b'Page 10FBA/OC Pleading Affirmative Defensestentionitreceives.Affirmativedefensescan affect both the cost and outcome of litigation. They can affect the scope of discovery, extend (Continued from page 1)relevance for purposes of evidentiary law, and motion to dismiss unless it appeared beyondbe a factor in whether or how a class gets cer-doubtthattheplaintiffcanprovenosetoftified. 15Defendants can defeat a claim against facts in support of his claim which would enti- them based on their affirmative defenses un-tlehimtorelief. 6 Thisso-callednosetofder Rule 12(c) or Rule 56. 16Properly preserv-factsstandardrequiredonlythatthecom- ing affirmative defenses can be the difference plaintgivenoticetothedefendantofwhatbetween a large settlement and outright dis-the plaintiffs claim is and the grounds uponmissal of the case.which it rests. 7 Plaintiffs can attack affirmative defenses in a In 2007, the Supreme Court held in Twomblynumberofways,butthemostcommonisa that a complaint needed to do more than justmotion to strike an insufficient defense under notify the defendant. Instead of notice, plain- Rule12(f).Thenumberof12(f)motions tiffswereheldtoaplausibilityspikedinthewakeofTwomblyand standard,whichrequiredthattheyThe answer has beenIqbal. 16Plaintiffsclaimeddefenses establishenoughfactsintheircom- called the forgottenwere insufficient because they did not plaint to raise a right to relief abovepleading.meettheplausibilitystandard.De-a speculative level. 8The Court reliedfendants argued that the standard did onthelanguageofFederalRuleofnotapplytotheirdefenses.Andthe CivilProcedure8(a)(2),focusingonthere- question remains to this day: does the quirement that plaintiff make a showing ofSupremeCourtscreationoftheplausibility entitlementtorelief,ratherthanablanketstandardforaplaintiffscomplaintapplyto assertion 9 encompassingonlyaformulaicthedefendantsansweraswell?Neither recitationoftheelements.TheresultingTwombly norIqbaldiscussed affirmative de-standardrequiresanassertionthatismorefenses, and there are good arguments on both than conceivable, but less than probable. 10Insides of the debate.Ashcroft v. Iqbal, the Court confirmed that itsTheArgumentsForandAgainstApply-ruling in Twombly was not limited to the factsing the Heightened Standard of that case, but rather it applied to all civil complaints. 11 Certainargumentswereconsistentinthe Affirmativedefensesincivilanswersassert1,100-plus cases reviewed. Both plaintiffs and that,evenassumingthefactsinthecom- defendants appeal to the courts sense of equi-plaint are all true, the defendant should notty. Plaintiffs argue that what is good for the gooses complaint should be good for the gan-be held liable based on some fact outside theders answer. 18Why, they ask, should plain-complaint. A common example is the statutetiffs be held to a higher standard? Defendants oflimitations 12 :evenifharmwasdone,thecounter, saying the uneven standards are nec-outsidefactthatthestatutepreventsplain- essaryforequity.Whileplaintiffshavethe tiffsfrombringingstaleclaimsrendersthewhole statute of limitations to formulate their defendantnotliable.Therulesrequirede- complaint,defendantshaveonly21days. fendantstostateinshortand plaintermsPlaintiffs counter that the 21-day period can their affirmative defenses. 13be extended, and that leave to amend can be Theanswerhasbeencalledtheforgottengranted even after the filing of the answer.pleading 14in light of the relative lack of at- The text of the Federal Rules is another basis'