Late last year we published the post "
Twiqbal for Defendants? Not If We Can Help It." on the
issue of whether the "plausibility" standard of
Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S 662 (2009),
applied to "affirmative defenses (which we prefer to just call
"defenses) pleaded under Fed. R. Civ. P. 8(c). Basically, our
two responses to the proposition that Rule 8(c) defenses could be
TwIqballed were "no" and "hell,
no."
In addition to amassing District Court precedent from every
circuit, we relied on several opinions from federal courts of
appeals, citing cases from the Third, Sixth, Seventh, and Ninth
Circuits.
Well, the circuits are no longer unanimous. To make sure nobody
on our side is misled, we feel we ought to mention the new
decision, GEOMC Co. v. Calmare Therapeutics Inc.,
918 F.3d 92, 94 (2d Cir. 2019), which largely, but not entirely,
holds that the absolute anti-TwIqbal position we
took in that post is all
