Bell Atlantic v. Twombly

  • May 19, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    *This piece originally appeared on The Global Legal Post.

    When the United States Supreme Court issued its decisions in Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) and Ashcroft v Iqbal, 556 U.S. 662 (2009), there was sea change in the standard by which judges evaluated lawsuits to determine their sufficiency to withstand a motion to dismiss. Rather than merely placing a defendant on notice of a claim, the Court established a new standard. Plaintiffs must allege facts allowing a court to find that a claim is plausible. In reviewing the allegations of the complaint, courts are challenged to weed out conclusory statements and base their analysis on only the factual pleadings of the Complaint.

    Naturally, Iqbal and Twombly have raised serious access to justice issues for plaintiffs who must muster the facts without an opportunity to gather evidence through discovery. The “plausibility” standard is of course entirely subjective; what is plausible to one judge based on his or her life’s journeys may not be plausible to another. And with the challenge to plead facts, plaintiffs are undoubtedly encouraged to put the “kitchen sink” into their complaints and plead complaints that are exponentially larger than those of yesteryear.  

    With all of the problems caused by Iqbal and Twombly, there is a nugget of gold that can be snatched as a teaching lesson. The notion that litigants are instructed to make their cases based on facts and not conclusions or hyperbole, is a solid concept.  

  • January 24, 2014
    Guest Post
    by Robert L. Weinberg, Adjunct Faculty, George Washington University Law School and University of Virginia School of Law; former President, District of Columbia Bar; former Partner, Williams and Connolly LLP
     
    On July 3, 2013, the Seventh Circuit rendered the first appellate opinion on the issue of whether Twombly and Iqbal may be applied to adjudicate the sufficiency of federal criminal indictments in United States v. Vaughn. Coincidentally, that same day, ACS released my Issue Brief, “Applying the Rationale of Twombly to Provide Safeguards for the Accused in Federal Criminal Cases.” My Issue Brief analyzed the sufficiency of indictments under the very same criminal conspiracy statute involved in the Seventh Circuit case – 21 U.S.C. Section 846.
     
    In Vaughn, the Seventh Circuit upheld the sufficiency of a bare-bones drug conspiracy indictment charged under 21 U.S.C. Section 846, which would plainly have been invalidated if the court had followed the Twombly holding that the allegation of a “conspiracy” is merely a “legal conclusion” and not a “factual allegation.” Twombly’s holding on this point was reaffirmed in Iqbal. Twombly had dismissed a civil treble damages complaint for violation of a criminal conspiracy statute, the Sherman Antitrust Act.  As Iqbal noted:
    “The Court held the plaintiffs’ complaint deficient under Rule 8.  In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a ‘legal conclusion’ and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce.
     
    The Seventh Circuit rejected the application of the Supreme Court’s Twombly and Iqbal rulings to criminal indictments, on the theory that the Circuit should not “adopt the civil pleading standards articulated by the Supreme Court…to assess sufficiency of a criminal indictment.”
     
  • December 21, 2011
    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.

  • October 14, 2011

    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:

  • August 3, 2011

    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.