Vanderbilt Law Review


Nathan Pysno

First Page



In 2007, the U.S. Supreme Court promulgated a new pleading standard in Bell Atlantic Corp. v. Twombly, specifically holding that complaints must state a claim to relief that is "plausible on its face." The Twombly decision retired the well-established and more lenient pleading regime that reigned since the Court's 1957 decision in Conley v. Gibson. Two years after Twombly, the Supreme Court confirmed in Ashcroft v. Iqbal that neither the reach of the new plausibility standard nor the death of Conley was exaggerated. "Labels and conclusions" are now insufficient, as are "naked assertions devoid of further factual enhancement" and "unadorned the-defendant- unlawfully-harmed-me accusation [s]." "Plausibility" pleading is now required in all cases, not just antitrust cases like Twombly. Twombly and Iqbal have already generated a substantial body of legal scholarship on the impact and wisdom of the plausibility pleading standard. Likewise, practitioners and courts have struggled to understand how to conform their pleadings and their decisions, respectively, to the dictates of the new plausibility, or fact, pleading standard.

Twombly and Iqbal have also raised questions regarding how and when courts should apply the new pleading standard. One such question is whether the heightened plausibility pleading standard should, or in fact does, apply to the pleading of affirmative defenses. Defendants must "affirmatively state" affirmative defenses in response to a pleading. If proven, an affirmative defense defeats a plaintiffs claim and bars or limits recovery even if the plaintiff also proves his or her claim. Filed as part of the answer, the pleading of affirmative defenses is similar to a plaintiffs complaint; it is the defendant's first opportunity to notify the plaintiff of the defenses he plans to raise against the plaintiffs claim. Generally, pleadings of affirmative defenses must provide notice of the defense and an opportunity for the plaintiff to rebut it. Amidst all of the thorny questions and potential problems that have captured the attention of scholars, courts, and practitioners, the issue of whether the new standard will apply to affirmative defenses has, until recently, received relatively little notice.

The first published piece solely dealing with the issue is a five- page article in the Florida Bar Journal by Manuel John Dominguez, William B. Lewis, and Anne F. O'Berry. In addition to providing a 8. See Stephen B. Burbank, Pleading and the Dilemmas of Modern American Procedure, 93 JUDICATURE 109, 110 (2009) (' The Court had an opportunity to clarify the meaning and scope of its Twombly standards in Iqbal, but instead it exacerbated confusion about pleading standards."); Alexander A. Reinert, The Costs of Heightened Pleading, 86 IND. L.J. 119, 121 (2011) ("The shift from Conley to Iqbal/Twombly pleading has created controversy and confusion ..... ); Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. 1293, 1299 (2010) ("[1]t was irresponsible for the Court to invite the controversial 'plausibility' concept into pleading doctrine in a way that has led to such widespread confusion.").