Sunday, October 10, 2010
Alex Reinert (Cardozo School of Law) has posted The Costs of Heightened Pleading to SSRN.
In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Iqbal and Twombly, on many accounts, two-stepped the Court from notice to heightened “plausibility” pleading for all civil cases. And it garnered applause and withering criticism. No one seems willing to defend the process that the Court used to abandon fifty years of pleading law — shorn as it was of any attention to the procedures contemplated by the Rules Enabling Act — but as a substantive matter, heightened pleading has many adherents. For heightened pleading advocates, it promises to reduce crowded dockets, make discovery available only to worthy litigants, and generally improve the quality of litigation to which attorneys and federal courts devote their attention. And at the bottom of it all lies a fundamental assumption — notice pleading lets in too many worthless cases and heightened pleading will keep them out. Despite this assumption, however, there has been almost no empirical analysis of the connection between merit and pleading.
This Article critically intervenes in this discussion by providing empirical data to question the widespread assumption about the benefits and costs of heightened pleading. The data reported here show that pleadings that would get by under a notice pleading standard but not a heightened pleading standard — what I refer to as “thin” pleadings — are just as likely to be successful as those cases that would survive heightened pleading. Indeed, the research summarized in this Article, gathered through a novel retrospective analysis of appellate and trial court decisions from 1990-1999, suggest that there is no correlation between the heft of a pleading and the ultimate success of a case.
This Article certainly does not end the debate, but it is better to begin on solid empirical footing than on supposition alone. Although there are limitations to the data reported here, they are more than we have had before, and they call attention to the costs of heightened pleading even as they suggest avenues for further research. As Congress, the judiciary, and the academy are engaged in a critical discussion as to how to respond to the Supreme Court’s most recent alteration of pleading jurisprudence, relevant empirical data should be part of the conversation.
Hillel Y. Levin (University of Georgia School of Law) has posted Iqbal, Twombly and the Lessons of the Celotex Trilogy to SSRN.
This Essay compares the Twombly/Iqbal line of cases to the Celotex trilogy and suggests that developments since the latter offer lessons for the former. Some of the comparisons are obvious: decreased access and increased judicial discretion. However, one important similarity has not been well understood: that the driving force in both contexts has been the lower courts rather than the Supreme Court. Further, while we can expect additional access barriers to be erected in the future, our focus should be on lower courts, rather than other institutional players, as the likely source of those barriers.
Monday, October 4, 2010
Now in print in the latest issue of the Duke Law Journal is an article by Professor Arthur Miller (NYU) entitled From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1 (2010). Here’s the abstract:
This Article discusses the effects of the recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on the model of civil litigation established by the Federal Rules of Civil Procedure in 1938. Those Rules created a procedural system giving a litigant, using plain language and presenting the essential elements of a claim for relief, an opportunity to pursue discovery and have his or her rights adjudicated on the merits. This Article discusses the basic values underlying that system and its importance in promoting broad citizen access to our federal courts and enabling the private enforcement of substantive public policies.
The Article then discusses how Twombly and Iqbal have destabilized both the pleading and the motion-to-dismiss practices as they have been known for over sixty years. The cases are seen as the latest in a sequence of increasingly restrictive changes during the last quarter century. These have created expensive and time-consuming procedural stop signs that produce earlier and earlier termination of cases, thereby increasingly preventing claimants from reaching trial—particularly jury trial. This Article contends that there has been too much attention paid to claims by corporate and other defense interests of expense and possible abuse and too little on citizen access, a level litigation playing field, and the other values of civil litigation. Much fine-grained empirical research is needed to separate fact from fiction.
This Article finds that setting significantly higher and more resource-consumptive procedural barriers for plaintiffs and moving to the ever-earlier disposition of civil suits—now exacerbated by the two Supreme Court decisions—runs contrary to many of the values underlying the Federal Rules. Concluding that the Court’s preoccupation with defense costs is misplaced and its belittlement of case management as a way of cabining those costs is unpersuasive, the Article offers several proposals that the Advisory Committee on Civil Rules (or Congress) might consider to reverse recent developments and ameliorate some of their negative aspects.
