b'Page 12FBA/OC row, Olguin, and Wright II have all requiredstandard should apply. 30 heightened pleading from defendants.As Figure 1 indicates, the trend in the Cen- MostofthejudgesfromthelocalfederaltralDistrict overtime has consistentlybeen courthouse in Orange County have held thattowardrefusingtoapplytheheightened Twiqbals plausibility standard does not applystandardtoaffirmativedefenses.Morethan to affirmative defenses. Judge Staton ruled intwice the number of cases have refused to ap-three instances that the heightened standardply the heightened standard (28 to 13).did not apply. 26Judge Carter joined the Cen-tral Districtmajoritybyholdingthesame. 27 Kohler v. Flava Enterprises, Inc. Judge Selna also refused to apply the height- TheNinthCircuitviewseemstohavebeen ened standard to affirmative defenses after a thoughtful summary of the debate. 28Most re- influencedbythelanguageandholdingin cently, Judge Guilford answered the questionKohler v. Flava Enterprises, 31though the in-the same, holding that [t]he text of Federalfluence of this case varies by district. If you Rule of Civil Procedure 8, the principles un- ask in the Northern District of California, it derlyingtheSupremeCourtsdecisionsinseems the judges have agreed that no Ninth Twiqbal, and the practicalities of pretrial liti- Circuit case has ruled on the issue. But that gation all weigh against extending the plausi- is a controversial position.bility requirement to affirmative defenses. 29In2015,theNinthCircuitheardKohlerv. JudgeCarneyhasindicatedthatthesuffi- Flava Enterprises, Inc.,andstatedthatthe ciencyofanaffirmativedefenseisgovernedfairnoticerequiredbythepleadingstand-by a fair notice standard, though he has notards only requires describing [an affirmative] directlyanalyzedwhethertheplausibility'