ACS
Login:

BookTalk

ACS BookTalk features posts by authors of books on pressing law or policy concerns. Click here to catch up on the latest.

This week's selection »

Blog

Topics

Join ACS

Featured Videos

More Videos »

Video Podcasts

More Podcasts »

Find a Lawyer Chapter or Student Chapter

Blogroll

Legal Blogs

Policy Blogs

Join The Conversation

LinkedIn

Archive
Home > Blog > All > Bell Atlantic v. Twombly

Bell Atlantic v. Twombly

  • December 21, 2011

    Measuring Twombly and Iqbal’s Impact on Access to the Courts: An Economic Model

    Guest Post

    By Jonah Gelbach, a senior research fellow at the Yale Department of Economics Program in Applied Economics and Policy and a Yale Law School student.

    The Supreme Court’s 2007 and 2009 opinions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal upended Conley v. Gibson’s famous rule that a complaint attacked by a Rule 12(b)(6) motion to dismiss for failure to state a claim should be dismissed only if there is no set of facts under which the complaint’s claims could entitle the plaintiff to relief. Instead, Twombly and Iqbal require a plaintiff’s complaint to include allegations making entitlement to relief not just logically possible, but plausible.

    Critics have attacked Twombly and Iqbal for both raising pleading standards and injecting subjectivity into Rule 12(b)(6) adjudication. Kevin Clermont and Stephen Yeazell characterize the post-Iqbal situation as “Pleading Left Bleeding.” Civil rights and employment discrimination cases have raised special concern. Their plaintiffs might be especially unable to meet elevated pleading standards without discovery, setting up a need-discovery-to-get-to-discovery Catch-22. Joshua Civin & Debo P. Adegbile wrote in an ACS issue brief that Twombly and Iqbal might “create an undesirable safe harbor that effectively places some defendants beyond the reach of civil rights laws.”

    Not everyone is disappointed, to be sure. For example, attorneys Mark Herrmann and James Beck have written that “out-of-control litigation prompted the Supreme Court in Twombly to adjust the threshold pleading requirements for unleashing the legal process.”

    Normative questions aside, some observers cite a report the Federal Judicial Center (FJC) issued in March 2011 for the proposition that Twombly and Iqbal haven’t actually affected much. The report found that “there was no increase in the rate of grants of motions to dismiss without leave to amend,” including among civil rights and employment discrimination cases.

    But the FJC report also found that the share of filed lawsuits that face a Rule 12(b)(6) motion to dismiss increased substantially after Twombly and Iqbal — more than 50 percent --  depending on the type of lawsuit involved. In my paper, “Locking the Doors to Discovery?,” forthcoming as a student Note in volume 121 of the Yale Law Journal, I argue that the increase in the proportion of Rule 12(b)(6) filings is evidence of a “defendant selection effect.” Defendants who are more confident of victory at the 12(b)(6) stage will file motions to dismiss against cases that are more strongly pleaded and that the defendants would have answered before Twombly/Iqbal. Clermont and Yeazell express this point colorfully, writing that a defense attorney “commits legal malpractice if he or she fails to move to dismiss with liberal citations to Twombly and Iqbal.”

    Thus, defendant selection should increase the average quality of complaints that face Rule 12(b)(6) motions to dismiss after Twombly/Iqbal. Given that there was little change in the rate at which these motions to dismiss were granted, the result is that the FJC report is actually powerful evidence in favor of the contention that Twombly and Iqbal have had a substantial impact. If defendants file motions to dismiss against a stronger set of complaints but win just as often, then judges must be dismissing complaints that they would not have dismissed before. The end result is that more cases fail to reach discovery than would have before Twombly and Iqbal.

    In my paper, I use an economic model to try to quantify the impact that Twombly and Iqbal have had in preventing claims from reaching discovery.

    More
    Tags:
    Access to Justice, Economic inequality, Procedural barriers to court, Supreme Court, Other courts, Pleadings standards, Constitutional Interpretation and Change, Equality and Liberty, Ashcroft v. Iqbal, Bell Atlantic v. Twombly, Guest Post
  • October 14, 2011

    In New SCOTUS Term, a New Test for Corporate Accountability

    by Nicole Flatow

    This week, the U.S. Supreme Court heard oral argument in a case about whether a consumer protection law that explicitly says “you have a right to sue” can be overridden by the fine print in a credit card contract.

