The Northern District of Illinois recently applied the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (200) to affirmative defenses in an unsolicited fax advertisement case brought pursuant to the Telephone Consumer Protection Act (“TCPA”). See Mussat v. Power Liens, LLC, Case No. 13-7853, 2014 U.S. Dist. LEXIS 141561 (N.D. Ill. Oct. 6, 2014). The decision is in conflict with a recent Eastern District of Michigan TCPA decision, whereby the court held that the plausibility standard did not apply to affirmative defenses. See Exclusively Cats Veterinary Hospital, P.C. v. Pharmaceutical Credit Corp., Case No. 13-14376, 2014 U.S. Dist. LEXIS 132440 (E.D. Mich. Sept. 22, 2014). The majority view on the issue is that the textual differences between Federal Rule of Civil Procedure 8(a) which deals with claims and 8(b)-(c) which addresses defenses prevents the application of the plausibility standard to affirmative defenses. The Mussat court, however, reasoned that “[a]ffirmative defenses are pleadings and, therefore, are subject to all of the pleading requirements of the Federal Rules of Civil Procedure.” The Mussat case illustrates the inconsistent application of pleading standards to defenses among the district courts, highlighting the need to have the issue resolved.
For more information on the Mussat case and/or the TCPA generally, contact Katherine Olson at (312) 334-3444 or firstname.lastname@example.org.