In a now infamous pair of decisions, Bell Atlantic v. Twombly in 2007 and Ashcroft v. Iqbal in 2009, the Supreme Court announced a new pleading standard that shook the foundations of federal litigation. The decisions allow district court judges to dismiss a complaint if it does not set out a “plausible” claim—a departure from the rule established in the 1957 case Conley v. Gibson that a court cannot dismiss a complaint unless it is apparent that the plaintiff could prove “no set of facts” that would entitle him to relief.
The defense bar heralded the decisions as a path to early dismissal of frivolous cases. Meanwhile, plaintiffs decried Iqbal as a barrier to legitimate claims. But according to a recent study by the Federal Judicial Center (FJC), neither prediction has come true.
Even when motions citing Iqbal do not result in dismissal, there are several ways in which the decision helps defendants. The first is narrowing the theories asserted.
Burbank is critical of how district courts are applying Iqbal and Twombly. He calls the situation “lawlessness cubed.”