Ultimately, the Article asks a basic question: after Twombly and Iqbal, is our American court system still one in which an aggrieved person, however unsophisticated and under-resourced he may be, can secure a meaningful day in court? Finding that the important values of civil litigation are in jeopardy, this Article urges that the egalitarian, democratic ideals espoused by the original Federal Rules not be subordinated to one-dimensional claims of excessive litigation costs and abuse that have not been validated.
PS: Miller writes that his title “seeks to evoke the image of Joe Tinker, Johnny Evers, and Frank Chance, Hall of Fame Chicago Cubs infielders in the early years of the twentieth century, whose remarkable double-play skills were immortalized in a poem by Franklin Pierce Adams in the New York Evening Mail on July 12, 1910.” Particularly timely as we gear up this week for baseball’s post-season (exactly 100 years later).
Tuesday, September 28, 2010
Prof. Suja Thomas (Illinois) has posted on SSRN her forthcoming essay, Oddball Iqbal and Twombly and Employment Discrimination, to be published in the University of Illinois Law Review. Here’s the abstract:
This brief Essay argues that Bell Atlantic Corp. v. Twombly was an oddball case, a massive antitrust action with significant costs, much different than the vast majority of cases in the federal courts. While the Supreme Court and some scholars including Professor Richard Epstein have largely justified the new plausibility standard in Twombly on the basis of these costs, they have not shown why the new standard should apply transsubstantively to cases without these same costs, including typical employment discrimination cases. This Essay further argues that Ashcroft v. Iqbal like Twombly was also an oddball case, though with different types of costs than Twombly. Finally, contrary to Professor Epstein, this Essay argues that the standard under Iqbal and Twombly is likely to be procedurally revolutionary in employment discrimination cases. Indeed, the new standard could lead to a revolution due to the convergence of the new motion to dismiss standard with summary judgment and the effective death of Swierkiewicz v. Sorema N.A.
Friday, September 10, 2010
Now available on SSRN are several contributions to the Penn State Law Review's symposium on Ashcroft v. Iqbal. They include:
Kit Kinports, Iqbal and Supervisory Immunity
Victor C. Romero, Interrogating Iqbal: Intent, Inertia, and (a Lack of) Imagination
Shoba Sivaprasad Wadhia, Business as Usual: Immigration and the National Security Exception
Nancy Welsh, I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution
Thursday, August 19, 2010
Thursday, July 22, 2010
Professor James Maxeiner (Baltimore) has posted on SSRN his article, Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, a Day in Court and a Decision According to Law, 114 Penn State L. Rev. ___ (forthcoming 2010). Here’s the abstract:
The Iqbal decision confirms the breakdown of contemporary American civil procedure. We know what civil procedure should do, and we know that our civil procedure is not doing it. Civil procedure should facilitate determining rights according to law. It should help courts and parties apply law to facts accurately, fairly, expeditiously and efficiently. This article reflects on three historic American system failures and reports a foreign success story.
Pleadings can help courts do what we know courts should do: decide case on the merits, accurately, fairly, expeditiously and efficiently. Pleadings facilitate a day in court when focused on deciding according to law. Pleadings are, however, only part of the process of determining rights and of applying law to facts. They cannot do it all. Their utility is limited by the interdependent nature of determining law and finding facts to apply law to facts.
The United States has had three principal systems of civil procedure; all three have failed. The United States has used three principal forms of pleading - common law pleading, fact pleading, and notice pleading; all three have proven in-adequate. None has achieved both accuracy and expedition; none has managed both fairness and efficiency. Although wildly different in what they have required of pleading, all three systems of civil procedure have shared common flaws: they have expected too much of lawyers and not enough of judges. They have allowed issue deciding to substitute for law applying.
Since 1877 Germany has had only one system of civil procedure; that system has worked well. It has stood the test of time. Its unchallenged and unchanged basic principle is that parties provide facts and courts apply law. Da mihi factum, dabo tibi jus. Parties and courts cooperate. Pleading is only the beginning of that cooperation. Pleading leads directly to a day in court. Pleading directs the court down the path to a decision according to law.
