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Twombly and Iqbal Are Being Applied To Affirmative Defenses

— September 28, 2010

You can probably guess that I’m not a fan of Twombly and Iqbal, which I see as creations of an activist Supreme Court.  However, the silver lining to the decisions is that they’re at least being used to get rid of some of the ridiculous affirmative defenses being used by defendants:

The fallout from the [Twombly and Iqbal] decisions has been significant: multiple bills have been proposed to reverse the holdings, which have been cited thousands of times by federal courts as defendants successfully move to have suits dismissed based on the heightened pleading requirements.

But now some defendants are feeling the sting, because a growing number of federal courts are applying the reasoning of Twombly-Iqbal to affirmative defenses.

“What’s good for the goose is good for the gander,” said Tim Schulte, a partner at Shelley & Schulte in Richmond, Va. who recently won a motion applying Twombly-Iqbal to the defendant’s affirmative defenses.

Source: Wisconsin Law Journal » Blog Archive » Courts split on affirmative defenses

I’m hoping one of the bills to overturn Twombly and Iqbal make it through Congress, but I doubt they will.

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