Read the following excerpt from a US court opinion:
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NRCP 8(c) does not speak directly to whether a federal law granting immunity from liability qualifies as an affirmative defense, the question then becomes whether the Act falls within NRCP 8(c)’s catchall provision. See NRCP 8(c). This court recently instructed lower courts and litigants on what defenses must be affirmatively pleaded under NRCP 8(c)’s catchall provision, stating, “Allegations must be pleaded as affirmative defenses if they raise ‘new facts and arguments that, if true, will defeat the plaintiff’s . . . claim, even if all allegations in the complaint are true.”’ Clark Cty. Sch. Dist. v. Richardson Constr., 123 Nev. 382, 393, 168 P.3d 87, 94 (2007) (alteration in original) (internal quotations omitted) (quoting Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) ). Although CCSD and Phillips argue that
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What is the most suitable continuation to the opinion? Your options are:
A. holding that fair use is an affirmative defense
B. recognizing that federal preemption is affirmative defense as to which defendant has burden of proof
C. holding that when erisas preemptive effect results in change of applicable law rather than choice of forum preemption is an affirmative defense that must be set forth in defendants answer or it is waived
D. holding that erisas preemption of state contract claims in a benefitsdue action is an affirmative defense subject to waiver
E. holding that erisa preemption is an affirmative defense where erisas preemptive effect would result only in a change of the applicable law and would not subject the claim to exclusive federal jurisdiction
Reply with [A, B, C, D, E] only.