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April 30, 2008
D.C. Circuit Joins the Twombly Fray
Prof. Scott Dodson has written for us before on Twombly (and other subjects). He has this to say about a recent D.C. Circuit case:
There has been much discussion on the impact of Bell Atlantic
v. Twombly, which set a “notice-plus” standard under Rule 8 for
antitrust conspiracy claims. Commentators (including myself) have written
and blogged about it (see my bibliography here),
and the circuits are beginning to weigh in as well, substantially—if not uniformly—interpreting
Twombly as having changed the pleading landscape beyond antitrust.
Today, the D.C. Circuit, in Aktieselskabet
AF 21 v. Fame Jeans, weighed in with a minority view. Judge
Brown, writing for herself and Judges Henderson and Rogers, wrote “We conclude
that Twombly leaves the long-standing fundamentals of notice pleading
intact.” The court stated that Twombly did not mean to “tighten
pleading standards.” Instead, Twombly is confined to its facts: “Twombly
determined that a certain set of factual allegations did not support an
inference that the defendants conspired in violation of the Sherman Act. . . . In sum, Twombly was
concerned with the plausibility of an inference of conspiracy, not with the
plausibility of a claim.” The D.C. Circuit relied upon Twombly’s
own language, Erickson
v. Pardus, the Federal Forms, and pre-Twombly cases like Swierkewicz v.
I confess that my own interpretation of Twombly is
less certain than the D.C. Circuit’s, but I welcome its voice to the
discussion. It presents a plausible (pun intended) interpretation of Twombly.
It does deepen the fracture among the circuits, but that is Twombly’s
fault, not the circuits’, and it just goes to show how badly the Supreme Court
needs to clarify exactly what it meant in Twombly. Perhaps now
that the circuit disagreement is becoming more pronounced, the Supreme Court
will take up that task.
Conflict disclosure: I was a consultant on the Twombly
portion of the briefs for the appellant in Aktieselskabet, whose
argument for a limited reading of Twombly was accepted by the D.C.
April 30, 2008 | Permalink
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Tracked on Sep 17, 2009 10:27:21 AM
I still don't understand what Aktieselskabet means then. If you make a direct allegation of conspiracy, then you are outside of Twombly? And, what suffices for a direct allegation?
Posted by: Ben Trovato | May 27, 2008 12:01:22 PM
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