b'Spring/Summer 2019Page 13 defense in general terms. 32This sounds likeLatham & Watkins provides representation to arejectionoftheheightenedstandard.Butthose seeking effective litigation in the complex interestingly, the court did not even mentioncommerciallitigationarena.Disclaimer:The TwomblyorIqbal.Rather,itsupportedthisviewsandopinionsexpressedinthisarticle claimbyreferencingthe1998editionofare solely those of the authors and do not re-Wright and Millers Federal Practice and Pro- flecttheviewsoropinionsofthefirmorits cedure, writtenyearsbeforeTwiqbalrevolu- clients. The article is for general informational tionizedpleading,atleastontheplaintiffspurposes and should not be taken as legal ad-side.vice.Before Kohler, the Ninth Circuit was split al- 1 550 U.S. 544 (2007). most evenly: 78 cases applied the heightened2 556 U.S. 662 (2009). standard, while 80 did not. 33Since the Kohler3 AdamSteinman,EverWonderWhichSCOTUS decision,courtsapplytheheightenedstand- Cases Have Been Cited the Most?, CIVIL PROCE-ard about half as often as they refuse to applyDURE AND FEDERAL COURTS BLOG (Sept. 21, it (33 to 65). This shift appears to be due to2016),http://lawprofessors.typepad.com/thefactthatmanyjudgesreadKohlerascivpro/2016/09/ever-wonder-which-scotus-cases-NinthCircuitinstructiontorefusetoapplyhave-been-cited-the-most.html(rankingTwombly theheightenedstandardtoaffirmativede- third-most-cited with 127,521 federal court citing fenses.TheNorthernDistricthasstooditsreferences,andIqbalfourth-most-citedwith ground,arguingthatKohlerdidnotruleon104,712 references). theissue18ofthe19NorthernDistrict4 I conducted this review along with Professor Bri-casessinceKohlerhaveappliedtheheight- an Soucek and the results were published in a re-enedstandardtoaffirmativedefenses. 34 Incent law review article.SeeBrian Soucek & Re-the Central District of California, by contrast,mington B. Lamons,Heightened Pleading Stand-onlyfourcases(threejudges)haveappliedardsforDefendants:ACaseStudyofCourt-theheightenedstandardsinceKohler,whileCounting Precedent, 70 A LA . L. R EV . 875 (2019). 11 have either refused or failed to reach the5 GEOMCCo.v.CalmareTherapeuticsInc.,918 issue. 35 F.3d 92, 98 (2nd Cir. 2019) (We conclude that the Those litigants seeking to defend their affirm- plausibility standard of Twombly applies to deter-ativedefenseshaveanumberofargumentsmining the sufficiency of all pleadings, including thepleadingofanaffirmativedefense,butwith available to convince a judge to refuse to ap- recognition that, as the Supreme Court explained ply the higher standard, including Kohler andin Iqbal, applying the plausibility standard to any theargumentsthathavebeensuccessfulinpleading is a context-specific task.). Interesting-prior cases. But the data shows that the issuely, by applying the heightened standard, this deci-is far from settled, leaving substantial uncer- sion ruled the opposite of the majority of district taintywithrespecttotheproperstandardcourts.withwhichtopleadaffirmativedefensesin6 355 U.S. 41 (1957).the forgotten pleading.7 Id. at 47. *Remington Lamons is a litigation associate8 550 U.S. at 555. In assessing plausibility, courts at Latham & Watkins Orange County office,are to assume all asserted facts as true and disre-andagraduateofUCDavisSchoolofLaw.gard any legal conclusions.The author would like to thank Andrew Gray9 Id. at 555 n. 3; see Fed. R. Civ. P. 8(a)(2).and Professor Brian Soucek for their helpful10 Iqbal, 556 U.S. at 678.comments.'