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. Sorema.

 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. Circuit.