News & Analysis as of

Affirmative Defenses

Court of Appeal Defines Good Faith Defense Under The UFTA

by Allen Matkins on

In 2015, the California legislature refurbished the Uniform Fraudulent Transfer Act and rechristened it as the Uniform Voidable Transactions Act. 2015 Cal. Stats. Ch. 44 (SB 161 (Vidak)). The UFTA has not left the stage...more

New Fair Employment and Housing Act Regulations Further Limit Consideration of Criminal History in Employment Decisions

Considering criminal records when making employment decisions has long been the subject of scrutiny, and will soon be governed by new California regulations. On March 27, 2017, the California Office of Administrative Law...more

N.D. Indiana: Employer Bears Burden of Proving Whistleblower Exhausted Administrative Remedies

On February 1, 2016, the Northern District of Indiana ruled in a case brought under the Federal Railroad Safety Act (FRSA) that whether a whistleblower has fulfilled relevant administrative requirements prior to filing suit...more

Missouri Court of Appeals Holds Ingredient List Label on Product Not an Absolute Defense to Claim for Deceptive Merchandising...

by Williams Venker & Sanders on

Murphy v. Stonewall Kitchen, LLC, No. 104072 (November 8, 2016)- The Missouri Court of Appeals, Eastern District, reversed a trial court’s order dismissing an action on the grounds that an ingredient list label was a...more

Ninth Circuit Further De-Fangs Spokeo in a TCPA Case; Gives Practical Revocation Guidance for the First Time

by Dorsey & Whitney LLP on

The important TCPA cases keep rolling in. Yesterday the Ninth Circuit issued a big new decision addressing three of my favorite topics: Spokeo, express consent, and revocation. ...more

Real Property & Title Insurance Update: Week Ending January 13, 2017

by Carlton Fields on

REAL PROPERTY UPDATE - Foreclosure: where a valid mortgage properly encumbers the subject property, an incorrect deed and a reformation of deed count are not fatal to a foreclosure action - Heartwood 2, LLC v. Dori, Case...more

Careful Drafting of Non-Competes and Other Restrictive Covenants Can Save the Day

by Burns & Levinson LLP on

It generally is a defense to a breach of contract claim if the defendant proves that the plaintiff was the first one to materially breach the parties’ agreement. As a recent case from the Business Litigation Session of the...more

Federal Court Rejects Defend Trade Secrets Act Whistleblower Immunity Defense on a Motion to Dismiss and Orders Employee to Return...

by Seyfarth Shaw LLP on

This past Spring, we reported on the recently enacted Defend Trade Secrets Act (“DTSA”), which provides a new federal civil cause of action to trade secret owners seeking to pursue claims of trade secret misappropriation. ...more

Supreme Court Corner - Q4 2016

by DLA Piper on

CASES WE ARE WATCHING Lenz v. Universal Music Corp. - COPYRIGHT – Cert. Pending ISSUE: Whether, in sending a takedown notice under the DMCA, the copyright holder’s “good faith belief” of copyright infringement may be...more

Commercial Division Refuses to Disturb Judgment Based On “Newly Discovered” Evidence That Was Available in Russian Public Records...

What is the ability of a litigant in the Commercial Division to use evidence located in the public records outside of the United States to re-open a New York court judgment? On December 7, 2016, in Alexander Gliklad v....more

Anything is (Im)Possible: Applying the “Impracticability” Defense to the Tennessee Wildfires

by Butler Snow LLP on

The nation recently watched the unfortunate wildfires that overtook Gatlinburg, Pigeon Forge and the Great Smoky Mountains in East Tennessee. The unstoppable flames engulfed those beautiful towns and mountains and left ashes...more

Establishing the Due Diligence Defence Under CASL

by Bennett Jones LLP on

Despite being in force for over two years, many of the key provisions of Canada's Anti-Spam Legislation (“CASL” or the “Act”) remain shrouded in uncertainty. One such provision, for example, is the Act’s due diligence...more

