Burden of Proof

News & Analysis as of

Take-Off Denied for Airline Fuel Surcharge Class Action

Last week, the British Columbia Supreme Court dismissed five class action certification applications in Unlu v. Air Canada (Unlu), which were brought against airlines regarding the manner in which fuel surcharges are...more

Federal Reserve Board Issues Clarification on Treatment of Transactions-Monitoring Costs Under Regulation II

On August 14, 2015, the Board of Governors of the Federal Reserve System (the Board) published a clarification (the Clarification) of the Board’s decision to include transactions-monitoring costs in establishing the 21-cent...more

Five Lessons From 2015 Healthcare Deals

In 2015, we already have seen a great deal of activity in healthcare transactions that is attracting antitrust scrutiny, with mixed results. Among the winners have been Cabell and St. Mary's, which received state clearance...more

Illinois Appellate Court Reverses Asbestos Verdict on Sole Proximate Cause Argument

In Smith v. Illinois Central Railroad Co., the Fourth District of Illinois recently overturned a $1.4 million verdict against the Illinois Central Railroad. At trial, the Court had excluded evidence of the decedent's work at...more

Flushing Out the Safe Harbor: “General Land Area Minimum” Offers Newton No 40B Shelter

Municipalities long unable to achieve ten percent affordable housing are now turning more frequently to a different Safe Harbor to block development of low and moderate income housing – compliance with the “General Land Area...more

Supreme Court Holds That Disparate-Impact Claims are Available Under the FHA

The Fair Housing Act (FHA) prohibits lenders, brokers, landlords or any other person from discriminating against a person seeking to rent, purchase or secure financing on a home. The FHA specifically prohibits discrimination...more

No Damages Awarded for ERISA Plan Fund Mapping Claims

Mapping in a 401(k) plan occurs when an investment option is removed and the participant’s investment in that option is transferred to a different investment option (absent direction from the participant). On remand from the...more

Disparate Impact is Here to Stay: What the Supreme Court's Decision Means for the Multi-Family Industry

On June 25, 2015, Justice Kennedy delivered the Supreme Court’s decision in Texas v. Inclusive Communities Project. In the case, the Court determined that the Fair Housing Act of 1968 includes disparate impact claims. Prior...more

Supreme Court Affirms FHA Disparate Impact Claims

Late last month, the Supreme Court handed down a significant decision affecting rights and obligations under the Fair Housing Act. The Court’s 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive...more

Fraudulent Transfers Get an Update in California

Why it matters - With the enactment of the Uniform Voidable Transaction Act (UVTA) to supersede the Uniform Fraudulent Transfer Act (UFTA), California has put a fresh spin on the law of fraudulent transfers in the state....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

Dispositions légales et jurisprudence incontournables du 1er semestre 2015 en matière de droit social en France - Juillet 2015; A...

Vous avez peut être manqué certains développements récents… Cette lettre d’information rassemble quelques évolutions majeures du premier semestre 2015 en France en droit du travail. Les demandes de dommages et...more

Writing on Her Own Behalf, Chairwoman Ramirez Takes a Position on FRAND

Federal Trade Commission (FTC) Chairwoman Edith Ramirez took the unusual step on July 13, 2015, of filing a written submission on her own behalf — and expressly not on behalf of her agency — in Investigation No. 337-TA-613,...more

Creative Use Of The California Anti-SLAPP Statute To Idea Submission Claims: Stay Tuned

The Purge is a motion picture in which a fictional U.S. government has established an annual twelve hour period called “the purge” in which all crime is legalized and no emergency services are available. And, for the last...more

Supreme Court Denies Review of Fourth Circuit Loss Causation Case

The U.S. Supreme Court recently declined to grant certiorari to review the Fourth Circuit’s decision in RJR Pension Investment, et al. v. Tatum, 761 F.3d 363 (4th Cir. 2014). As we previously reported, a divided panel of the...more

Developers: Beware of Disparate Impact After Supreme Court Ruling

Following the Supreme Court’s decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, state agencies and real estate developers should carefully consider the effects of their low-income...more

All is Fair in Lovell and Litigation

Most California construction attorneys know, or should know, that you need to “prove” you’re a licensed contractor in a construction case. And, by “prove,” that means more than simply alleging in a pleading that you are...more

Solicitor General Urges Supreme Court to Decline to Hear Breach of Fiduciary Duty Case

On June 25, 2015, the U.S. Supreme Court will decide whether to grant certiorari in Tatum v. RJR Pension Investment Committee, 761 F.3d 346 (4th Cir. 2014). As discussed in the September 29, 2014 edition of the ELU, Tatum...more

Tax Court Shifts Burden Of Proof To Assessor But Upholds Commercial Land Assessment Based On Application Of The Indiana Guidelines

In Peters v. Boone County Assessor (May 14, 2015), Taxpayers challenged the assessment of land supporting an office building for the March 1, 2010 assessment date. The land was .16 acre, but the Assessor previously had only...more

Labor Commissioner's Uber Decision: A Reminder of Misclassification Dangers

On June 3, 2015, the California Labor Commissioner ruled that a San Francisco-based driver for the popular ride coordination service Uber Technologies, Inc. (“Uber”), was an employee rather than an independent contractor....more

Berwick V. Uber: Small Decision, Uber-Sized Headache

In a somewhat unexpected, but not that surprising, ruling, the California Labor Commissioner, on June 3, 2015, issued a 12-page decision in favor of a pro se plaintiff driver against mighty Uber Technologies, Inc. for...more

Bankruptcy Beat: Former NFL Player Defeats Fraud Allegations Which Results In Discharge Of Debt

On March 31, 2015, the Honorable Albert S. Dabrowski issued a decision in Hamrah v. Coulette (In re Coulette), Adv. Pro. No. 13-2039, concerning the issue of whether an obligation created by a failed business investment gives...more

Is There a Presumption in Favor of Equal Parenting Time?

While there is no formal ‘presumption’ of equal parenting time, the policy of the State of Arizona is clear. The policy is to ensure “substantial, frequent, meaningful and continuing parenting time with both...more

ALJ Essex Elaborates an Evidence-Based Framework for Adjudicating the FRAND Defense

Administrative Law Judge Essex recently issued the public version of his Initial Determination on Remand in International Trade Commission investigation No. 337-TA-613, In the Matter of Certain 3G Mobile Handsets and...more

Amendments to PATENT Act Proposal Takes Aim at IPR Proceedings

On Thursday, June 4, 2015, the PATENT Act made it out of committee on a 16-4 vote after amendments were made to the bill that take direct aim at inter partes review proceedings. While there is still a long way to go before...more

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