Plausible Pleadings

Nothing frustrates a general counsel more than a judge who refuses to dismiss a meritless lawsuit until after the company has incurred huge legal bills for discovery that proves what the GC knew all along--the plaintiff didn't have a case.

Now the Supreme Court has opened the door for defense counsel to avoid discovery by winning more early dismissal motions in federal cases. In Bell Atlantic Corp. v. Twombly, the Court rejected a 50-year-old standard that lower courts relied on to set a low bar for allowing cases to proceed.

"Everybody recognizes the problem," says Michael Simon, partner in Perkins Coie. "It's not fair to have defendants overburden the plaintiff to the point you drive them out of court, and at the same time, it's not fair for the plaintiff to extort a settlement by demanding massive discovery. The Supreme Court is trying to craft a solution."

Retiring Conley

Patten estimates it will be five to 10 years before the courts sort out all the implications of Twombly. Meanwhile, parties in federal cases will be venturing into uncharted territory.

"Supreme Court opinions influence the direction of litigation, but they don't tend to give you a clear road map," says Mark Botti, partner in Akin Gump Strauss Hauer & Feld. "Using terms like 'heft' and 'plausible' requires the federal district courts to exercise judgment and lawyers to apply their skills."

Senior Editor

Mary Swanton

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