Clarity on Clawback Claims in Cayman

by Kobre & Kim on

The Cayman Islands Court of Appeal recently smoothed the path for Cayman liquidators to pursue clawback claims. The decision clarifies the Cayman courts’ approach to voidable preference payments, making it easier for Cayman...more

Smoking Out the Scope of Preemption

by Reed Smith on

Last month, while grappling with an aphrodisiac false-advertising case, we joked that we felt like having a cigarette after reading the court’s opinion. Today we get our cigarette. Or, rather, our e-cigarette. Today’s post...more

Filing a Collection Suit? The Statute of Limitations for the Forum State May Not Be the Correct Limitations Period

Debt collectors filing suit often assume that the forum state’s statute of limitations will apply. However, a string of recent cases suggests that may not always be the case. The Ohio Supreme Court recently determined that,...more

New York Rejects Antitrust Defense To Breach Of Distribution Contract

Your client is sued for failure to pay on a contract and says it shouldn’t have to pay because the prices were fixed by a cartel or that it was strong-armed into paying for a “bundle” of services or distribution channels even...more

Seventh Circuit Eases ERISA Plaintiffs’ Pleading Burden Against Private Company Plan Fiduciaries

by Cozen O'Connor on

On August 25, 2016, the U.S. Court of Appeals for the Seventh Circuit, in Allen v. GreatBanc Trust Co., No. 15-3569, 2016 WL 4474730 (7th Cir. 2016), held that (1) the defendant in an ERISA case, rather than the plaintiff,...more

The Eleventh Circuit has spoken: “Debtors who surrender property must get out of the creditor’s way”

In recent years, there has been a hotbed of litigation across the nation, particularly in Florida state and bankruptcy courts, regarding a debtor’s ability to contest a secured creditor’s foreclosure notwithstanding the...more

Banking Disputes Quarterly Q3 2016

by DLA Piper on

A recent Supreme Court judgment con rms that claims for malicious prosecution of civil proceedings can be brought under English law. It was previously unclear whether malicious prosecution claims were limited to the conduct...more

Magistrate Judge Love Denies Motion for Summary Judgment as To Defendants’ Affirmative Defenses and Counterclaims Related to...

On August 23, 2016, Magistrate Judge John Love in the Eastern District of Texas denied plaintiffs’ motion for summary judgment as to defendants’ affirmative defenses and counterclaims. These defenses and counterclaims related...more

Litigation Update: Answer Filed in AbbVie v. Amgen

by Goodwin on

Amgen has filed its answer in response to AbbVie’s complaint alleging infringement of 10 patents that allegedly cover Amgen’s recently-approved adalimumab biosimilar, Amjevita (formerly known as ABP501). Amgen asserts...more

Tort reform, apportionment and immunity

by Reminger Co., LPA on

Applying Ohio’s tort reform legislation to a situation where a non-party is immune from the tort liability in issue has resulted in contradictory holdings. This article originally appeared in the 2016 September/October...more

Real Property & Title Insurance Update: Week Ending August 19 & 26, 2016

by Carlton Fields on

Real Property Update: - Lis Pendens/Subsequent Liens: lis pendens statute only serves to discharge liens that exist or arise prior to entry of foreclosure judgment but does not affect liens that arise after entry of...more

Do not break the trust after a trust is created - The law on concurrence examined

by Dentons on

Dentons Rodyk acted for Mdm Harianty Wibawa, the settlor of an offshore discretionary trust which has a value exceeding US$45 million (taking into account distributions of some US$10 million). One of the beneficiaries and the...more

Environmental Notes - August 2016

by Williams Mullen on

Time to Pay More: EPA Increases Maximum Civil Penalties - Remember the days when the maximum civil penalty EPA could assess for a violation of environmental law was $25,000 per day? Those days disappeared 26 years ago...more

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