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This is a relatively short post because a(nother) snowstorm has closed the ReedSmith Philly office and we’re working remotely.  Over the week or so we’ve been sent a couple of articles that we think could be useful to defense counsel, so we’re passing them along today.

The first is a law review article, “The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses,” sent to us by its author, Charleston School of Law professor Bill Janssen.  While he sent it to us in hard copy (the cite is 70 Wash. & Lee L.R. 1573), it’s also available online, here.  The issue it addresses is not of cosmic importance, but it’s an annoyance – whether the other side can try to TwIqbal our affirmative defenses.  We’ve touched on this issue before, here, but only briefly, stating:

We won’t go any further than to re-emphasize the point that the Twombly/Iqbal requirements apply to every allegation governed by Rule 8(a) – which includes class action allegations, but presumably not affirmative defenses governed by Rule 8(c), which doesn’t contain the same “short and plain statement” language.  See, e.g., Davis v. Indiana State Police, 541 F.3d 760, 763 (7th Cir. 2008) (Twombly inapplicable to affirmative defenses).

Professor Janssen’s law review article takes on the issue of TwIqbal and affirmative defenses comprehensively – complete with a district-by-district chart of every decision he could find.  His conclusion:

The majority view held by the Nation’s district courts that have considered the question join Weddle v. Bayer AG Corp. [2012 WL 1019824 (S.D. Cal. March 26, 2012)] in holding that Twiqbal “plausibility” does not apply to the pleading of affirmative defenses. . . .  The persistent minority view . . . holds that TwIqbal applies.

70 Wash. & Lee L.R. at 1634.  So if some plaintiff tries to TwIqbal your affirmative defenses, you can save yourself considerable research time by checking out this article.

A second time saver is a 50-state survey – complete with helpful charts – of the comparative fault/contributory negligence law of every state and the District of Columbia.  This article was compiled by the (primarily subrogation) law firm Matthiesen, Wickert & Lehrer.  It separates out the various states by pure contributory negligence, pure comparative fault, modified comparative fault, and “slight/gross” comparative fault.  This article is the kind of thing we would have done, if we’d focused on this question – which we haven’t.  Because this other firm has, we’re passing their article along as a helpful resource.