June 13, 2012 Articles

Do Twombly and Iqbal Apply to Affirmative Defenses?

With little guidance from the courts, the old adage applies: Know your judge.

By Carla R. Walworth, Mor Wetzler, and Jessica Oliva

Years after the Supreme Court revised the pleading standard in Twombly and Iqbal, courts still disagree on whether the standard established in those decisions applies to affirmative defenses. The start of 2012 brought new district-court decisions on the question, but there is still no resolution. For example, courts in the District of Delaware and the Southern District of California have declined to extend heightened pleading standards to affirmative defenses, while courts in the District of Maryland and Northern District of California applied the heightened Twombly standard. While many district-court judges follow the precedent of other judges within their districts, intra-district splits on the question also exist, for example, within the District of Minnesota, the Western District of Washington, and the Middle District of Florida. In spite of these disagreements, no circuit court has yet taken up this question, and thus an answer from the U.S. Supreme Court appears far off. Practitioners are left with little guidance beyond the old adage: Know your judge.

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