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Pressure Builds For Legislative Repeal Of Supreme Court Decisions That Raised Pleading Standards

Posted  October 8, 2009

The United States Supreme Court in the last two years has given defendants in federal civil cases two key victories.  Now, a powerful Senator has joined with plaintiffs’ groups in introducing a bill to repeal those decisions.

The two decisions – 2007’s Bell Atlantic Corp. v. Twombly, 550 U.S. 544, and this year’s Ashcroft v. Iqbal, 129 S.Ct. 1937 – concern the level of detail that a plaintiff must allege to survive a motion to dismiss.  Twombly held that while a complaint need not allege “detailed” facts, it must include “enough facts to state a claim to relief that is plausible on its face.”  “Naked assertions” of fact are not enough.  Iqbal clarified that Twombly, an antitrust case, applied to all civil lawsuits.  Iqbal may have also raised the standard even higher with its direction to courts to “draw on [their] experience and common sense” in assessing a complaint’s plausibility.

Plaintiffs’ groups now seek a legislative repeal of Twombly and Iqbal.  They say that Twombly and Iqbal go too far because wronged persons with legitimate claims sometimes do not have access to specific facts before they sue.  In an employment discrimination case, for example, a plaintiff may observe discriminatory behavior, but the defendant alone may have the revealing employment records.

Some advocates of repeal also argue that Twombly and Iqbal were improper judicial end-runs around Congress because they modified the Federal Rule of Civil Procedure 8 pleading standard of “a short and plain statement of the claim.”  The Supreme Court is heavily involved in proposing Federal Rule changes to Congress, but only Congress may actually amend them.  Indeed, Justice Ruth Bader Ginsberg, who joined Iqbal’s dissent, said publicly that the majority’s opinion in that case “messed up the federal rules.”

Pennsylvania Senator Arlen Specter has taken up the cause of repeal.  In July he introduced the Notice Pleading Restoration Act (S. 1504).  That bill would repeal Twombly and Iqbal by directing courts, when judging motions to dismiss, to apply the pleading standard in the Supreme Court’s 1957 Conley v. Gibson, 355 U.S. 41, decision.  Conley bars dismissals “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  Defendants’ advocates argue that Conley places too heavy a burden on a defendant to disprove allegations.  After all, they say, virtually any skillful lawyer can craft a complaint that conforms to the eventual discovery of some hypothetical facts.

Senator Specter’s bill reportedly will have hearings in the House and Senate later this month.

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