Burden of Proof

News & Analysis as of

Revisiting the direct threat defense under the ADA

One of the defenses available to an employer under the Americans with Disabilities Act (ADA) is the idea that an accommodation of a qualified individual with a disability cannot be made when the employee poses a “direct...more

The Supreme Court - June 2016 #7

The Supreme Court of the United States issued decisions in three cases today: McDonnell v. United States, No. 15-474: Former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, were federally indicted...more

Kinast v. Target

Jefferson T. Collins Prevailed by Summary Judgment in a Premises Liability Negligence Matter - On behalf of his client, Target Corporation, Jefferson T. Collins, Jones, Skelton & Hochuli, prevailed by summary judgment...more

Bank of America Wins Reversal of FIRREA $1.27B Penalty

A breach of contract is insufficient to also support a claim for fraud, the Second Circuit Court of Appeals has ruled, reversing a $1.2 billion verdict against Countrywide Home Loans in the process. What happened...more

Federal Circuit Review | June 2016

The PTAB Does Not Have to Consider New Arguments Raised in IPR Reply Briefs - In Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., Appeal No. 2015-1693, the Federal Circuit upheld a PTAB decision finding of...more

Knee Implant MDL Judge Enters Aggressive Lone Pine Order

We love Lone Pine orders. First of all, we love the name. Makes us think of a cowboy eating beans under a scraggly tree. On the prairie. Listening to Dolly Parton. We also love Dolly Parton, whom we saw in concert last week...more

A null and void non-compete clause does not trigger automatic damages

Until now, there has been no requirement for an employee to demonstrate any loss suffered to be entitled to damages owing to a null and void non-compete clause inserted into his or her employment contract. In its...more

Second Circuit Extends DMCA Safe-Harbor Protection to Pre-1972 Sound Recordings, Clarifies Scope of Exceptions for Willful...

On June 16, 2016, the U.S. Court of Appeals for the Second Circuit issued its long-awaited decision in Capitol Records, LLC v. Vimeo, LLC, No. 14-1048 (2d Cir. 2016). First, the Second Circuit held that the "safe harbor"...more

Intellectual Property Alert: U.S. Supreme Court Decides Cuozzo Speed v. Lee

On June 20, 2016, the U.S. Supreme Court decided Cuozzo Speed v. Lee, Inc., No. 15-446. The Court affirmed the Federal Circuit’s judgment in full, thus resolving two significant issues for inter partes review (IPR)...more

FTC Delays Ruling in LabMD Appeal

The Federal Trade Commission has decided to put off until late July a decision about whether to overturn a ruling by the agency’s chief administrative law judge in the closely watched data security action against LabMD, the...more

FTC Suffers Another Hospital Merger Loss in Advocate-NorthShore

On Tuesday, June 14, 2016, the U.S. District Court for the Northern District of Illinois declined to temporarily block the proposed merger of Advocate Health Care Network and NorthShore University HealthSystem in the Chicago...more

Intellectual Property Alert: Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc. — U.S. Supreme...

Yesterday, the Supreme Court issued an unanimous decision in companion cases Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc., which rejected the Federal Circuit’s rigid, two-part test for...more

Clarifying Irving: Can an Alberta Employer Implement a Random Drug and Alcohol Testing Policy in a Safety Sensitive Workplace?

Despite a new decision on the issue from the Alberta Court of Queen’s Bench (the “Court”) on May 18, 2016, the answer to this question remains “maybe.” The Court has, however, provided us with a measure of clarity concerning...more

Massachusetts Legislature Overhauls Public Records Law

Last week the Massachusetts Legislature adopted significant changes to the Massachusetts Public Records Law. These changes apply to all state agencies and municipalities and in theory are designed to improve the disclosure of...more

Medical Litigation Newsletter - Spring 2016

Reducing Monetary Recovery in “Lost Chance Of [Medical] Recovery” Cases - In medical malpractice cases involving solely “iatrogenic” loss (e.g., harm of or relating to medical treatment), plaintiff bears the burden of...more

New Restrictions on Physician Non-Competes in Connecticut

A new Connecticut law significantly restricts the use of physician non-compete agreements. Public Act No. 16-95 (the “Act”), signed into law by Governor Dannel Malloy on June 2, 2016, limits the allowable duration and...more

When you do not know who caused your Car Accident—Shifting the Burden of Proof.

Woodland Hills personal injury lawyer Barry P. Goldberg has met with clients who really have no idea how a car accident occurred and who was responsible for their injuries. An “internet educated” client asked me if we could...more

Reversal of Countrywide Fraud Verdict a Reminder of Government’s Heavy Burden of Proof

On May 23, 2016, the U.S. Court of Appeals for the Second Circuit reversed a jury’s finding of civil fraud against Countrywide Home Loans and other lenders, finding that the government had failed to prove fraud in...more

Objecting to the Dischargeability of Debt: How a Creditor May Protect its Debt in Bankruptcy

Imagine that you are an unsecured lender who has learned that a borrower has filed for bankruptcy and has little to no assets available to pay creditors. Is there any way to prevent your debt from being extinguished? This...more

Patent Owner Must Show Patentability Over Art of Record to Amend Claims in IPR

In In re Aqua Products, Inc., [2015-1177] (May 25, 2016), the Federal Circuit affirmed the PTAB’s denial of the patent owner’s motion to amend in IPR2013-00159. The Federal Circuit made quick work of the PTAB’s placing...more

Talc Litigation: The Big Picture

In 2015 and 2016, juries awarded $13 million in a talc case in California, and $72 million and $55 million in talc cases tried in Missouri. The California plaintiff argued that she used talcum powder which contained...more

In a Major FIRREA Victory for the Banks, the Second Circuit Overturns $1.27 Billion Jury Verdict

On Monday, the Second Circuit overturned a jury verdict and $1.27 billion penalty against Bank of America imposed under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1833a....more

OIG Updates Permissive Exclusion Criteria – Suggests Compliance Programs Are Expected

On April 18th, the Office of Inspector General (OIG) issued updated guidance describing the factors it will consider in determining whether to exercise its permissive authority to exclude individuals and entities from federal...more

Cook County Circuit Court Dismisses 201 False Claims Act Lawsuits

At a hearing yesterday, Cook County Circuit Judge James Snyder granted the State of Illinois’ (State) Motion to Dismiss 201 Illinois False Claims Act (FCA) cases filed by the law firm of Stephen B. Diamond, PC (Relator)...more

"Staples-Office Depot Mergers, 1997 v. 2016: Changed Industry, Same Result"

On May 17, 2016, one week after announcing his decision, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia released a public version of his opinion siding with the Federal Trade Commission in its...more

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