Monday, June 28, 2010
Prof. Scott Dodson (William & Mary) has published Justice Souter and the Civil Rules in the Washington University Law Review Commentaries. From the text:
Justice Souter appears to have shied away from writing opinions that addressed the civil rules for most of his tenure on the Court. The first opinion he wrote—either for the Court or for himself—that directly addressed a federal civil rule was Ortiz v. Fibreboard Corp., issued almost a decade after he joined the Court. Over the next eight years, he authored only one other opinion on the civil rules, dissenting in Mayle v. Felix. After mid-2007, however, Justice Souter showed considerably more willingness to write on the civil rules. In the span of a little over two years, he authored the blockbuster pleadings case, Bell Atlantic Corp. v. Twombly; a passionate dissent in Bowles v. Russell; and a dissent in Twombly’s equally important progeny, Ashcroft v. Iqbal.
A survey of these five opinions by Justice Souter reveals that he is not uniformly historicist, textualist, formalist, instrumentalist, pragmaticist, or minimalist when it comes to the civil rules. It does, however, manifest a commitment to construing the civil rules in a way that would treat litigants fairly in court.
Friday, June 25, 2010
The Washington State Supreme Court decided yesterday to maintain the pleading standard that has long applied in Washington state courts, rebuffing a request to adopt the federal pleading standard that the U.S. Supreme Court embraced in Twombly and Iqbal. The decision is McCurry v. Chevy Chase Bank (No. 81896-7). Here’s an excerpt (footnote and some citations omitted):
Chevy Chase urges this court to reconsider the standard for dismissing a motion under CR 12(b)(6) in light of changes in the United States Supreme Court case law regarding Fed. R. Civ. P. 12(b)(6). Under CR 12(b)(6) a plaintiff states a claim upon which relief can be granted if it is possible that facts could be established to support the allegations in the complaint. See Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978) (“On a [CR] 12(b)(6) motion, a challenge to the legal sufficiency of the plaintiff’s allegations must be denied unless no state of facts which plaintiff could prove, consistent with the complaint, would entitle the plaintiff to relief on the claim.”); see also Christensen v. Swedish Hosp., 59 Wn.2d 545, 548, 368 P.2d 897 (1962) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
However the United States Supreme Court has recently revised its dismissal standard under Fed. R. Civ. P. 12(b)(6), permitting dismissal unless the claim is plausibly based upon the factual allegations in the complaint – a more difficult standard to satisfy. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Chevy Chase encourages this court to similarly construe CR 12(b)(6). We decline.
The Supreme Court’s plausibility standard is predicated on policy determinations specific to the federal trial courts. The Twombly Court concluded: federal trial courts are incapable of adequately preventing discovery abuses, weak claims cannot be effectively weeded out early in the discovery process, and this makes discovery expensive and encourages defendants to settle “largely groundless” claims. See 550 U.S. at 557-58, 559. Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.
Nor has either party here addressed countervailing policy considerations. For example, do current discovery expenses justify plaintiffs’ loss of access to that discovery and general access to the courts, particularly in cases where evidence is almost exclusively in the possession of defendants? Could runaway discovery expenses be addressed by better means – perhaps involving more court oversight of the discovery process or a change in the discovery rules?
Although three Justices dissented, they agreed with the majority about the pleading standard. From the dissenting opinion: “My discussion of CR 12(b)(6) should not be confused with the Fed. R. Civ. Pr. 12(b)(6) standard articulated by the United States Supreme Court. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). I do not suggest we modify our rule to align with the federal “plausible” standard in our decision today.”
(Hat Tip: Brooke Coleman)
Tuesday, June 22, 2010
We blogged earlier about Supreme Court nominee Elena Kagan’s civil procedure paper trail.
