pleading standards

  • September 9, 2013
    Guest Post

    by Senator Sheldon Whitehouse (D-R.I.). Sen. Whitehouse is a member of the Health, Education, Labor, and Pensions (HELP) Committee, as well as the Budget Committee, Environment and Public Works Committee, Judiciary Committee and the Special Committee on Aging.

    James Madison famously observed in Federalist 39 that our American experiment depends on “the capacity of mankind for self-government.”  History has vindicated Madison’s faith in the American people, but we must not grow complacent.  Recent Supreme Court decisions, for example, have undermined Americans’ ability to participate in our system of self-government by opening the floodgates to corporate cash in our elections and eliminating the provision of the Voting Rights Act that has protected millions of Americans from discriminatory voting practices.  Another institution within our system of self-government – the civil jury – is also under attack and is disappearing, with little fanfare.  It is time to sound the alarm.

    As I recently explained in the National Law Journal, the civil jury came to the United States with the earliest colonists.  It provided a means of self-government for Americans who chafed under British rule, and its preservation was vital to the founding generation.  Consequently, the Seventh Amendment  protected access to the civil jury, which serves, in the words of Alexis De Tocqueville, as a “political institution” and “one form of the sovereignty of the people.”

    Unlike other institutions of government which can be dominated by the rich and the well-connected, the civil jury puts all citizens equal before the law.  As Sir William Blackstone observed, the jury “preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.”  The Founders wished to assure that when the executive is corrupt, when powerful interests have the legislature tied in knots, and when the press has turned against you, the hard square corners of the jury box still stand strong.

  • December 31, 2010

    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.

  • November 10, 2010
    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."

  • May 19, 2010
    Guest Post

    By Sidney Shapiro, Member Scholar, Center for Progressive Reform, University Distinguished Chair in Law, Wake Forest University School of Law
    The Center for Progressive Reform (CPR) today released a white paper examining "plausibility pleading"-the Supreme Court's heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court's decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell Atlantic, three years ago.

    Iqbal and Twombly will lead to the dismissal of meritorious cases, thereby weakening the civil justice system and making it more difficult to hold businesses or the government accountable for wrongful actions. Increased dismissals will also deprive federal regulators of vital information needed for improving the regulations that protect people and the environment. Our paper therefore calls on Congress to pass legislation to reverse these decisions.

    The pleading standard plays an important role in civil litigation. Would-be plaintiffs unable to draft a complaint that satisfies the pleading standard aren't able to bring their case before a judge or jury in federal court. If the pleading standard is too lenient, too many non-meritorious cases will be able get into court, clogging up the federal judiciary. But if the standard is too high, meritorious cases will be terminated early, denying justice to deserving plaintiffs.

    For nearly seventy years, the Federal Rules of Civil Procedure -- the set of rules that govern the conduct of federal civil litigation -- charted an effective middle course by requiring plaintiffs to assert a set of facts that explained how the defendant had harmed them. This approach left the evaluation of the pleading's factual sufficiency to the discovery stage, permitting a plaintiff to use discovery to obtain information relevant to the case.

  • September 22, 2009
    Civil liberties and other public interest groups, including consumer protection ones, are organizing over recent Supreme Court decisions that they say put serious limits on lawsuits. In an article for The National Law Journal, Tony Mauro reports on the organizing around the most recent Supreme Court decision, writing that the high court "gave corporate defendants a gift that keeps on giving: the Iqbal decision, which has made it easier than ever for defendants to shut down lawsuits before they get to the costly discovery stage."

    Mauro's article notes that Iqbal has been used repeatedly since it was issued by the high court in May. Motions to dismiss, based on the Iqbal decision, Mauro writes "have become commonplace in federal courts, already producing more than 1,500 district court and 100 appellate court decisions according to a Westlaw search."

    In Ashcroft v. Iqbal (pdf), the Supreme Court ruled that federal judges have a greater discretion to dismiss complaints, which according to some Supreme Court practitioners will make it much easier for judges to quickly dismiss civil lawsuits. The Iqbal decision was preceded by the high court's decision in Bell Atlantic Corp. v. Twombly (pdf) that also stiffened the pleading standards. 

    The public interest groups meeting last week in Washington, D.C., Mauro reports, are planning to urge Congress to restore pleading standards. Mauro notes that congressional hearings are being planned on the pleading standards.

    John Payton, president and director-counsel, of the NAACP Legal Defense and Educational Fund, which took part in the meeting, told The National Journal that Iqbal "has threatened to upend the way we have been doing things for a very long time. The alarm is real."

    In July, Sen. Arlen Specter introduced the Notice Pleading Restoration Act of 2009 intended to counter the Iqbal and Twombly rulings by requiring federal courts to follow traditional civil procedure rules for filing lawsuits. Rule 8 of the Federal Rules of Civil Procedure simply requires that complaints include "a short and plain statement of the claim showing that the pleader is entitled to relief."

    In a guest post for ACSblog, Vermont Law Professor Anthony F. Renzo wrote that, "The most ominous import of the Iqbal decision, however, is that it provides a blueprint for like-minded lower federal court judges to justify denying access to the courts to future victims of constitutional torts seeking redress for injuries caused by high-ranking federal officials."