Does an Affirmative Defense in an Answer have to state factual grounds? Maybe

Iqbal & Twombly are two SCUS cases that essentially require a “heightened” set of facts (i.e., more detail) to be stated in the complaint in order to state a cause of action or the claim can be struck on motion. The question that has been floating around is whether or not that should apply to the affirmative defenses that a defendant may raise in their answer. Some courts around the country have said yes including this court’s Eastern Division, but as S.D. Ohio Western Div. Chief Mag. Judge Karen L Litkovitz just ruled in a FCRA case alleging incorrect credit reporting information, that isn’t required in there. McAfee v. Transunion, LLC 2024 U.S. Dist. LEXIS 162598, 2024 WL 4135006 (Sept. 10, 2024). Defendant raised 9 often seen defenses with mere statements and no supporting facts: failure to state a claim, the credit reports were true, they followed reasonable procedures, statute of limitations, estoppel, waiver, laches, failure to mitigate, damages were caused by plaintiff’s acts/omissions or non-parties (the group sometimes referred to as “the usual suspect” defenses).

Plaintiff pro se then filed a Rule 12(f) motion to strike the defenses, pointing out that defendant did not file a motion to dismiss or move for summary judgment on any of the issues.

Noting that the 6^th Circuit has never really addressed the question of whether or not Iqbal-Twombly’s heightened pleading applied to affirmative defenses, and that the Southern District Courts were split on the issue (citations in opinion), the court declined to require it here, noting that the objective was merely to “give fair notice to plaintiff of the nature of the defenses” and also that the plaintiff pro se attempt to support his argument by claiming his cases to be “the law of the district” was rejected “because there is no such thing as “the law of the district” (citations in opinion).

While this court’s decision certainly seems sound in the specific jurisdiction where it occurred, defense counsel may be ignoring the longer range effect of raising some of these so-called affirmative defenses since they really are not affirmative defenses at all but merely denials of elements of some claims. Moreover, in a fee-shifting case like the FCRA or Ohio’s CSPA and many other statutes, they open up relevant fact-driven avenues which a plaintiff must explore with full-blown discovery since a successful affirmative defense can wipe out their case, thereby increasing the attorney fees and costs for all the parties, which may come back to “bite” the defense if the plaintiff prevails and then files for more attorney fees than might have occurred and blames the defense for causing it. Still, the well-heeled nature of some corporate defendants when combined with the nature of defending by raising every argument possible, plants the seed. 

Ultimately, the real question is simply who is going to reap what gets sowed. In a fee-shifting case, that may not be the defendant.

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• There are at least half a dozen attorney fee decisions issued by courts every day.
• Somewhere, someone is writing a fee motion or memo in opposition, and somewhere, someone is getting a fee decision every day.
• For over 20 years I have studied attorney fee litigation and fee motions nationwide, reading an average of a dozen or more fee decisions every week. It still surprises me to see the variety of motion styles, content, and results. 
• To help everyone do their job better, I offer some tips below, that I see working every day. 
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How to Support Billable Rates in a Lodestar-based Fee Petition

The fee motion/petition states your case for awarding fees. It is supported by your affidavit and evidentiary attachments, which is evidence. The motion and your affidavit are supported by a non-party attorney or expert witness affidavit, which is evidence.

Suggested content to consider for each of these is listed below, and can be further explained in considerable further detail and length separately. But bear in mind that there is much more to a successful fee motion than merely providing that which is listed below, but this is where a successful fee motion starts.

