Circuit Splits

Originally published by Jason P. Steed.

There’s a split over whether the “innocent landowner” defense applies to former as well as current facility owners, in an action brought under CERCLA. See here at p.14 n.5.

There’s a split over whether state or federal law determines the validity of a forum-selection clause (before deciding its enforceability). See here at p.5.

Circuits disagree over whether a retaliation plaintiff must show evidence of but-for causation at the prima-facie stage of the McDonnell Douglas framework when substantial time has elapsed between the plaintiff’s protected activity and the resultant adverse employment action. See here at p.26-27 n.7.

There’s a split over whether a public entity (such as a county or city) can be liable under § 1985 for a conspiracy carried out by or with its employees. See here at p.9.

Courts disagree over whether ERISA allows a court to require a defendant who breached his fiduciary duty to ESOP participants to indemnify his cofiduciaries. See here at p.3.

Courts also disagree over whether a defendant charged with aiding and abetting a felon in possession must know the principal was a felon. See here at p.12 n.6.

And there’s a split over whether a district court, when reviewing an ALJ’s decision on Social Security benefits, can consider new evidence submitted to the Appeals Council after the ALJ’s decision was made. See here at p.5 n.3.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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