Affirmative Defenses

News & Analysis as of

Begin with the End in Mind: Collaboration with Outside Counsel in Preparing Trial-Ready Initial Pleadings

If there is a secret to effective business litigation, it is planning early and well – as early as preparing the complaint or, for defendants, their answer and defenses. While a cogent, powerful opening pleading has always...more

Court Rules on Antitrust Claims Arising from Changes to Electricity Pricing Plans for Home Solar Users

A federal court allowed certain antitrust and state law claims brought by an installer of distributed solar energy systems against Arizona’s Salt River Project Agricultural Improvement and Power District (SRP) to move forward...more

Government contractor industry brief urges Fourth Circuit to reaffirm “battlefield contractor” tort-suit defenses

On October 29, 2015, Dentons filed an amicus brief with the Fourth Circuit Court of Appeals on behalf of its clients, the Professional Services Council—The Voice of the Government Services Industry and the Coalition for...more

The Katten Kattwalk - Issue 08

The Katten Kattwalk discusses legal issues in the fashion industry affecting the trademarks, patents and copyrights associated with companies, brands and products. Letter From the Editor - Fashion Week has come and...more

Premises Liability Claims at the Ballpark

When you attend a baseball game with your family, are you at risk of sustaining a serious injury? If you do get hurt, can you bring a premises liability lawsuit, alleging that the owner of the stadium or the team was...more

New OFCCP changes to federal contractor pay practices

September was a busy month for federal contractors due to new regulatory requirements. Earlier last month, we told you about President Obama’s new executive order requiring covered government contractors to provide their...more

Despite Ruling, Free Speech Statute Continues To Offers Some Defenses

In two prior posts this week I talked about the significance of a new Connecticut Supreme Court case that has expanded the free speech rights of employees in the workplace. But do employers have any other defenses to...more

Ninth Circuit Clarifies Copyright Holder’s Responsibility When Sending A Takedown Notice Under The DMCA

In July, this author wrote about Lenz v. Universal which, at the time, was pending before the 9th Circuit. On September 14, 2015 the 9th Circuit came down with a ruling which answered whether a copyright owner must consider...more

The Changing Compensation Landscape for Government Contractors: New Executive Order Mandates Paid Sick Leave for Employees of...

Two recent developments have added to the list of the Obama Administration’s compensation-related initiatives. On Labor Day, September 7, 2015, President Obama issued an Executive Order that will require federal contractors...more

4 Defenses to Employee Defamation Claims

The Recorder reports an uptick in defamation claims by fired employees. These claims are often in the form of plaintiffs saying that their bosses gave others false reasons for their firing. These types of claims strike fear...more

Intellectual Property Alert: Laches Remains a Defense to Legal Relief in Patent Infringement Suits

On September 18, 2015, the Court of Appeals for the Federal Circuit, sitting en banc, ruled (6-5) in SCA Hygiene Products AB et al. v. First Quality Baby Products LLC et al., that laches remains a viable defense in a patent...more

The DOL Announces Final Rule for the Obama Administration’s 2014 Pay Transparency Executive Order

As we’ve previously covered here, on April 8, 2014 President Obama signed Executive Order 13665 (“Non-Retaliation for Disclosure of Compensation Information), at an event commemorating National Equal Pay Day, an annual public...more

Intellectual Property Alert: DMCA Takedowns Require Consideration of Fair Use

The U.S. Court of Appeals for the Ninth Circuit has held that copyright holders must at least consider fair use before issuing a takedown notice under the Digital Millennium Copyright Act (DMCA). The decision, in Lenz v....more

Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part II

Other courts take a different view. In Bacchi v. Massachusetts Mutual Life Insurance Co., defendant resisting a policyholder class action filed affirmative defenses "that it acted in good faith . . . and that its actions were...more

Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part I

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that...more

Federal Court Denies Religious School’s Request for Temporary Restraining Order

A few weeks ago, we reported on a new RLUIPA suit arising in Genoa Charter Township, Michigan, where Livingston Christian Schools is suing the Township over the denial of a special land use permit to operate a religious...more

New Jersey Superior Court Has Concurrent Jurisdiction to Decide Employment Status Under Workers’ Compensation Act, New Jersey...

The New Jersey Supreme Court recently held that the Superior Court of New Jersey has concurrent jurisdiction with the New Jersey Division of Workers’ Compensation to adjudicate a worker’s employment status for purposes of...more

“Force of Nature” or Human Error? Litigating the Act of God Defense

The cause of the plaintiff’s damages is typically the first and most critical question posed to a jury in a product liability trial. If a jury determines that a substantial factor in the cause of the plaintiff’s damages was a...more

IP Law Tracker Docket Review

Each month, we review significant intellectual property decisions from the U.S. Court of Appeals for the Sixth Circuit and the U.S. District Courts for the Eastern District and Western District of Michigan. Below is the...more

Equitable Conduct Affirmative Defense Is Stricken

The court finds that defendants’ inequitable conduct defense is not plausible since it is based solely on plaintiff’s failure to disclose information related to the Interference. The court finds that the BPAI terminated the...more

Octane Fitness Changed the Standard for Attorney’s Fee Award, but Has Anything Changed?

It’s no secret, lawsuits can be expensive. That’s why parties frequently consider the availability of recovering attorney’s fees when deciding whether to pursue (or defend) a lawsuit. While attorney’s fees have been available...more

Where’s the Beef Part II: Court Refuses To “Butcher” EEOC’s Religious Discrimination Claim

Our loyal blog readers may recall a post we authored in October 2013 regarding EEOC v. JBS USA, LLC (the “Nebraska Case”), where Chief Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska entered...more

EPA nixes state exemptions on excess CAA emissions

Affirmative defenses commonly relied upon by facility operators to avoid civil and administrative penalties for violations of air emissions limitations during periods of facility startup, shutdown or malfunction (“SSM”) may...more

Making Straight the Road: Case Litigation Plans as a Means of Efficiency and Predictability in the Tennessee Business Court

Tennessee’s recently-convened Davidson County Business Court will adjudicate business litigation in Nashville and may hear business cases from around the state with the consent of both parties. The Business Court’s stated...more

Eastern District of Pa. Again Recognizes Montreal Convention Exclusively Governs Claims

Action Item: Until there is appellate resolution of the preemptive effect of the Montreal Convention, airlines sued in state court over damages allegedly arising during the course of international transportation should...more

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