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In May 2007, with its decision in Bell Atlantic Corp. v. Twombly , the Supreme Court altered the way federal courts approach motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Since Twombly , the legal standard governing Rule 12(b)(6) motions has frankly been in flux.

In our March article, we addressed whether the Twombly tide might be receding in light of the decision by the 2nd U.S. Circuit Court of Appeals in Starr v. Sony BMG Musical Entertainment . There, the court reversed a Rule 12(b)(6) dismissal invoking Twombly , and held that the allegations were not conclusory and plausibly suggested parallel conduct. The 2nd Circuit found that “at the more limited motion to dismiss stage, a plaintiff need only allege enough factual material (taken as true) to suggest that an agreement was made.” A previous article in July 2008 addressed decisions in the 3rd Circuit holding that Twombly set neither a heightened nor plausibility standard, but a mere reiteration of what Rule 8 already required.

In May of last year, the Supreme Court attempted to further answer the questions surrounding the legal standard governing Rule 12(b)(6) motions in Ashcroft v. Iqbal . Although the Supreme Court provided a few answers in Iqbal and the 3rd Circuit has broached some of the issues raised by both of the Supreme Court decisions, questions still remain.

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