As for her views on one of today’s most controversial issues in civil procedure — federal pleading standards — a recent New York Times article starts with an interesting story about Kagan’s service in the Clinton administration. Kagan’s first Oval Office presentation involved the 1995 Private Securities Litigation Reform Act (PSLRA), and Kagan expressed particular concern about the Act’s heightened pleading standards. From the article, Bill Clinton Speaks Out on Kagan:
“Against the wishes of his economic team and top Congressional Democrats, Mr. Clinton in late 1995 was considering vetoing new legislation that was framed as a way to halt frivolous lawsuits against the securities industry. At his direction, Ms. Kagan had analyzed the bill and determined that it would raise the bar so high for such suits that shareholders could be prevented from pursuing legitimate fraud claims. . . . Mr. Clinton accepted her judgment and issued a surprise veto — one of two occasions when he was overridden by Congress.”
Perhaps a Justice Kagan will be similarly concerned about the direction of federal pleading standards after Twombly and Iqbal?
Wednesday, June 2, 2010
Prof. Kevin Clermont (Cornell) has posted on SSRN his essay Three Myths About Twombly-Iqbal. Here's the abstract:
This essay tries to convey the meaning of the recent revolutionary cases on federal pleading law. To do so, it refutes the three leading myths about the Twombly and Iqbal cases and thereby establishes these three propositions: First, the Supreme Court has not revived code-based fact pleading. This first conclusion implies that the codes’ law/fact distinction plays no role in applying the new screening of allegations for conclusoriness, and it also implies that the courts should not apply the new test for plausibility to each allegation but only to the ultimate assertion of liability. Second, we academics must beware of overstating the scope of the new cases. Their holdings apply only to claimants’ pleadings, and indeed only to allegations on the merits. Third, we must also beware of reading optimistically the opinions’ evident confusions to infer an aimless Court. Its rather steady purpose indicates that the Justices mean business as pleading revolutionaries.
Thursday, May 20, 2010
Iqbal-Twombly anniversary week continues with this decision from the Third Circuit. Mayer v. Belichick affirms the district court's dismissal of a claim by a Jets season ticket holder (New York, not Winnipeg) arising out of the Spygate videotaping scandal.
For additional coverage, see How Appealing.
Tuesday, May 18, 2010
The Supreme Court’s controversial pleading decision Ashcroft v. Iqbal celebrates(?) its first anniversary today. Coincidentally, today is also the day that my article, The Pleading Problem, 62 Stanford L. Rev. 1293 (2010), is officially in print. Here’s the abstract:
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference.
This approach is able to reconcile Twombly and Iqbal with pre-Twombly authority. Indeed, a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood fifty-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; only then does the "plausibility" of an entitlement to relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.
The citation count data in the article's appendix reveals that Iqbal has had quite a prolific first year on the books. It is already among the most frequently cited Supreme Court decisions of all time.
The 11th Circuit has nixed a RICO class action brought by dentists against the insurers who reimburse them for services on the grounds that the complaint does not meet the Twiqbal plausibility requirements.
Aside from being an interesting decision, I couldn't help but be amused by bad dentist related puns in this news report from the National Law Journal:
[The plaintiff's lawyer] said that he sensed defeat during oral arguments. "It was clear from the minute I opened my mouth," he said. "The Court of Appeals was a buzzsaw."
Friday, May 14, 2010
The current issue of U.S. Law Week includes the following stories:
(1) Twombly, Iqbal Introduce More Subjectivity To Rulings on Dismissal Motions, Judge Says (78 U.S.L.W. 2667) reports on a discussion of Twombly and Iqbal that occurred at a recent meeting of the ABA Litigation Section.
(2) Federal Law Includes Permissive Claims Within Supplemental Jurisdiction Definition (78 U.S.L.W. 1699) reports on a recent First Circuit decision (Global NAPs Inc. v. Verizon New England Inc., No. 09-1308, 2010 WL 1713240, 2010 U.S. App. LEXIS 8929) that applies the supplemental jurisdiction statute (28 U.S.C. § 1367) to counterclaims.
Thursday, May 13, 2010
The Second Circuit's recent decision in Arista Records LLC v. Doe 3, No. 09-0905, 2010 WL 1729107, 2010 U.S. App. LEXIS 8879 (2d Cir. Apr. 29, 2010), may prove to be a very significant one as federal courts continue to struggle with federal pleading standards after Twombly and Iqbal.
