Burden-Shifting

News & Analysis as of

Un-Mixing The Mixed-Motive Standard

Seyfarth Synopsis. The Eleventh Circuit clarifies the framework in mixed-motive cases. Although damages are limited, a plaintiff can establish a mixed-motive claim by showing a protected characteristic was a motivating factor...more

HUD Releases Guidance on Criminal Background Checks by Housing Providers

The U.S. Department of Housing and Urban Development (HUD) on April 4, 2016, issued guidance addressing Fair Housing Act liability regarding the use of criminal background checks or screenings in housing determinations....more

Mayor de Blasio Signs New Laws Strengthening NYC’s Human Rights Law

On Monday, March 28, 2016, Mayor Bill de Blasio signed several bills (Intros 814-A, 818-A, and 819) amending the New York City Human Rights Law (“NYCHRL”). The amendments strengthen employee protections by changing existing...more

Proceed with Caution – Update on Indiana’s burden-shifting rules in property tax appeals

When does the burden of proof shift to the Assessor in a property tax appeal? These recent Indiana Board of Tax Review rulings address that question. The Indiana Board of Tax Review (IBTR) addresses Indiana’s burden-shifting...more

Are Corps Jurisdictional Decisions Final Agency Action? It Appears So. Is This a Good Thing?

According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more

Massachusetts SJC Lightens Plaintiffs’ Summary Judgment Burden in Employment Discrimination Cases

Last week, the Massachusetts Supreme Judicial Court issued a seminal ruling in Bulwer v. Mt. Auburn, which clarified the type of evidence an employment discrimination plaintiff needs to defeat a summary judgment motion. In...more

Mississippi Federal Court Decision Shows Degree Of Burden To Challenge Arbitration Award

A decision of a Mississippi federal district court illustrates the weighty burden that a party must carry in order to vacate an arbitration award. The dispute was over an executive terminated from a company and whether his...more

Update on the U.S. Supreme Court’s Inclusive Communities Decision

As previously reported on this blog, the U.S. Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) adopted a burden-shifting approach to...more

In the Wake of Dynamic Drinkware, PTAB Rejects Prior Art Due to Petitioner’s Failure to Establish Earlier Priority Dates (VMware,...

Addressing the burden-shifting requirements for establishing priority of prior art references, the Patent Trial and Appeal Board (PTAB or Board) recently issued two decisions finding that the petitioners failed to meet their...more

Illumina Cambridge Ltd. v. Intelligent Bio-Systems, Inc. (Fed. Cir. 2016)

The Federal Circuit affirmed a decision of obviousness, and that a patentee not be able to amend claims in an inter partes review proceeding, in an opinion handed down January 29th in Illumina Cambridge Ltd. v. Intelligent...more

First Sale Defense Blocks “Slam Dunk” Copyright Violation

The Ninth Circuit recently addressed the burden of proof applicable to the first sale defense to a copyright infringement claim. That defense provides that, once a copy of a work is lawfully sold or transferred, the new owner...more

Maine’s Law Court Blows the Whistle on McDonnell Douglas

Maine’s highest court has closed out the year with two notable decisions involving the state’s Whistleblowers’ Protection Act (WPA). The decisions revise the method for analyzing WPA cases on summary judgment and, as a...more

Tennessee Supreme Court Modifies Summary Judgment Standard

Recently the Tennessee Supreme Court modified the summary judgment standard in state courts in the state of Tennessee. The Tennessee Supreme Court returned the state’s summary judgment standard to be consistent with the...more

Inclusive Communities And Disparate Impact Under The Fair Housing Act

In its recent Inclusive Communities decision the Supreme Court held (5-4) that disparate impact claims are cognizable under the Fair Housing Act. The authors discuss disparate impact prior to the case, HUD’s disparate impact...more

Partnership-Level Tax Under New Audit Rules

The Bipartisan Budget Act of 2015, signed into law on November 2, 2015, has significantly changed the partnership tax audit rules, effective for tax years beginning after December 31, 2017. Under the current partnership...more

Reducing Discretionary Bonus May Constitute Adverse Employment Action

According to the U.S. Court of Appeals for the Second Circuit, a District Court erred when it held that reducing an employee’s discretionary bonus cannot constitute an “adverse employment action” – a necessary element of a...more

New OFCCP changes to federal contractor pay practices

September was a busy month for federal contractors due to new regulatory requirements. Earlier last month, we told you about President Obama’s new executive order requiring covered government contractors to provide their...more

"Shifting Burdens: Structuring a Rule of Reason in Reverse-Payment Cases"

The U.S. Supreme Court’s 2013 decision in Federal Trade Commission v. Actavis, Inc. triggered a flurry of judicial activity in relation to pharmaceutical patent settlements allegedly involving reverse payments from patent...more

Insurance Newsletter September 2015

On May 26, 2015, the United States Court of Appeals for the District of Columbia upheld a District Court decision and ruled that the Internal Revenue Service could not impose excise tax on certain wholly-foreign retrocessions...more

Allocation Of Covered And Uncovered Claims: Recent Decisions On Burden Shifting And Pre-Approval Requirements

Ongoing efforts by insurers to recover amounts paid for uninsured losses after settlement or judgment have resulted in extensive litigation over allocation issues. Conflicting opinions have arisen over which party bears the...more

Form 133 Petitions Could Not Be Used to Prove Zero Property Tax Assessments for Common Area Land

In a consolidated case involving more than two dozen appeals, the Indiana Tax Court on September 3, 2015, found in Pulte Homes of Indiana, LLC v. Hendricks County Assessor that the Indiana Board of Tax of Review properly...more

Competitors Push Back With False Advertising Laws

In a time when the “disruptive” label is far from viewed as pejorative and, in fact, deemed essential for many new business models, existing market participants looking to fight back are turning to powerful federal and state...more

Decision Holding Washington State’s anti-SLAPP Statute Unconstitutional Could Impact DC anti-SLAPP Statute

Last month, the Washington Supreme Court held that state’s anti-SLAPP statute was unconstitutional because it required trial courts to weigh competing evidence – which was a function expressly reserved for the jury. With the...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

Revisiting Reasonable Accommodation Under the ADA — Being “Effective”

What does it really mean to provide a reasonable accommodation to an employee who has a disability? That’s a question I talk about a bunch with clients. The employee may request one thing but the employer may think that...more

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