May 23, 2022

Volume XII, Number 143

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May 20, 2022

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Give the Details! Court Strikes “threadbare” Affirmative Defense

On Tuesday in McGinity v. USAA Fed. Sav. Bank, No. 5:19-cv-560-BO, 2020 U.S. Dist. LEXIS 65133 (E.D. N.C. April 14, 2020), a North Carolina district court struck a defendant’s mitigation defense because the defendant did not provide “a requisite level of particularity and plausibility” in articulating it.  The decision provides an important lesson for any TCPA defendant answering a complaint: plead specific facts for each defense.

The defendant asserted “failure to mitigate” as an affirmative defense, but did not articulate any facts to support its defense.  Rather, the defendant’s single-sentence defense constituted a “bald assertion with no accompanying facts–much less facts that would permit the Court to draw a reasonable inference that would suggest a cognizable defense.” 

Helpfully too, the district court allowed the defendant’s separate setoff defense.  Unlike the mitigation defense, the defendant’s setoff defense included particular facts about the plaintiff’s failure to pay her credit card debt. For that defense, the defendant alleged “with particularity” that plaintiff “has not” fully performed “in connection with [her] credit card account.” The district court noted that the defendant’s setoff defense “even provides a dollar amount.” Unlike the threadbare mitigation defense, the defendant’s detailed allegations provided “a viable offset defense.” And so the district court declined to strike it.  

A TCPA defendant can save time and money by pleading with particularity each affirmative defense it has against a plaintiff’s TCPA claim. 

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 107
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About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

303-894-6111
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