Burden-Shifting

News & Analysis as of

Supervisor's Remarks May Constitute Direct Evidence of Discriminatory Bias

On September 2, 2016, the United States District Court for the District of Maryland (which sits in the Fourth Circuit, along with North Carolina and South Carolina) held that the EEOC can move forward in its case against a...more

Defence & Indemnity - August 2016: II. LIABILITY ISSUES #1

A. Reverse Onus Provisions of the Traffic Safety Act: Section 186 of the Traffic Safety Act applies over Section 185 in accidents involving a motorist and a non-motorist (such as a pedestrian or cyclist). Section 185 applies...more

District Court Dismisses Disparate Impact Claim of Inclusive Communities

A federal court in Texas recently dismissed a housing discrimination claim that was based on alleged disparate impact under the Fair Housing Act (FHA), the latest in a series of decisions applying landmark U.S. Supreme Court...more

Seventh Circuit Ditches “Convincing Mosaic” Standard in Employment Cases

In the past, we have counseled our clients on steps they can take to avoid creating a “convincing mosaic” of employment discrimination. The Seventh Circuit Court of Appeals first discussed the convincing mosaic of...more

Seventh Circuit to Plaintiffs: Here's Your Burden of Proof

Most employees who file employment discrimination claims hope for one of two things – a really sympathetic jury or an employer that is willing to generously settle the lawsuit to avoid the risks and uncertainties of trial. ...more

Federal Circuit Rebukes PTAB for Shifting Burden of Proof to Patentee in IPR

Reaffirming the petitioner’s burden of proof codified in 35 USC § 316(e), the US Court of Appeals for the Federal Circuit reversed the decision of the Patent Trial and Appeal Board (PTAB or Board) finding the patent owner’s...more

New Rules Impact PEG Access Stations’ Responsibilities Regarding Closed Captioning

Additional Reporting and Compliance Requirements - The Federal Communications Commission published a Final Rule in the Federal Register on Tuesday, imposing new reporting requirements on public, educational and...more

High Court Inclusive Communities Ruling: 1 Year Later

Last summer the U.S. Supreme Court issued its much-anticipated decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project,[1] holding that disparate impact discrimination claims are...more

The Seventh Circuit Clarifies Evidentiary Standards in Employment Discrimination Cases

In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit stated in very clear terms that lower courts and parties to discrimination actions should not divide evidence into direct and circumstantial buckets under the familiar...more

In re Aqua Products, Inc. -- CAFC Grants Rehearing En Banc to Consider PTAB Motions to Amend

On Friday, August 13, 2016, the Federal Circuit granted a petition for rehearing en banc filed in the In re Aqua Products, Inc. case to consider two questions related to the PTAB's treatment of Motions to Amend in IPR...more

In re Magnum Oil Tools Int'l, Ltd. (Fed. Cir. 2016)

McClinton Energy Group filed an inter partes review (IPR) petition against all claims of U.S. Patent No. 8,079,413, owned by Magnum Oil Tools International, Ltd. The USPTO's Patent Trial and Appeal Board (PTAB) instituted...more

Federal Circuit Provides Ammunition to Patentees In Magnum Decision

Patent Owners gained a bit of a reprieve in the Federal Circuit’s recent decision in In Re Magnum Oil Tool Int’l, Ltd., decided on July 25, 2016. In several key respects, Patent Owners regained some footing in the otherwise...more

Magnum Offers New Path for Challenging AIA Decisions: Burden of Production

On July 25, 2016, the Court of Appeals for the Federal Circuit (CAFC) held in In re Magnum Oil Tools International (Newman, O’Malley & Chen) that the burden of production to show unobviousness does not shift to a patent owner...more

PTAB Institution Decision Does Not Shift Burden from the Patent Challenger to the Patentee

The Federal Circuit previously clarified that a petitioner’s burden to prove unpatentability never shifts to the patent owner. See Dynamic Drinkware, LLC v. Nat’l Graphics, Inc. On July 25, 2016, the Federal Circuit’s In re...more

JSH Reporter - Summer 2016

We are excited to announce the launch of our Summer 2016 JSH Reporter! The JSH Reporter is designed to provide information about changes in the law and how these affect a variety of industries. In this issue, you will...more

“Off the Rails:” A Plan Administrator’s Burden

When an ERISA plan provides the plan administrator with discretion to interpret the terms of the plan, the administrator’s claims and appeals decisions are generally reviewed by courts under a lenient standard of review such...more

In re Appraisal of Dell Inc., C.A. No. 9322 (Del. Ch. May 11, 2016) (Laster, V.C.)

In this opinion, the Court of Chancery held that, through the “Byzantine and path-dependent system by which stockholders voted on a proposed merger,” fourteen mutual funds sponsored by T. Rowe Price & Associates, Inc. (“T....more

Connecticut Legislature Passes Non-Compete Act Concerning Contracts With Physicians

On May 18, 2016, the Connecticut legislature transmitted Public Act No. 16-95 (the “Act”) to the Governor for his signature. The Governor is expected to sign the bill into law in the coming weeks. Once he does, it will...more

Statistical Modeling in Class Actions: The U.S. Supreme Court Weighs in, Kind of

A U.S. Supreme Court decision expected to potentially change (or at least clarify) the rules on the hot-button issue of statistical modeling in class actions ended up turning much more on case law specific to the Fair Labor...more

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

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