Pursuant to Rule 35 of the Federal Rules of Appellate Procedure and Sixth Circuit Rule 35, a majority of the active judges of this court voted to grant en banc review of this case. By published order of the court, entered on June 25, 2021, rehearing en banc was granted and the previous opinion was vacated. Following argument heard by the court en banc on October 20, 2021 and a conference among the judges, the court divided evenly, with eight judges voting to affirm the judgment of the district court and eight judges voting to reverse. Consequently, the judgment of the district court is AFFIRMED. See School Dist., Pontiac v. Secretary, U.S. Dep’t. Educ., 584 F.3d 253 (6th Cir. 2009), Goodwin v. Ghee, 330 F.3d 446 (6th Cir. 2003), and Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir. 1996). Separate opinions in favor of affirmance and in favor of reversal follow.

SUTTON, Chief Judge. Arabian Motors Group and Ford Motor Company have been in and out of arbitration and federal court for nearly six years with respect to the same dispute. At issue at this stage of the case is whether the district court should have stayed or dismissed this federal court action to permit the remaining claims to be arbitrated under the Federal Arbitration Act. On this record, the court should have stayed the action. We reverse the district court’s contrary decision.

The defendant, Tim Gilbert, appeals his Giles County Circuit Court Jury convictions of aggravated assault, reckless endangerment, unlawful possession of a weapon by a convicted felon, and resisting arrest, challenging the sufficiency of the convicting evidence and the rulings of the trial court permitting the State to amend the indictment and to admit the pretrial statement of a State’s witness as substantive evidence in violation of the rule against hearsay. The defendant also argues that permitting both the grand and petit juries to deliberate in a room in the Giles County Courthouse maintained by the United Daughters of the Confederacy (“U.D.C.”) and adorned with various mementos of the Confederacy exposed the jury to extraneous prejudicial information and violated his constitutional rights to a fair trial conducted by an impartial jury, due process, and equal protection under the law. The trial court did not err by permitting the State to amend the indictment because the amendment did not allege a new or different offense. The court did err, however, by admitting the challenged witness statement, and that error cannot be classified as harmless. Further, we conclude that the Confederate memorabilia in the jury room was extraneous information and that the State failed to rebut the presumption that the petit jury’s exposure to that extraneous information was prejudicial. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

A property owner whose property was destroyed by a lightning-induced fire filed suit against the State on the theory of negligence. The Claims Commission dismissed the case after concluding that any negligence on the part of the State was not the proximate cause of the property owner’s injury. Finding no error, we affirm the decision of the Claims Commission.

This is the second interlocutory appeal in this case in which the employee sustained serious injuries when a severe coughing episode precipitated by inhaling vapor from an electronic cigarette resulted in his falling from a wall on which he had been sitting in a designated smoking area near his workplace. In the first appeal, we vacated the trial court’s expedited hearing order because the court did not address the employee’s claim for temporary disability or medical benefits. Upon remand, the parties jointly submitted the employee’s medical records and medical bills and “designated” issues for the trial court’s second expedited hearing, including whether the employee is entitled to medical benefits for the initial treatment he received and whether he is entitled to temporary disability benefits. In its second expedited hearing order, which was a decision on the record, the trial court determined the employee is likely to prevail at trial in establishing he suffered an injury arising primarily out of and in the course and scope of employment and awarded the employee certain medical and temporary disability benefits. The employer has appealed. Discerning no error, we affirm the trial court’s order and remand the case.

RALPH B. GUY, JR., Circuit Judge. Eight named plaintiffs, among them two minors, brought this nationwide putative class action against e-commerce provider StockX for allegedly failing to protect millions of StockX user’s personal account information obtained through a cyber-attack in May 2019. The district court granted StockX’s motion to dismiss the action and compel arbitration. Plaintiffs have appealed, arguing that there is an issue of fact as to whether four of the plaintiffs agreed to the current terms of service and that the defenses of infancy and unconscionability render the terms of service and the arbitration agreement (including the delegation provision) invalid and unenforceable. Because we conclude that a contract exists and that the delegation provision itself is valid, the arbitrator must decide in the first instance whether the defenses of infancy and unconscionability allow plaintiffs to avoid arbitrating the merits of their claims. Accordingly, we AFFIRM.

A Lauderdale County jury convicted the Defendant, G’Wayne Williams, of numerous sexual offenses. State v. G’wayne Kennedy Williams a/k/a Kenney Williams, No. W2018- 00924-CCA-R3-CD, 2020 WL 211546, at *1 (Tenn. Crim. App, at Jackson, Jan. 14, 2020). The trial court imposed a sixty-four-year sentence. Id. On appeal, this court vacated and dismissed fifteen of the Defendant’s convictions and concluded that the trial court had improperly merged a number of the Defendant’s convictions. We remanded the case for entry of corrected judgments and resentencing where applicable and affirmed the Defendant’s remaining convictions. Id. On remand, the trial court dismissed the relevant convictions, merged the additional relevant convictions, and resentenced the Defendant on twelve of the convictions. The trial court concluded that it had lost jurisdiction as to the Defendant’s remaining convictions affirmed on appeal. On this second appeal, the Defendant asserts that the trial court erred in finding it had lost jurisdiction on the convictions affirmed by this court. He further contends his sentence is excessive. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

The defendant, Carl Dwayne Prince, appeals his Robertson County Circuit Court Jury conviction of aggravated assault, arguing that the trial court erred by finding a valid waiver of the right to counsel and permitting him to proceed pro se, that the evidence was insufficient to support his conviction, and that the State’s failure to disclose certain evidence violated due process principles as announced in Brady v. Maryland, 373 U.S. 83 (1963). Because the trial court failed to conduct a sufficient inquiry to support a finding that the defendant effectuated a valid waiver of the right to counsel, the defendant is entitled to a new trial. Because the evidence was insufficient to support a conviction of aggravated assault but sufficient to support a conviction of simple assault, the judgment of the trial court is reversed, and the case is remanded to the trial court for a new trial on alternative counts of assault involving bodily injury and assault by offensive touching.

A Tipton County jury convicted the Petitioner, Keith Lamont Brown, of delivery of 0.5 grams or more of cocaine, and the trial court sentenced him as a Range III, persistent offender to twenty-five years of incarceration. The Petitioner appealed his convictions to this court, and we affirmed the judgments. State v. Keith Lamont Brown a.k.a. “Kee Kee”, No. W2018-00731-CCA-R3-CD, 2019 WL 2158103, at *6 (Tenn. Crim. App., at Jackson, May 16, 2019), no perm. app. filed. Subsequently, the Petitioner filed a petition for post- conviction relief, claiming that he received the ineffective assistance of counsel, which the post-conviction court denied after a hearing. After review, we affirm the post-conviction court’s judgment.

Defendant, Eric Boyd, was convicted of two counts of first degree felony murder, two counts of aggravated robbery, two counts of especially aggravated kidnapping, and four counts of aggravated rape. For his convictions, Defendant received an effective sentence of two consecutive life sentences for the felony murder convictions and an additional 90 years for the remaining convictions. Defendant appeals his convictions, asserting that: 1) the trial court erred by denying Defendant’s motion for a change of venue, or in the alternative, a special jury venire; 2) the trial court erred by allowing the State to introduce transcripts of a witness’s testimony from a federal court proceeding as substantive evidence against Defendant; 3) the evidence was insufficient to support Defendant’s convictions; and 4) he is entitled to relief under the cumulative error doctrine. After a thorough review of the record, we determine no error. Accordingly, we affirm the judgments of the trial court.