Burden of Proof

News & Analysis as of

New York Court Sets Aside $11 Million Verdict and Puts the Onus on Plaintiffs to Quantify Exposures to Asbestos

On April 13, 2015, Justice Barbara Jaffe of the Supreme Court, New York County, issued a decision and order granting the motion by Ford Motor Company to set aside the verdict of $11 million in Juni v. A.O. Smith Water...more

UK Consumer Rights Act 2015

The Consumer Rights Act (“the 2015 Act”) received Royal Assent on 26 March 2015 and comes into force 1 October 2015. The 2015 Act aims to reform and consolidate eight pieces of legislation addressing consumer rights in the...more

Attorney Billing Invoices Privileged From Disclosure Under PRA

California Court of Appeal Rules Attorney-Client Privilege Exemption Covers Billing Invoices - Billing invoices sent by an attorney to a client are exempt from disclosure under the California Public Records Act, a...more

Anatomy of a Provider-Merger Antitrust Challenge (Part 5)

This is the fifth in a six-part series discussing the Federal Trade Commission's challenges to provider mergers. Following the initial Introduction and Background (Part 1), the series discusses The Need for Early Legal Advice...more

Supreme Court Creates New Framework for Deciding Pregnancy Discrimination Claims

What you need to know: The US Supreme Court recently decided a case where it created a new framework for proving pregnancy-related discrimination, making it easier for cases to reach a jury....more

In Employment Litigation, the Best Defense is a Good Defense

It’s a busy week in employment law. Yesterday, the U.S. Supreme Court case decided Young v. UPS — a case about pregnancy discrimination. I’ll have more on that case in an upcoming post. But in today’s post, my colleague Chris...more

What’s Your Workplace Retaliation IQ?

It’s been a while since we’ve had an employment law quiz, so let’s do it! This one is on retaliation. As always, the answers will be provided after each question — you have our “no-pressure” guarantee....more

CT Law of the Land

AC36196 - Verrillo v. Zoning Board of Appeals - Attorneys who practice in the land-use arena know that there is often a divergence between how local Zoning Board of Appeals (“ZBAs”), comprised of lay members, view...more

In Ordering Disgorgement in SEC Cases, Courts Have Discretion, but Not That Much Discretion

When defendants argue in federal court against the SEC’s calculation of a disgorgement figure, they hear a lot of this: “A district court has broad discretion to order disgorgement of profits obtained through...more

California Supreme Court Reaffirms High Bar for Reversal of Arbitration Decision

Avery Richey v. AutoNation, Inc., et al. - Supreme Court of California (January 29, 2015) - Generally, courts cannot review arbitration awards for errors of fact or law, except as provided for under limited...more

Florida Whistleblower Act Objector Must Prove an Actual Violation of Law, Says Second DCA

The Florida private sector Whistleblower’s Act protects employees who object or refuse to participate in a violation of a law, rule or regulation by their employer. ...more

The NLRB Issues Key Rulings Regarding Employee E-Mail Use, Deferrals To Arbitration, And Representation-Case Procedures

The 2014/2015 holiday season marked a period of change for the National Labor Relations Board (NLRB). First, on December 11, 2014, the NLRB ruled that under Section 7 of the National Labor Relations Act (NLRA) employees can...more

Patent Owner: Preponderance of Evidence Standard Can Never Be Met Without Expert Testimony

In IPR2013-00357, Patent Owner Overland Storage, Inc. filed a request for rehearing of the final written decision holding that claims 1-11 of U.S. Patent No. 6,328,766 are unpatentable. The basis for the patent owner's...more

Florida Courts Offer Different Opinions on "Policy Conditions"

Several recent Florida decisions have addressed the distinction between “conditions precedent” and “conditions subsequent” in insurance policies and the impact of that distinction on issues of prejudice and burden of proof at...more

Making a Record in Support of CAFA Removal to Federal Court

The Eleventh Circuit’s decision in Dudley v. Eli Lilly and Co., 2014 WL 7360016 (11th Cir. Dec. 29, 2014), highlights the risk of waiving (or, at a minimum, postponing) an otherwise proper removal by not creating a proper...more

BB&K Police Bulletin: Burden of Proof on Government in Request for Return of Property Not Considered Contraband

Ninth Circuit Decides There Must Be “Legitimate Reason” for Retaining Property - Overview: The Ninth Circuit recently held that, once a criminal investigation or prosecution is completed, the government bears the...more

Intellectual Property 2014 Year In Review

There were a number of notable developments in patent case law in 2014. Key decisions from the Federal Circuit and Supreme Court tackled a variety of key issues, including patent eligibility of software and business methods,...more

Warning! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk

Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the...more

Florida’s Second District Evaluates Burden of Proof in Sinkhole Cases

In Mejia v. Citizens Prop. Ins. Corp., 2014 Fla. App. LEXIS 19526 (Fla. Dist. Ct. App. 2d Dist. Nov. 26, 2014), the Second District reversed a Pasco County trial court’s determination on the burden of proof applicable to a...more

Higher burdens in SOX whistleblower retaliation claims - 5 tips for employers

Two recent decisions have clarified the heightened burden facing employers addressing whistleblower retaliation claims under Section 806 of the Sarbanes-Oxley Act (SOX). On October 9, 2014, in Fordham v. Fannie Mae,...more

Proceed With Caution – Indiana Property Tax Appeals: Burden Of Proof Shifts For “Aberrational” Assessments; Appealing $50 Penalty...

A 5%+ assessment increase is “aberrational” where the property has not substantially changed year-to-year, so the Assessor carries the burden of proof. I have previously posted about Indiana’s adoption of a burden-shifting...more

Florida Court: Under All-Risk Policy, Insured Does Not Bear Burden of Showing Loss Was Caused by a Sinkhole

On November 26th, a unanimous panel of Florida’s Second District Court of Appeals held that a trial judge had erred in placing the burden of showing that loss was caused by covered sinkhole activity on the shoulders of the...more

Illinois Supreme Court Debates Burdens of Proof for Wrongful Termination Cases

During its September term, the Illinois Supreme Court heard oral argument in a potentially important employment law case, Michael v. Precision Alliance Group, LLC. Michael poses questions about the parties’ burdens of proof...more

Administrative Review Board Clarifies Causation Burdens in SOX Whistleblower Cases

The ARB recently clarified the competing burdens of proof on issues of causation for whistleblower retaliation cases arising under SOX Section 806 and other whistleblower protection statutes. In particular, in Fordham v....more

PTAB Provides Guidance for Meeting Burden to Show Written Description for Substitute Claim

September 24, 2014 – In a Final Written Decision finding the patentee’s claim 1 unpatentable, the PTAB denied a motion to add a substitute claim that added hundreds of words to challenged claim 1. The PTAB held that the...more

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