On March 12, 2019, the Second Circuit Court of Appeals issued an Opinion in GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, which clarifies the previously amorphous standard for pleading affirmative defenses.

The Second Circuit’s Opinion in GEOMC held for the first time that defendants must satisfy Twombly’s plausibility standard in order to adequately plead affirmative defenses. District courts were deeply divided over whether Twombly, or a lesser pleading standard, applied to affirmative defenses. The Second Circuit clarified that Twombly governs, but with the caveat that the standard is “context-specific,” and may be relaxed based on considerations such as (i) the relatively short period of time defendants typically have to gather evidence in support of an answer, and (ii) the limited availability of evidence relating to certain affirmative defenses. The Second Circuit also held that an untimely affirmative defense may properly be dismissed where it would prejudice the plaintiff.
In light of the Second Circuit’s decision, defendants in federal court, and especially federal courts within the Second Circuit, should plead facts to support their affirmative defenses in anticipation of a potential attack. Plaintiffs, on the other hand, may consider moving to dismiss deficient or inadequately pled affirmative defenses in order to avoid the burden and expense of being forced to engage in discovery relating to meritless defenses.
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Michael Lynch
(212) 808-5082
mlynch@kelleydrye.com

Joseph Boyle
(973) 503-5950
jboyle@kelleydrye.com

Levi Downing
(212) 808 7812
ldowning@kelleydrye.com

Second Circuit Requires Defendants to Satisfy Twombly’s Plausibility Standard to Sustain Affirmative Defenses