Affirmative Defenses Under Twombly and Iqbal: Complying With Higher Pleading Standards in Recent Cases

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, October 16, 2019

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will provide trial attorneys with the knowledge of how to succeed in asserting affirmative defenses under the tighter pleading standards that have developed under Twombly, Iqbal, and their lower and state court progeny. Failure to know when and how to plead these defenses can be fatal to a client's case.


In the Twombly and Iqbal decisions, the Supreme Court departed from years of "notice pleading," forcing plaintiffs to meet a new, higher standard of plausibility. They left behind an unresolved issue: Would defendants still be permitted to assert terse, conclusory, single-sentence affirmative defenses. Courts have grappled with the subject, and one federal appellate court has recently decided in favor of holding defendants to this higher standard.

Trial lawyers must be able to distinguish between negative defenses (which deny a plaintiff's case) and affirmative defenses (which do not depend on the truth of the plaintiff's claim). Having determined that a particular defense is an affirmative defense, counsel must plead it in a fashion that does not result in the defense being stricken, waived, or dismissed.

Although some courts allow defendants to continue to state these defenses as outlined in Fed. R. Civ. P. 8, or its applicable state law equivalent, other courts require more. For example, instead of pleading "fraud" (under Rule 8(c)(1)), defendants may now be required to assert the specific elements of the defense, representation, reliance, scienter, and causation.

Listen as this panel of seasoned trial veterans discusses the evolution of this area of the law. The consequence of misunderstanding the current principles of affirmative defenses can be the disappearance of those defenses, resulting in a loss, and potentially a malpractice claim.



  1. Identification of affirmative defenses
    1. Listed in rules
    2. Unlisted items of confession and avoidance
  2. Twombly and Iqbal applied to affirmative defenses
  3. Twombly and Iqbal not applied to affirmative defenses


The panel will review these and other essential topics:

  • Background principles of affirmative defenses
  • Waiving an affirmative defense through non-assertion
  • Dismissing an affirmative defense for failure to meet pleading standards


Dillard, Patrick
Patrick Dillard
Troutman Sanders

Mr. Dillard represents consumer-facing companies and other clients in complex litigation with a keen understanding of...  |  Read More

Soos, Jeffrey
Jeffrey Soos


Mr. Soos focuses his practice in business litigation, intellectual property litigation, white collar criminal defense,...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video