucky

    10503 Timberwood Circle • Suite 213

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  • 29 Jun 2021 3:29 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest member.

    Robert May of Kinkead & Stilz, Lexington, is a graduate of the University of Louisville Brandeis School of Law.  Mr. May practices in the area of Medical Malpractice.  He is sponsored by KDC member, Melanie Sublett Marrs.

  • 28 Jun 2021 10:05 AM | Kathi McKeown (Administrator)

    KDC is pleased to welcome the following new members:

    Ellen Black of Kinkead & Stilz, Lexington, is a University of Kentucky Law School graduate.  Ms. Black practices in the areas of Commercial Litigation, Civil Rights Litigation and Employment Litigation.  She is sponsored by KDC member, Melanie Sublett Marrs.

    Colton Givens of Kerrick Bachert PSC, Bowling Green, is a University of Kentucky Law School graduate.  Mr. Givens practices in the areas of Commercial, Construction, Contract, General Liability, Insurance Coverage, Premises Liability, and Property.  He is sponsored by KDC member Thomas Kerrick.

    F. Walter ("Franklin") Milam of Bell, Orr, Ayers & Moore, P.S.C., Bowling Green, is a University of Kentucky Law School graduate.  Mr. Milam practices in the areas of Agriculture, Appellate, Auto, Bad Faith, Business Litigation, Commercial, Construction, Contract, Education, Employment, General Liability, Government Entity, Insurance Coverage, Municipal, Premises and Product Liability, Property, Real Estate Transaction Liability, Tort and Trucking.  He is sponsored by KDC President Paul T. Lawless.

  • 28 Jun 2021 9:54 AM | Kathi McKeown (Administrator)

    Ciccio v. SmileDirectClub, LLC

    Docket: 20-5833 

    Opinion Date: June 25, 2021

    Judge: McKEAGUE 

    Areas of Law: Arbitration & Mediation

    SmileDirect sells orthodontic implements online as an alternative to traditional orthodontists. Plaintiffs sued SmileDirect, alleging false advertising. SmileDirect and its customers had an arbitration agreement that excepted claims within the jurisdiction of Small Claims Court. The district court concluded that whether the claims fell within that exception was a gateway question of arbitrability and that the parties agreed to arbitrate such gateway questions. The consumer plaintiffs voluntarily dismissed their claims. One consumer plaintiff, Johnson filed a demand for class-wide arbitration with the American Arbitration Association (AAA). An AAA administrator stated that AAA’s Healthcare Due Process Protocol and Healthcare Policy Statement applied, which require healthcare providers and their patients to sign an arbitration agreement after a dispute arises in certain cases unless a court order has compelled arbitration. Johnson declined to sign the post-dispute agreement and moved to rejoin this case. The district court held that Johnson satisfied his obligations under the arbitration agreement, concluding that the arbitration agreement did not cover the dispute. The Sixth Circuit reversed. Whether an arbitration agreement covers a dispute is a gateway question of arbitrability, and here the parties delegated such questions to an arbitrator. Under the agreement and the incorporated AAA rules, it was improper for an administrator to effectively answer that gateway question or to overlook it altogether by binding the parties to AAA’s views of sound policy.

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    Perez v. Sturgis Public Schools

    Docket: 20-1076 

    Opinion Date: June 25, 2021

    Judge: Thapar 

    Areas of Law: Civil Procedure, Education Law

    When Perez (now 23) was nine, he emigrated from Mexico and started school in the Sturgis. Perez is deaf; the school assigned him a classroom aide who was not trained to work with deaf students and did not know sign language. Perez nonetheless appeared to progress academically. He was on the Honor Roll every semester. Months before graduation, the school informed the family that Perez did not qualify for a diploma—he was eligible for only a “certificate of completion.” Perez filed a complaint with the Michigan Department of Education, citing the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1412, the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Michigan disabilities laws. The ALJ dismissed the ADA and Rehabilitation Act claims for lack of jurisdiction. Before a hearing on the IDEA claim, the parties settled. The school agreed to pay for Perez to attend the Michigan School for the Deaf, for any “post-secondary compensatory education,” for sign language instruction, and for the family’s attorney’s fees. Months later, Perez sued Sturgis Public Schools, with one ADA claim and one claim under Michigan law, alleging that the school discriminated against him by not providing the resources necessary for him to fully participate in class. The Sixth Circuit affirmed the dismissal of the claims. Under the IDEA, the decision to settle means that Perez is barred from bringing a similar case against the school in court—even under a different federal law.

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    Barger v. United Brotherhood of Carpenters & Joiners of America

    Docket: 19-3852 

    Opinion Date: June 25, 2021

    Judge: Batchelder 

    Areas of Law: Labor & Employment Law

    Local 2, representing carpenters and workers in related industries, is a local affiliate of IKORCC, which is an affiliated regional union of UBC. Barger has been a Local 2 member of Local 2. In 2007-2015, he worked intermittently as a carpenter for SPI, whose client owned and operated the Zimmer Power Station. Barger worked at Zimmer in 2014-2015. After being laid off, Barger called Zimmer’s Maintenance Manager, Lind, asking for a job. When Lind rejected Barger’s request, Barger responded that “[SPI is] stealing money from you” by falsifying hours. Barger told Meier, an IKORCC business agent, that he had told Lind about SPI’s overbilling. Barger said that it was worth the harm to other union members “to get even with” SPI. Meier filed a charge with IKORCC against Barger for violating the UBC Constitution by “Causing Dissension,” and failing to use “every honorable means to procure employment for Brother and Sister Members.” IKORCC fined Barger $5,000; UBC vacated the fine. Meanwhile, ESS hired Barger as an independent contractor. ESS assigned Barger to work at Zimmer. When he arrived, he was denied entry. ESS subsequently stopped offering him assignments. Barger sued, alleging violations of his free speech rights under the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 411(a)(2). The district court granted the defendants summary judgment. The Sixth Circuit reversed in part. Barger’s speech is protected by LMRDA section 101(a)(2) under the form-content-context test; the content of Barger’s speech was of union concern. The defendants had not raised the right of a union to adapt and enforce reasonable rules.

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