Reinterpreting Iqbal and Twombly

In 2007 and 2009, the Supreme Court of the United States stopped the downward slide in federal pleading standards by establishing a bare-minimum pleading rule for plaintiffs proceeding in federal court.  In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court took the very common-sense approach that a plaintiff has to actually plead facts that plausibly suggest that the defendant may be liable to the plaintiff.  Gone are the days when plaintiffs could waltz into court by merely presenting a shell of a complaint setting forth legal standards alleged to be violated, but without actually pleading any facts that support that conclusion.  Were it not for the fact that the judiciary is not in the habit of applying the plain meaning of the federal rules, the Supreme Court's holding in Iqbal-Twombly would not be so suprising to the bar.  After all, Rule 8(a) requires a short and plain statement of the claim showing that the pleader is entitled to relief, and it is hard to see how anyone can show that he is entitled to relief without pleading actual facts.

Lately, plaintiffs have been trying to use Iqbal and Twombly to their advantage by arguing that the plausiblility standard announced in those cases also applies to affirmative defenses asserted by defendants.  Although the plaintiffs' bar has been successful in swaying a number of federal district courts to their side, I predict that it will ultimately be deemed incorrect either by the federal courts of appeals or by the Supreme Court.  Over the course of the next few days, I will explain why.