Twombly And Iqbal's Impact On Affirmative Defenses

Law360, New York (May 20, 2011, 4:05 PM EDT) -- Drafting affirmative defenses is routine. Defendants generally include a somewhat over-inclusive list of defenses at the end of an answer since defenses not raised in the answer may be considered waived under Fed. R. Civ. P. 12(b). This practice, however, has come into question recently in a slew of cases debating whether the U.S. Supreme Court’s decisions in Atlantic Corp. v. Twombly and Ashcroft v. Iqbal — which found a heightened pleading standard for allegations in a complaint — also apply to affirmative defenses.

Twombly and...
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