Monday, January 24, 2011

E.D. Va. Judge Rules No "Twiqbal" For Affirmative Defenses

Visit the VLW Blog for an article on Lopez v. Asmar’s Mediterranean Food Inc., in which the judge held that the plausibility standard announced in Twombly and Iqbal does not apply to the pleading of affirmative defenses. A PDF of the opinion is available here.

Wednesday, January 19, 2011

Prof. Bales and Melanie Goff Post Article on the Applicability of Twombly to Affirmative Defenses on SSRN

Professor Richard A. Bales (N. Kentucky) and Melanie Goff have recently published an article entitled A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses on SSRN. Here is the abstract:

The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.

The article may be downloaded at

Prof. Welsh Posts Article on Summary Jury Trials and Twombly

Prof. Nancy Welsh recently posted an article entitled on SSRN. Here is the abstract.

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized claimants - and our society - of alternative, effective avenues for the airing and resolution of disputes with powerful institutional players. Ironically, it was just this sort of deprivation that led the Supreme Court to announce its expansive vision of notice pleading in Conley v. Gibson. Conley foretells the need for our courts to maintain a robust public forum for those who are marginalized by the default procedures of normal life - not only to provide redress to the parties directly involved in particular disputes but because the viability of such a forum has the indirect and salutary effect of forcing institutional players to find a way to sufficiently approximate the fair dialogue and resolution modeled in our courts. In an attempt to acknowledge legitimate concerns regarding the inefficiency and costs of today’s civil litigation process in some cases, while still protecting the courts’ essential role in providing a forum for marginalized parties, this Article will suggest that courts take a second look at the summary jury trial, an expedited form of trial conducted before an advisory jury and followed by negotiation or mediation between the parties and their lawyers. Relatively early and appropriate use of this process could effectively prompt resolution and dialogue - i.e., private dialogue between the parties before the process is to occur; a stylized form of public dialogue during the trial phase of the process itself; and another private dialogue, potentially with assistance from a judge or mediator, after the advisory jury has been dismissed.

This article may be downloaded by visiting

Friday, January 14, 2011

Prof. Meier Posts Pleading Article on SSRN

Professor Luke Meier (Baylor) has posted an article entitled “Why Twombly is Good Law (But Poorly Drafted) and Why Iqbal Will Be Overturned,” on SSRN. Here is part of the abstract:

In the attempt to decipher what is required to plead a claim for relief in federal court after the Supreme Court’s decisions in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, commentators have usually combined these two cases as being part of the same "revolution" in pleading. The Iqbal case is often credited for clearing up lingering questions regarding the scope of the "plausibility" analysis introduced in Twombly. Apart from this issue, however, Twombly and Iqbal have usually been discussed as a cohesive pair. They have been jointly criticized. Occasionally, they have been jointly praised.
The tendency to view Twombly and Iqbal as a collective unit has, unfortunately, interfered with efforts to understand pleading doctrine. The cases have dissimilar analytical foundations. In short, the Twombly decision can be justified as merely an application of preexisting principles regarding pleading; the Iqbal case, however, was wrongly decided and is destined to be overruled. To jointly criticize both opinions is to throw the baby (Twombly) out with the bathwater (Iqbal); to jointly praise both opinions, to continue the analogy, is to miss how dirty the bath water is in which the baby is sitting. Until Twombly and Iqbal are decoupled and considered as separate entities, pleading jurisprudence will continue in a state of disarray.

It is not necessarily surprising that academic commentators have treated Twombly and Iqbal as one-in-the-same. The Court’s Iqbal opinion reads as though it is a simple application of the Twombly decision. It is likely that the Iqbal Court even thought as much. The underlying problem is the Twombly opinion.

The Twombly opinion is muddled on three critical points. All three of these points are necessary to an understanding of the Twombly case. The inarticulate manner in which these points were discussed in Twombly is largely responsible for the confused status of pleading doctrine; it is also the source of the erroneous decision in Iqbal. Because of the ambiguity in the Twombly opinion, it was interpreted by the Iqbal Court in a manner that was inconsistent with prior Supreme Court precedent.

This Article can be downloaded at