    The case, in which plaintiffs are challenging hidden fees of as much as $257 on a card with a $300 limit, is the latest to test individuals’ ability to hold corporations accountable in the courts.

    Over the past few years, several important decisions have limited that right. In Wal-Mart v. Dukes, the court limited the scope of class actions in discrimination cases. In AT&T Mobility v. Concepcion, the court upheld a provision prohibiting class action lawsuits in a phone service contract. And in Ashcroft v. Iqbal and Bell Atlantic Corps v. Twombly, the court made it more difficult to initiate a civil lawsuit in court.

    But these are just a few of the decisions in which the Supreme Court has empowered corporations through “seemingly small” procedural rulings, explains Alan B. Morrison in his new ACS Issue Brief, “Saved by the Supreme Court: Rescuing Corporate America.” In fact, “[s]ince the late 1980s, on almost every occasion where big corporations have had a case of major significance in the High Court, the Court has ruled in their favor.” He explains:

    More
    Tags:
    Access to Justice, Class actions, Procedural barriers to court, Supreme Court, Constitutional Interpretation and Change, Alan Morrison, Ashcroft v. Iqbal, AT&T Mobility v. Concepcion, Bell Atlantic v. Twombly, Corporations and the Courts, Wal-Mart v. Dukes
  • August 3, 2011

    Individuals’ Access to Justice Imperiled on Multiple Fronts, Huffington Post Reports

    by Nicole Flatow

    Access to the courts is under assault on a number of fronts, at a time when more and more people have legal issues arising from the economic downturn, The Huffington Post reports.

    At the state level, slashed state court budgets have become a serious concern, resulting in significant staff resource cuts, reduced operating hours, increased fees and cases delayed for as long as ten years. “[M]any court advocates bristle that the third branch of government is being treated as nothing more than a state agency begging for scraps,” the article notes.

    Meanwhile, “the attack on courts at the state level is coinciding with one of the worst federal judicial crises the country has seen,” the article explains. Just last night, the Senate recessed for a full month without voting on 20 fully vetted nominees.

    Then there are legal services organizations, which are suffering blows in federal, state and private funding. While the economic downturn meant cuts to local and state funding for many organizations, and a loss of other sources of revenue such as Interest on Lawyer Accounts and private donations, the House Appropriations Committee has proposed a 26-percent cut to the Legal Services Corporation budget, which would require legal services organizations to turn away some 235,000 people, according to LSC estimates.

    All of this means that people coming into the court system without representation have nowhere to turn for help.

    “When people don't have a lawyer to represent them and explain the court system's complicated procedures to them, they need extra assistance from judicial staff -- who are now in short supply because of the budget cuts,” the article explains.

    More
    Tags:
    Access to Justice, Class actions, Federal judicial selection, Legal services, Procedural barriers to court, Other courts, Arbitration, Pleadings standards, Judicial Nominations, Ashcroft v. Iqbal, AT&T v. Concepcion, Bell Atlantic v. Twombly, Corporations and the Courts, Interest on Lawyer Trust Accounts, state courts, Wal-Mart v. Dukes
  • December 31, 2010

    Seventh Circuit on Twombly, Pleading Standards

    The U.S. Court of Appeals for the Seventh Circuit ruled earlier this week that a lower federal court judge correctly held that a complaint alleging a conspiracy to fix prices of text message services was plausible enough for litigation to proceed.

    Verizon Wireless and other providers of text messaging services, citing the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, had urged the federal court in Chicago to find that the litigation’s underlying complaints against the wireless communications companies were insufficient and therefore should be dismissed.

    Seventh Circuit Judge Richard A. Posner concluded that the “district judge was right to rule that the second amended complaint provides a sufficiently plausible case of price fixing to warrant allowing the plaintiffs to proceed to discovery.”

