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James Sigel and Adam Sorensen authored an article for the Daily Journal covering the 9th Circuit U.S. Court of Appeal’s recent decision in KST Data v. Enterprise Services, where the court held that defendants do not necessarily waive their affirmative defenses by failing to file a new answer when a plaintiff files an amended complaint.

9th Circuit Settles Novel Question Over New Answers

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James Sigel and Adam Sorensen authored an article for the Daily Journal covering the 9th Circuit U.S. Court of Appeal’s recent decision in KST Data v. Enterprise Services, where the court held that defendants do not necessarily waive their affirmative defenses by failing to file a new answer when a plaintiff files an amended complaint.“The court’s decision…shows how amended pleadings can be something of a minefield for defendants,” the authors wrote. “While Enterprise prevailed on appeal, it came very close to losing its strongest arguments in the trial court even after asserting them in its initial answer. And defendants cannot assume that their failure to file answers will always be harmless. Under the 9th Circuit’s reasoning, minor differences between the plaintiff’s complaints could have altered the outcome: A new answer might have been necessary to preserve affirmative defenses if the plaintiff had added different claims or new factual allegations. Moreover, even filing a new answer can have pitfalls. An 11th Circuit decision distinguished in KST Data held that a defendant forfeited assertions made in an earlier answer when it failed to include them in a new answer to an amended complaint. Suffice it to say, defendants must be very careful when responding to amended pleadings.”Read the <a target="_blank" href="http:https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt2fa735dcf2b3b583/6273ee6c4d9f892971291aef/201208-9th-circuit-settles.pdf">full article</a>.