A U.S. Supreme Court ruling on Monday could make it significantly harder for plaintiffs in a broad range of cases to survive defendants' motions to dismiss, according to experts in civil procedure.
"This is very bad for plaintiffs," said Alan Morrison, former head of Public Citizen Litigation Group, reacting to Monday's 5-4 decision in Ashcroft v. Iqbal (pdf). The ruling dismissed a complaint filed by a Pakistani Muslim against former Attorney General John Ashcroft seeking to hold Ashcroft liable for policies that led to the roundup of aliens including Iqbal following the Sept. 11, 2001, terrorist attacks.
Headlines have focused on that aspect of the ruling. But litigators are focusing on the broader impact of what the decision said about so-called "pleading standards" in civil litigation similar to Iqbal.
The Court's ruling, written by Justice Anthony Kennedy, said plaintiff Javaid Iqbal's complaint "fails to plead sufficient facts to state a claim" against Ashcroft and FBI Director Robert Mueller III, also a named defendant. In so doing, Kennedy applied -- and some say expanded on -- the justices' 2007 decision in Bell Atlantic Corp. v. Twombly (pdf). That ruling, in an antitrust case, required that initial pleadings state a claim that is "plausible on its face" and is not simply a statement of the elements of a cause of action or reaches unsubstantiated conclusions. Kennedy labeled a statement in Iqbal's pleading that Ashcroft was the "principal architect" of the policies at issue as "conclusory and not assumed to be true."
Since Twombly, there has been a dispute over whether it applies beyond the antitrust setting, but Iqbal now makes broader application of the rule clear.
"That debate is over" in the wake of Iqbal, says Jane Willis, a partner at Ropes & Gray in Boston. "The decision gives district court judges quite a bit more guidance" on how much factual information pleadings must contain.
Willis said all kinds of business disputes, especially those in which vicarious liability is claimed, are now governed by the Twombly standard. She said corporate defendants would now be more likely to challenge pleadings in lawsuits, seeking dismissal so as to avoid costly discovery in marginal cases. "A lot of CEOs don't like to be deposed," Willis said.
Morrison, who will soon become a dean and professor at George Washington University Law School, agrees. "The ruling in Iqbal is an invitation to raise a Twombly issue in every case," he said, mentioning employment discrimination and products liability as prominent examples of areas where they might be filed the most. "It's very troubling."
In the Iqbal case, Morrison points out, the pleading had considerable detail, and Iqbal could not have made a more detailed pleading than he did.
Michael Winger of Washington-based Covington & Burling's New York office, who is co-counsel in a class action related to the Iqbal litigation, said the pleading was based on "over a hundred depositions, giving us the kind of detail the Supreme Court has now said plaintiffs need. But few plaintiffs get access to such details. ... I fear that this case will keep many victims of governmental discrimination and abuse from ever getting their day in court."
University of Richmond School of Law professor Carl Tobias on Tuesday said Iqbal is so significant that it in effect rewrites Rule 8 of the Rules of Civil Procedure. "Judges will have more discretion to dismiss cases earlier," Tobias said.
Morrison added that applying Twombly broadly follows the conservative Court's trend of reducing access to the courts through tightening procedural rules. "What they are doing in pleadings is reminiscent of what they have done to standing," he said.
Ian Millhiser, a lawyer with the National Senior Citizens Law Center, called Iqbal "a sweeping decision with the potential to impact every plaintiff in a civil lawsuit," adding that it has the effect of "abandoning the liberal pleading rules which have prevailed for decades."
Justice David Souter, who wrote the Twombly decision in 2007, dissented from Kennedy's majority, writing that Kennedy "misapplies" the decision. Justice Stephen Breyer also dissented, stating that the majority's interpretation was unjustified.
