Affirmative Defenses

News & Analysis as of

Checklist of Affirmative Defenses for NC Comp Claims

Although arguably the most important determination an adjuster makes when a claim is filed is whether or not the claim is compensable, before even contemplating that question, the adjuster should consider whether or not the...more

Strategies for Minimizing Risk of Privacy Class Actions

Businesses are increasingly facing class action lawsuits alleging they have violated someone’s privacy, including under state or U.S. laws. Most states have privacy statutes, including California with its Invasion of Privacy...more

With Respect to Discoverability, Indiana Federal Court Distinguishes Between Pre-Suit and Post-Suit Reserves

In May, we reported on a Third Circuit decision holding that loss reserve information was generally irrelevant and not discoverable. In October, a federal court in Indiana came to the same conclusion with respect to...more

PTAB Adopts Broad View of Inherency Doctrine

Ariosa Diagnostics v. Isis Innovation Ltd. - Addressing a variety of issues in a recent inter partes review (IPR), the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) determined that...more

Federal Court States Rationale for U.S. Take of California Land a “Sham”

The question now is, is the court’s statement merely a bump in the road or a roadblock? The United States filed the eminent domain action seeking to condemn certain access rights so it could increase its profitability when...more

EPA Reverses Course on Malfunctions

EPA proposes eliminating all startup, shutdown and malfunction affirmative defense provisions from SIPS. On September 17, 2014, the United States Environmental Protection Agency (EPA) issued a supplemental notice of...more

Is the Commil Defense Underutilized in Patent Cases?

It has now been more than a year since the Federal Circuit rendered its decision in the Commil case providing a defense to the intent prong for active inducement of patent claims. At the time of the decision there were a...more

White Collar Watch - October 2014

In This Issue: - Government demonstrates willingness to enforce Affordable Care Act provision that could cost providers millions of dollars - Words can come back to haunt you: Boilerplate pleading could lead...more

Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims

A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the antitrust laws – a result that may soon collide with rulings...more

Northern District of Illinois Applies Twombly/Iqbal Pleading Standard to Affirmative Defenses in TCPA Case

In a TCPA action involving allegedly unsolicited fax advertisements, the Northern District of Illinois applied the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal,...more

Battle of the Experts Still Brewin’ in Starbucks Trial

In April 2010, the Council for Education and Research on Toxics (CERT) sued Starbucks Corp. and other coffee sellers alleging they violated California’s Safe Drinking Water and Toxic Enforcement Act, passed by California...more

Don't Throw The Kitchen Sink Of Defenses Into Your Answer

Say you are filing an Answer to a Complaint. NC Rule of Civil Procedure 8(c) lists a host of affirmative defenses you might raise. They are: accord and satisfaction, arbitration and award, assumption of risk,...more

North Carolina Supreme Court Upholds Enforceability of Waiver of ECOA Claim

Last month, the North Carolina Supreme Court issued an important opinion for lenders in this state. The opinion reversed the North Carolina Court of Appeals’ decision in RL REGI N.C., LLC v. Lighthouse Cove, LLC, which found...more

Supreme Court’s Footnote About Auckerman in Petrella v. Metro-Goldwyn-Mayer, Inc. Does Not Create New Law: Cordis’s Laches Defense...

Medinol Ltd., v. Cordis Corporation and Johnson & Johnson Case Number: 1:13-cv-0148-SAS In March, Judge Scheindlin found that laches formed a complete defense for Cordis in this matter. Medinol did not appeal...more

Court Holds That Twombly/Iqbal Pleading Standard Does Not Apply to Affirmative Defenses in TCPA Case

In a TCPA action concerning allegedly unsolicited fax advertisements, the Eastern District of Michigan recently rejected the argument that the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544...more

Seven Key Supreme Court Cases for Retailers to Watch

The Supreme Court of the United States is ending its summer recess and will start hearing oral arguments next week. There are seven key cases on the Court’s docket for the current term that could affect retailers. Here is a...more

More Empty Words for an FCPA Compliance Defense

It is hard to understand why there are still advocates for an FCPA compliance defense. The issue is dead and gone, and is unlikely to come back in any form. I guess there are people who enjoy “zombie” movies – for the life of...more

EPA Proposes to Eliminate Affirmative Defenses for Many Clean Air Act Violations

The U.S. Environmental Protection Agency (EPA) issued a proposed rule on September 5, 2014 that would prevent states from including affirmative defenses in their Clean Air Act state implementation plans (SIPs) for emissions...more

U.S. Bank v. Indian Harbor: Insurers Face Another Restitution/Disgorgement Setback

In a recent decision, the United States District Court for the District of Minnesota held that insurers could not use the so-called restitution/disgorgement defense to avoid covering amounts that their insured bank agreed to...more

EPA Proposes to Eliminate Affirmative Defenses for Excess Emissions During Startups, Shutdowns, or Malfunctions — Get Ready for...

This past April, the D.C. Circuit struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As we noted at...more

Limits of Expansive Protection of New York’s In Pari Delicto Defense

Whenever a company tumbles into bankruptcy following the discovery of its management’s financial misdeeds, firms that provided the company with accounting, legal, banking and financial advisory services should prepare to...more

The Art of Defending Preferential Transfers – Part Two: The Defenses

Learning how to defend a preferential transfer action is a particularly useful art for the credit professional. In Part One, we discussed the Bankruptcy Code’s specific requirements that must be established by the debtor or...more

The Government Contractor Defense

The government contractor defense is a potentially dispositive defense that can be raised by contractor-defendants in certain product liability cases. Understanding the basics of this defense, and in particular the...more

Affirmative Defenses Must Be Addressed In Class Certification Order, According To Texas Court of Appeals

A recent decision of the Texas Court of Appeals in Austin (Third District) caught my eye. Not because it involved insurance; rather, it was a securities class action challenging a board of directors’ approval of a corporate...more

ERISA: 6th Circuit — Benefit Denial Letters: Include The Time Limit For Judicial Review Or Lose Contractual Limitations Defense

Does your ERISA claim benefit denial letter preserve the contractual limitations defense? If your denial letter fails to expressly state the contractual limitations timeframe, it might not preserve that defense. ...more

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