It's always going to be tougher to get a no reasonable jury finding on a factor test like that than an element test. Implicit in a multi-factor test is that the

It's always going to be tougher to get a no reasonable jury finding on a factor test like that than an element test. Implicit in a multi-factor test is that the weighing of the importance of the various factors with respect to each other is left to the trier of fact.