The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses

Abstract

In the unsettled environment that the U.S. Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal ushered in, confusion abounds. Yet, “Twiqbal” has now made clear that the “plausibility” pleading regime applies to all claims. There is, however, no authoritative appellate guidance on whether it applies equally to defenses (and, more particularly, affirmative defenses).

This article charts the 122 federal trial court opinions that have tackled this issue in the post-Iqbal period. The article introduces the national incoherence on the issue at the district court level by recounting the travail of one litigant who, in four different litigations over just seventeen months, had three different pleading variants applied to the testing of affirmative defenses. The article explains why this incoherence is a profoundly dangerous state of affairs, noting how affirmative defenses can be case-dispositive, but are vulnerable to waiver if not properly asserted, and why trial level rulings on the pleading adequacy of affirmative defenses are often immune from any meaningful appellate review. The article next illustrates the Twiqbal predicament through an exemplar case that is factually interesting, that aligns ultimately with the emerging national uniformity on the issue, and that weighs both textual and functional considerations as support for its result. The article then catalogues the national case law on the point, noting trends both nationally and in one illustrative litigation sector, verifying that the disharmony exists not at the circuit-by-circuit level, or even the district-by-district level, but rather, at the chambers-by-chambers level (that is, trial judges sitting in the same federal district are disagreeing with one another), and finally describing the varying approaches used by the federal judges and their respective supporting analyses. Finally, the article evaluates the three strategic options available to responsive pleaders navigating this uncertainty, and demonstrates that none is reliable.

The article concludes by explaining why this prevailing national disuniformity on Twiqbal’s application to affirmative defenses may rank as one of (if not the single) most dangerous challenge facing federal pleaders today – with the only safe antidote being an understanding, at the judge-by-judge level, of the target court’s inclinations on the question (the research the article’s Appendix of Cases chart supplies).

Keywords: Twiqbal; Twombly; Iqbal; Plausibility; 8(c); 8(a); Affirmative Defenses; Pleading