Affirmative Defenses

News & Analysis as of

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

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

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

Massachusetts Equal Pay Law

Effective January 1, 2018, Massachusetts’ equal pay law will impose new and broad sweeping requirements on employers. At its core, the law prohibits gender-based pay disparities. It also takes steps to encourage transparency...more

How Massachusetts’ New Equal Pay Law Impacts Employers

On August 1, 2016, Massachusetts became the first state to bar employers from asking job applicants about their salary history before making a formal job offer that includes compensation. Under the new law, employers may not...more

Massachusetts Passes Pay Equity Bill Restricting Employers From Inquiring Into Applicants’ Wage History

Massachusetts has passed an amendment to the state’s equal pay law aimed at strengthening prohibitions on gender discrimination in the payment of wages for comparable work. The new bill, signed by Governor Charlie Baker (R)...more

Massachusetts Enacts New Pay Equity Law

Summary - Massachusetts Governor Charlie Baker signed a pay equity bill into law on August 1, 2016. The law is intended to strengthen existing law by promoting compensation transparency, limiting questions to job...more

Massachusetts Governor Signs Expansive Pay Equity Law

As we recently anticipated, on August 1, 2016 Massachusetts Governor Charlie Baker signed into law sweeping legislation that significantly modifies Massachusetts’s equal pay laws. Many consider the new law to be the most...more

Massachusetts Legislature Passes Sweeping Equal Pay Amendments

The law, which the governor is expected to sign, features a new “substantially similar” standard, strict limits on seeking compensation history, and an affirmative defense for good-faith self-evaluations. The General...more

Massachusetts Nearing Enactment of Sweeping Pay Equity Legislation

Continuing a trend, Massachusetts is poised to implement major changes to its equal pay laws. Following the lead of California, New York, and Maryland, which each enacted expansive equal pay laws in the last few months,...more

Poor Policy Publication Revives Sexual Harassment Suit in the Fifth Circuit

Maintaining a company anti-harassment policy on a bulletin board and website is not enough to avoid liability for sexual discrimination according to a recent decision. On July 20, 2016, the Fifth Circuit Court of Appeals...more

Massachusetts Legislature Passes New Pay Equity Law

The Massachusetts Legislature passed new pay equity legislation on July 23, 2016. Governor Baker has been reported to have said that he will sign the legislation. The new law will take effect on January 1, 2018. The...more

When is Aberrant Workplace Behavior Sufficient to Justify Termination?

Aberrant workplace behavior caused by stress or a psychological condition is not uncommon. However, such behavior can also cause employers to become anxious regarding how to lawfully deal with the disruption and its effect on...more

Court Holds Rule 26(b)(1) Cannot be Used for Unpled Claims or Defenses (New York)

Lifeguard Licensing Corp. v. Kozak, 2016 U.S. Dist. LEXIS 68724 (S.D.N.Y. May 23, 2016) - In this intellectual property case, the defendants motioned the court to compel production of various discovery. The plaintiffs...more

Serial Plaintiffs Are Filing Waves of Disability Cases

Hotels, restaurants and retail establishments have been flooded with new lawsuits filed by serial plaintiffs that allege that a property (a place of public accommodation) is in violation of Title III of the Americans with...more

District Court Denies Leave to Amend to Add Implied License Affirmative Defense Where Motion for Leave Was Filed Just Two Months...

Google, Inc. and YouTube, LLC (collectively "Google") filed a motion for leave to amend their answer to include an implied license affirmative defense. Because Google filed the motion to amend its answer more than two months...more

Personnel Investigation By Outside Attorney Protected From Disclosure In Discovery

Seyfarth Synopsis: California Court of Appeal holds that (1) an outside attorney’s investigation can be privileged even though the attorney simply investigated facts, and (2) the employer does not waive the privilege simply...more

FTC Stands Down in Latest Head-to-Head Battle Between Federal and State Oversight of Healthcare Collaborations

In what will undoubtedly be seen by all interested parties as a significant setback in the Federal Trade Commission’s active opposition to potentially anticompetitive healthcare collaborations, the FTC voted unanimously on...more

Jury Acquits Former Pharma Exec in One of the First Post-Yates Memo Health Care Fraud Prosecutions

Like many before it, this year has been one to watch in government health care fraud enforcement efforts. In September 2015, the Department of Justice (DOJ) released the “Yates Memo,” which reaffirmed the government’s...more

Skateboarding Moves Further under the Primary Assumption of the Risk Umbrella

The California Court of Appeal for the Third Appellate District recently upheld a trial court's motion for summary judgment ruling in favor of Sierra Star Community Association ("HOA") and Mammoth Community Water District...more

Nominative Fair Use of a Trademark: The Second Circuit Weighs In

If a defendant in a trademark case uses the plaintiff’s trademark, not to identify the defendant’s own products, but rather to refer accurately to the plaintiff’s products, is that trademark infringement? Called “nominative...more

Second Circuit Highlights Splits on Nominative Trademark Fair Use

The Second Circuit disagrees with sister circuits and rejects arguments that nominative fair use is an affirmative defense that is available even when confusion is likely and that the traditional nominative fair use analysis...more

District Court Denies Request to Have Invalidity Case Proceed Prior to Infringement Case

The parties in this patent infringement action could not agree on the order of proof at trial. Defendants sought to present their invalidity defense first, arguing that if the patent is invalid, they could not be liable for...more

Preference Defendants, Rejoice! Services Billed in a Lump Sum Can Be Allocated Per Diem, for Your New Value Defense

Preference actions are, for the most part, insanity. We won’t go on a tirade here. But recently, a ruling brings common sense to the “new value” defense....more

District Court Strikes Affirmative Defenses of Laches, Waiver, Estoppel and Acquiescence for Lack of Sufficient Detail

After the plaintiff filed a Second Amended Complaint against Fieldpiece Instruments, Inc. ("Defendant") for patent infringement, the Defendant filed its an answer raising a series of affirmative defenses to Plaintiff's...more

EPA Continues to Dismantle Clean Air Act Affirmative Defenses — Blame It On the Judge(s)

On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register. EPA describes most of the changes as “technical corrections,” but there is one important substantive change. ...more

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