Wednesday, December 2, 2009
The Senate Judiciary Committee heard testimony today from three witnesses on the impact of Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the two Supreme Court cases that heightened the federal pleading standard and resulted in a rash of dismissed suits and Senator Specter's bill, S. 1504, to undo those cases. We most recently covered this here; the Blog of the Legal Times covered the hearing here.
John Payton, President and Director-Counsel of the NAACP LDF, urged the Committee to act immediately to undo the cases. In contrast, Gregory Garre, former SG who argued Iqbal, testified that we can't yet know Iqbal's impact, and that any moves to undo that case are premature. Stephen Burbank (Penn) proposed substitute legislation (in Appendix A, page 23 of his testimony) that would return the pleading standard to its level before Iqbal and Twombly, would declare those cases "inconsistent with the fundamental premises underlying the Federal Rules of Civil Procedure, with the Court's previous decisions interpreting those rules, and with congressional expectations formed and relied upon over a period of more than seventy years," and would provide for a "thorough study by appropriate institutions through processes that are open and inclusive."
According to the BLT, only one Committee member, Jeff Sessions, supported Garre's position urging caution.