One year after Ashcroft v. Iqbal, federal courts throughout the country are still struggling to deal with the ramifications of the U.S. Supreme Court's decision regarding the appropriate standard of review for motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 In light of Iqbal's widespread impact, some issues are already leading to inconsistency within the federal system. This article will address two of the most prominent issues that have been implicated in recent lower court opinions. First, a disagreement among the circuits is beginning to emerge as to the proper definition of the plausibility standard. Second, a significant rift has already developed over whether the standard set forth in Bell Atlantic Corp. v. Twombly3 and Iqbal applies to affirmative defenses.

Prior to the Court's shift in Twombly, the pleading standard was controlled by the Court's 1957 decision in Conley v. Gibson.4 Under Conley, a pleading was considered sufficient to survive a motion to dismiss unless the plaintiff could prove "no set of facts" that would allow his claim to prevail.5 For the next 50 years, Conley and the "no set of facts" standard reigned supreme over all civil actions.

In 2007, however, the Court departed from Conley by discarding the "no set of facts" standard and moving in an entirely new direction.6 The Court in Twombly observed that "after puzzling the profession for 50 years, this famous observation has earned its retirement."7 In moving away from the Conley standard, the Court held that a plaintiff must provide enough facts within a complaint to "state a claim to relief that is plausible on its face."8 In Twombly, the Court concluded that factual allegations were not adequate to establish an antitrust conspiracy claim.9 In the complaint, the plaintiff detailed parallel conduct between competitors but did not identify any agreement to conspire.10 The Court found this to be insufficient because there was an "obvious alternative explanation" that provided a lawful reason for the defendant's actions.11 After Twombly, commentators struggled to identify the new standard and questioned whether Twombly applied to all civil cases or was merely limited to antitrust actions.12