• 20 Jul 2021 2:23 PM | Kathi McKeown

    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

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

  • 19 Jul 2021 10:53 AM | Kathi McKeown

    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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  • 19 Jul 2021 10:47 AM | Kathi McKeown

    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

    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

    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

    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

    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

    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

    Change of venue 

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

    New address, same 
    steadfast service. 

    Lawyers Mutual of Kentucky

    10503 Timberwood Circle • Suite 213

    Louisville, KY 40223


    502-568-6103 fax


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