Page 1 - John Hundley 2011

Sharp Thinking

No. 41 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. January 2011
Iqbal and Twombly Raise The Standards For

Affirmative Defenses In The Federal System

By John T. Hundley, Jhundley@lotsharp.com, 618-242-0246

A majority view is quietly emerging that two United States Supreme Court
cases on federal complaint-pleading standards also apply to affirmative
defenses.

The decisions to date are all at the trial court level, but, if confirmed by
higher courts, the trend has the potential to change affirmative-defense
pleading practice in significant ways.

At issue are whether the Supreme Court cases – Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), and Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (2009) – apply to the detail and
substance of affirmative defenses or only to complaints. In Twombly, the high court ruled that
notwithstanding the historical “notice pleading” standard in federal courts, an antitrust conspiracy
complaint had to have enough factual detail to make the conclusion of conspiracy “plausible”.
Although many observers initially viewed Twombly as addressing unique antitrust and conspiracy
issues, in Iqbal the court applied the heightened pleading standards of Twombly to all cases.

On their face, neither Twombly nor Iqbal says anything about the detail and nature of affirmative
defense pleading. Accordingly, in the 20 months since Iqbal was handed down, trial courts have
struggled with whether its teachings apply to defensive pleadings as well.
For example, this month no fewer than five federal district courts grappled
with the issue. J&J Sports Productions v. Coyne, 2011 WL 227670 *2 (N.D. Cal.
Jan. 24, 2011); EEOC v. Courtesy Bldg. Serv., Inc., 2011 WL 208408 *2 (N.D. Tex.
Jan. 21, 2011); Wine Group LLC v. L&R Wine Co., 2011 WL 130236 *2 (E.D. Cal.
Jan. 14, 2011); Lopez v. Asmar’s Mediterranean Food, Inc., 2011 WL 98573 *1
(E.D. Va. Jan. 10, 2011); Sewell v. Allied Interstate, Inc., 2011 WL 32209 *6 (E.D.
Tenn. Jan. 5, 2011). In two cases (Lopez and Wine Group) the courts applied
Iqbal-Twombly; in two (Sewell and EEOC) the courts did not; and in one (J&J) the
court avoided the issue by striking the defenses under previous law.

But, while avoiding the issue, the J&J court noted that the “vast majority” of courts to have
faced the issue have come down on the side of applying Iqbal-Twombly to affirmative
defenses. That observation is consistent with surveys of the law done in other recent cases. E.g.,
Monster Daddy LLC v. Monster Cable Prod., Inc., 2010 WL 4853661 *7 (D.S.C. Nov. 23, 2010); Ahle
v. Veracity Research Co., __ F.Supp.2d __, 2010 WL 3463513 *24 (D. Minn. Aug. 25, 2010); Barnes
v. AT&T Pension Ben. Plan, 718 F.Supp.2d 1167, 1172 (N.D. Cal. June 22, 2010).

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