The Sixth Circuit Court of Appeals has denied a request for an en banc rehearing in a lawsuit alleging that the distilleries of two Diageo Americas Supply Inc. brands, J&B® and Johnnie Walker®, caused the growth of a black fungus on outdoor surfaces near the plants. Merrick v. Diageo Ams. Supply Inc., No. 14-6198 (6th Cir., order entered December 7, 2015).

Diageo had sought to dismiss the suit by arguing the claims conflicted with emissions regulations under the Clean Air Act, but a lower court and the Sixth Circuit disagreed upon hearing the arguments. Diageo then requested en banc reconsideration, but the one-page denial noted that “the issues raised in the petition were fully considered upon the original submission and decision of the case.” Details about the case appear in Issues 519 and 546 of this Update.