The Motion/Petition:

1.         Briefly summarize the salient facts of the dispute, the dispute’s litigation history with appropriate emphasis, and establish the status of prevailing party

2.         Identify entitlement, the purpose of and legal basis upon which fees may be awarded to the movant

3.           State the motion’s question(s) at hand (what is a reasonable fee/costs in this case, etc)

4.         Specify the relief you want (i.e., the total hours, the hourly rate of each time-keeper, and the total fees and costs award sought)

5.      State the applicable legal standard(s) and the accepted process for making the decision(s), i.e., determining a reasonable fee using the Lodestar approach and the 12 Johnson factors

6.          Identify the undisputed and disputed issues in the motion

7.         Identify the evidence you are submitting on the disputed issues, explaining what each piece is and why it matters to the disputed issues

8.        (If applicable) identify sparsity of available, knowledgeable attorneys in applicable legal market area

9.           (If applicable) briefly discuss settlement efforts and degree of success

10.         Discuss use of billing discretion

11.       If Survey evidence is submitted, explain methodologies employed to establish accuracy/reliability of results (Survey Report should provide this)

The Affidavit/Declaration of Movant Attorney:

1.                Affiant identity, professional background,

2.               General and Niche Area education, training, experience

3.               Relevant professional recognition, accomplishments, publications related to niche area of law or case

4.               Relevant CLE taught or attended by movant attorney/paralegal on niche area of law or case

5.               Opinion and knowledge of sparsity of available, knowledgeable attorneys in applicable legal market area and basis for it and basis for knowledge

6.               Authenticate affiant’s attached CV

7.        Movant attorney’s knowledge of Paralegal(s) professional background, education, training, experience and basis for knowledge

8.               Time frame and subject matter of case work

9.          Authenticate Time and Costs Business Records, recordkeeping methodology, billing discretion effort

10.            Opinion and knowledge of reasonable hourly rates currently charged and rates sought in motion per Timekeeper and basis for knowledge

11.             Movant attorney’s relevant prior fee awards

12.             Other comparable fee awards in jurisdiction, in niche area of law, and/or by judge on the case

13.             Movant attorney’s comments on application of each Johnson factor to case

14.             Summary statement of any unusual problems, aspects of case that contributed to time or effort

15.             Explanation of any attached supporting documentation, survey report, etc

16.             Final Statement of each timekeeper’s hourly rate and accumulated time for case, and the total fee and costs requested

17.             Explanation of any attached supporting documentation, survey report, etc

18.           If Survey evidence is used, examine and consider use of all applicable survey charts, giving greater weight to those with more applicability to the case at hand; start with the applicable median rate and use other variability charts to modify the initial median and conclude by adjusting for inflation using the CPI online Calculator.

The Affidavit/Declaration of non party Supporting Attorney/Expert Witness:

1.                Affiant identity, professional background, education, training, experience

2.               Identify and authenticate affiant’s attached CV

3.        Opinion and knowledge of movant attorney/Paralegal’s practice area, reputation, standing in the legal community and basis for knowledge

4.               Opinion and knowledge of case’s niche area of law

5.              Opinion of sparsity of knowledge level in local legal community of case’s niche area of law and basis for knowledge

6.             Opinion and knowledge of difficult aspects of handling case’s niche area of law and basis for knowledge

7.             Opinion and knowledge of marketplace hourly rate(s) for case’s niche area of law and basis for knowledge, including, where appropriate, the affiant’s hourly rate

8.           Opinion and knowledge and reasonableness of movant attorney/Paralegal’s current hourly rate and rates sought in motion per Timekeeper and basis for knowledge

9.               (If applicable) opinion and knowledge of reasonableness of total and/or selected task hours in case and basis for knowledge

10.            (If applicable) Discuss evidence of billing discretion

11.            Where appropriate and possible, the nonparty attorney’s specific knowledge should be explained in appropriate detail.

Class Action Note: Most of the minimum contents for the Movant’s Lodestar Approach affidavit remain necessary or useful in the Common Fund Percentage approach, but bear in mind that in most if not all cases the Lodestar calculation is used by the court to “cross check” the reasonableness of the Common Fund’s percentage result. For that reason the movant’s affidavit should first focus on the evidence supporting the percentage approach and its result, by providing citations to cases showing the specific percentage commonly applied by the local court in similar cases. Should a percentage outside the norm be sought, the movant should provide specific evidence that explains and justifies seeking a percentage that is higher or lower than the jurisdiction’s normal common fund percentage award. Focus should also include an analysis and discussion of the benefits to the common fund beneficiaries, including both amounts and time saved and other aspects of the case result that benefitted both the fund and the beneficiaries.