The opinion emphasizes that Twombly and Iqbal have not set aside fundamental aspects of the pre-Twombly regime, noting their consistency with the Supreme Court's 2002 decision in Swierkiewicz v. Sorema N.A. and Twombly's endorsement of the "fair notice" standard from Conley v. Gibson:
Monday, May 10, 2010
Professor Lisa A. Eichhorn (University of South Carolina School of Law) has posted "A Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal" on SSRN. It will be published in the Florida Law Review.
The abstract states:
Tuesday, May 4, 2010
Today's U.S. Law Week features an article by David Borgen and Lin Chan entitled Clash of the Titans: Iqbal and Wage and Hour Class/Collective Actions (78 U.S.L.W. 2643). It begins:
"The U.S. Supreme Court's new pleading standards have set the stage for a new 'clash of the titans,' as emboldened employers seek to utilize their new weapon against the current heavyweight of the courts' dockets, the wage and hour class and collective actions. As expected, management counsel have rushed into the battlefield filing newly styled motions to dismiss. However, the wage-and-hour causes of action have proven to be resistant to this new attack."
Friday, April 23, 2010
As covered earlier here, an SEC civil action against defendants who were allegedly involved in the Bernie Madoff ponzi scheme was recently dismissed for failing to satisfy federal pleading standards. (See SEC v. Cohmad Securities Corp., No. 09-CV-5680, 2010 WL 363844, 2010 U.S. Dist. LEXIS 8597.)
"[W]e always thought the SEC had it easier than private plaintiffs because it could bring actions against aiders and abetters and didn't have to deal with pleading requirements of the PSLRA. I guess Iqbal somehow levels that playing field, although possibly not in the right direction.
"The Cohmad case seemed to be the easiest case to bring, and maybe it would have been for the DOJ, who operates under different and sometimes easier rules for securities cases than civil rules. Judge Stanton did dismiss without prejudice with leave to replead for 30 days, but that deadline passed over a month ago.
"So, will the Goldman complaint survive the inevitable Motion to Dismiss?"
We'll find out soon enough. No doubt the attorneys for Goldman Sachs and Fabrice Tourre are preparing their 12(b)(6) motions as we speak.
Monday, April 12, 2010
Daphna Kapeliuk and Alon Klement (Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted on SSRN their forthcoming article Contracting Around Twombly, 60 DePaul L. Rev. (forthcoming Oct. 2010). Here's the abstract:
The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have generated a heated debate over which is the most just and efficient transsubstantive pleading standard. Unlike the vast scholarship that followed these decisions, we do not take sides in this debate. Instead, we focus on a subset of cases in which litigants have prior contractual relationships. We argue that if contracting parties are allowed to contract around the Twombly pleading standard, they will be able to overcome problems of inadequate screening and to realize both pre-dispute and post-dispute opportunities that would prove unfeasible otherwise.
Hence, we propose a novel approach for addressing the question whether the Twombly standard performs better than its predecessor in contract cases. We suggest that the answer to this question should be informed by analyzing the costs of modifying the Twombly standard and the difficulties in implementing such modification, in addition to the proportion of cases where this modification would have been chosen by contracting parties. As we show, even if aggregatively, over all contracts, the Twombly pleading standard would have been chosen less often, it may still promise improved efficiency and justice in contract cases, due to the lower costs of contracting around it.
Thursday, April 8, 2010
"DRI announces its annual Law Student Diversity Scholarship program open to incoming second and third-year African American, Hispanic, Asian, Pan Asian and Native American students. Incoming second and third-year female law students are also eligible, regardless of race or ethnicity."
The deadline is May 3, 2010, and applicants must submit an essay (no more than 1,000 words) on the following topic:
Did Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal really break new ground and sound a death knell for plaintiffs in federal civil litigation; and is the “anti-Twombly and Iqbal” Notice Pleading Restoration Act of 2009 introduced by Senator Specter to require the federal courts to follow traditional civil procedure rules for filing lawsuits really necessary?
More details available here.
(Hat Tip: Austyn Sanders)