Affirmative Defenses Under Twombly and Iqbal: Complying With Higher Pleading Standards in Recent Cases Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1. WEDNESDAY, OCTOBER 16, 2019 Presenting a live 90-minute webinar with interactive Q&A Patrick Dillard, Associate, Troutman Sanders, Richmond, Va. Jeffrey Soos, Member, Saiber, Newark, N.J.
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Affirmative Defenses Under Twombly and Iqbal: Complying ...media.straffordpub.com/products/affirmative...Oct 16, 2019 · Over A Decade Since Twombly/IqbalIssued Bell Atlantic Corp.
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• Defendant must satisfy Twombly’s plausibility standard in order to adequately plead affirmative defenses
• Caveat, “context-specific” and standard may be relaxed given:
• short amount of time to answer, and,
• limited availability of evidence
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District Level Caselaw Applying PlausibilityStandard to Affirmative Defenses
• Reasons cited in favor of plausibility standard
• Fairness to the Parties
‒ ensure opposing party receives fair notice
‒ plead responsibility and allege facts, not just conclusions
‒ avoid unnecessary work/discovery
• Fairness to the Court
‒ preservation of limited judicial resources
‒ consistency, i.e., same considerations underlying Twombly and Iqbal apply
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District Level Caselaw Applying PlausibilityStandard to Affirmative Defenses
• If claim is meritless, result not harsh
• Leave to amend should be freely given
• Majority view?
• Northern District of California
• Northern District of Illinois
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Remedy -- Rule 12(f): Motion to Strike
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
• Test to survive motion to strike
• the matter must be properly pleaded as an affirmative defense
• the matter must be adequately pleaded under the requirements of Rule 8 and Rule 9, and
• the matter must withstand a Rule 12(b)(6) challenge
• Motions to strike are “generally” or “highly disfavored;” viewed “simply as a dilatory tactic” or “potentially serve only to delay;” a “drastic” remedy
• Striking an affirmative defense without deciding whether plausibility standard applies
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What To Do?
• Consider, budget and discuss with client
• Research/confirm law in Circuit/District where case is pending
• When applicable:
• plead with specifics and particularity – avoid boilerplate
• anticipate possible bases for challenge/motion, i.e., how much factual detail will be required to withstand a potential Rule 12(f) motion to strike
• do not assume what worked in the past will still be accepted today
• First impressions matter – maintain credibility with the Court
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