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

A live 90-minute CLE webinar with interactive Q&A

Wednesday, October 16, 2019

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, September 27, 2019

or call 1-800-926-7926

This CLE webinar 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


Hoffmeister, Julie
Julie D. Hoffmeister

Troutman Sanders

Ms. Hoffmeister practices in the firm’s Consumer Financial Services group, with a primary focus on Financial...  |  Read More

Soos, Jeffrey
Jeffrey Soos


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

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