February 27, 2019 Articles

No Heightened Pleading Required for Defenses

Published decisions in every circuit reject the application of TwIqbal to defenses.

By James M. Beck

Mass tort, and other, defendants often face motions to strike, or for a more definitive statement, against their pleaded defenses (not to call them “affirmative” defenses, which may erroneously implicate the burden of proof), contending that the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) (collectively “TwIqbal”), require greater factual detail. Such motions often annoy courts because “[t]here is nothing dumber than a motion to strike boilerplate affirmative defenses; it wastes the client’s money and the court’s time.” Raymond Weil, S.A. v. Theron, 585 F. Supp. 2d 473, 489–90 (S.D.N.Y. 2008).

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