:: Motions To Strike Affirmative Defenses In ERISA Litigation – An Arrow In The Plaintiff’s Quiver

Plaintiffs are correct that this affirmative defense — particularly the last clause — is sufficiently vague as to fail to provide sufficient notice. While Defendants counter that they addressed the factual underpinning of this defense in the motion to dismiss, nothing in the language of the affirmative defense  ties it to the disclosure discussed in the motion.

While Defendants are correct that motions to strike are disfavored, the affirmative defense here is sufficiently vague as to warrant striking.

Trs. of the Local 464A UFCW Pension Fund v. Wachovia Bank, N.A., 2009 U.S. Dist. LEXIS 109567 (D.N.J. Nov. 24, 2009)

Defendants are increasingly tasked with articulating their defenses with clarity and specificity.  In this district court opinion in an ERISA case, the plaintiffs employ a motion to strike to eliminate several affirmative defenses set out in the defendants’ answer to the complaint.

“Bare Bones Conclusory Allegations”

The eleventh affirmative defense stated:

“Plaintiffs’ claims are barred … because Defendants have complied with all disclosure requirements under all applicable laws and informed Plaintiffs regarding matters concerning investments and risk.”

The Plaintiffs move to strike the eleventh affirmative defense, arguing that it failed to provide them with notice as to the nature of the defense and the legal basis therefor.  The court agreed.

Plaintiffs are correct that this affirmative defense — particularly the last clause — is sufficiently vague as to fail to provide sufficient notice.