Monday, February 13, 2012
Professor Lonny Hoffman's article, "Twombly and Iqbal's Measure: An Assessment of the Federal Judicial Center's Study of Motions to Dismiss" has just been published at 6 Fed. Cts. L. Rev. 1 (2012), available here.
The abstract reads:
This paper provides the first comprehensive assessment of the Federal Judicial Center’s long-anticipated study of motions to dismiss for failure to state a claim after the U.S. Supreme Court’s decision in Ashcroft v. Iqbal. Three primary assessments are made of the FJC’s study. First, the FJC’s findings do not indicate that the Court’s decisions have had no effect on dismissal practice. To the contrary, the FJC found that after Iqbal, a plaintiff was twice as likely to face a motion to dismiss. This sizeable increase in the rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades and means, among other consequences, added costs for plaintiffs. Similarly, the data regarding orders resolving dismissal motions demonstrates the consequential impacts of the Court’s cases, as in every case type studied there was a higher likelihood after Iqbal that a motion to dismiss would be granted. Second, due to the inherent limitations of doing empirical work of this nature, the cases may be having effects that the FJC researchers were unable to detect. Comparing how many motions were filed and granted before Twombly with after Iqbal does not indicate whether the Court’s cases are deterring some claims from being brought, whether they have increased dismissals of complaints on factual sufficiency grounds, or how many meritorious cases have been dismissed as a result of the Court’s stricter pleading filter. Finally, the data the FJC researchers gathered may be incomplete, particularly as to the filing rate. As a result, the study may be providing an incomplete picture of actual Rule 12(b)(6) activity.