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

Description

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.