James Sigel and Adam Sorensen authored an article for
the Daily Journal covering the 9th Circuit U.S.
Court of Appeal's recent decision in KST Data v.
Enterprise Services, where the court held that defendants do
not necessarily waive their affirmative defenses by failing to file
a new answer when a plaintiff files an amended complaint.
"The court's decision...shows how amended pleadings can
be something of a minefield for defendants," the authors
wrote. "While Enterprise prevailed on appeal, it came very
close to losing its strongest arguments in the trial court even
after asserting them in its initial answer. And defendants cannot
assume that their failure to file answers will always be harmless.
Under the 9th Circuit's reasoning, minor differences between
the plaintiff's complaints could have altered the outcome: A
new answer might have been necessary to preserve affirmative
defenses if the plaintiff had added different claims or new factual
allegations. Moreover,
