Affirmative Defenses and the Plausibility Pendulum

Affirmative Defenses and the Plausibility Pendulum

Jul 01, 2017


Co-Author, Trying Antitrust, Summer 2017

At the heart of the Supreme Court’s decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), was its focus on Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Court unequivocally held that under Rule 8 a plaintiff must plead in the complaint sufficient facts to show that a claim is “plausible on its face.” Twombly, 550 U.S. at 547, 570; Iqbal, 556 U.S. at 678, 697. What the Court did not address was whether the heightened “plausible on its face” pleading standard also applies to a defendant’s affirmative defenses.

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