    Although the plaintiffs’ second complaint survived a Twombly challenge, Posner noted that Twombly was “designed to spare defendants the expense of responding to bulky, burdensome discovery unless the complaint provides enough information to enable an inference that the suit has sufficient merit to warrant putting the defendant to the burden of responding to at least a limited discovery demand.”

    Twombly and its successor, Ashcroft v. Iqbal, have been criticized by civil rights attorneys, law makers, and legal scholars as creating much more stringent pleading standards than intended by Congress. In its Iqbal decision, the Supreme Court held that for lawsuits to survive motions to dismiss, plaintiffs must provide much more specific factual information. The high court in Iqbal also stated that judges have greater discretion in dismissing complaints before the discovery stage of litigation. The Federal Rules of Civil Procedure created in 1938 had only required that plaintiffs file a complaint including a “short and plain” statement about why they were entitled to relief.

    Earlier this year, two civil rights attorneys argued in an ACS Issue Brief that the Supreme Court decisions in Twombly and Iqbal have undermined the “deliberative and inclusive process” that Congress established. For more discussion of the ramifications of Twombly and Iqbal, watch video of an ACS symposium, available here.

    Tags:
    Procedural barriers to court, Access to Justice, Ashcroft v. Iqbal, Bell Atlantic v. Twombly, Federal Rules of Civil Procedure, pleading standards
  • November 10, 2010

    Salvaging Civil Rights Claims

    Guest Post
    By Suzette M. Malveaux, an associate professor of law at Catholic University's Columbus School of Law. The following is a modified version of the introduction to Malveaux's ACS Issue Brief, "Salvaging Civil Rights Claims: How Plausibility Discovery Can Help Restore Federal Court Access After Twombly and Iqbal," which was released today. The Issue Brief will be a topic of discussion during the National Civil Rights Access to Justice Forum, which will begin at Emory University School of Law in Atlanta tomorrow evening and continue Friday, Nov. 12. Click here for more information about the event and to register.
    For over half a century, federal courts have opened their doors to all plaintiffs who could craft a complaint that provided basic notice to the defendant of their claims. This threshold, called "notice pleading," was established by the Supreme Court in Conley v. Gibson - a civil rights case brought by African-American railway workers challenging their union for failing to fairly represent their interests without regard to race. This seminal case established the rule that a complaint should only be dismissed if the plaintiff could prove "no set of facts in support of his claim that would entitle him to relief." This made it easy for a plaintiff to initiate a lawsuit because the system was designed to test the merits of the plaintiff's case later on, once both sides had the chance to collect evidence through the discovery process and to use other pre-trial procedures. It was important not to let procedural gamesmanship bar ordinary people from seeking justice and relief through the courts.

    Anchored in these principles, the Supreme Court consistently rejected efforts by the lower courts to raise the pleading standard, particularly in civil rights cases. The Court remained steadfast in enforcing Conley's "no set of facts" standard, only requiring plaintiffs to set forth a "short and plain statement of the claim" that would give the defendant notice, as stated in Rule 8 of the Federal Rules of Civil Procedure. It was important to give civil rights complainants, like everyone else, their day in court and let their cases be decided on the merits.

    After over half a century, however, this generous pleading standard upon which courts had historically relied has come to an abrupt halt. In Bell Atlantic Corp. v. Twombly (an antitrust class action by consumers against Internet and telephone service providers), the Supreme Court "retired" Conley's permissive "no set of facts" language. Instead of requiring plaintiffs to put forth facts showing their claims were possible, they now had to put forth facts showing their claims were plausible. In Ashcroft v. Iqbal (a constitutional civil rights case by Javaid Iqbal against top government officials), the Court clarified that the new standard applies to all civil actions, including discrimination claims. And the way a judge would determine if something is plausible would be to use his "judicial experience and common sense."

    More
    Tags:
    Access to Justice, Civil rights, Procedural barriers to court, Supreme Court, Equality and Liberty, Ashcroft v. Iqbal, Bell Atlantic v. Twombly, Guest Post, pleading standards
Back to top 

1333 H St, NW, 11th Floor
Washington, DC 20005

T. (202) 393-6181
F. (202) 393-6189
info@ACSLaw.org