Remember when Twombly came out in late 2006 and it showed up in just about every motion to dismiss?
Twombly, Twombly, Twombly.
Everywhere you went, people were talking about "Twombly."
You had to pretend to know something about it at judicial functions, there were teleconferences on it, and associates billed incessantly to copy and paste the part of the brief that dealt with it over and over and over again.
It was the "economic loss rule" of 2007.
Now, it seems, everyone is talking about Iqbal:
Even Justice Souter, who wrote for the majority in Twombly, thought Iqbal went too far, what with expecting judges to use "common sense" and determining what's "plausible" -- hah!“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.
On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.
But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.
Sheesh, they're federal judges, give them a break!
Indeed, just a few days ago Judge Conway of the Middle District dismissed a false marketing suit involving Seroquel, citing Iqbal.
I hate legal trends, and particularly trendy decisions or theories that are untested and which run amuck for a while before things get back to normal.
So now everything is going to be about Iqbal, at least for the near future, before somebody realizes that maybe we went too far and we can go back to normal pleading practices, you know, Rule 1, Rule 8, Rule 12 -- the oldies but goodies.
And so, kids, now you know why I hate flatbread.
16 comments:
Defense laeyers overreaching again. Same old bread SFL.
SECOND !!! Good day SIR!
THIRD!! Wassup with your princess?
snarky ending
8:12- Same old STALE bread.
So Iqbal is the new flatbread?
With the exception of the flatbread served at michael's genuine, I too hate flatbread.
SFL, does your latina like it 'short and plain'?
He makes a statement of the claim. Is everything innuendo on this blog?
Is everything innuendo on this blog?
Been living under a rock?
Can this blog get anymore super!
True, but didn't some shmartie once say "sometimes a cigar is just a cigar"?
Sometimes a cigar is just a cigar, unless it's being used by Bill Clinton.
I'm never gloomy when I call the Shumie.
I'm outta here.
Why do some readers continue to post ridiculous comments, like 1:03.
Specter Proposes Return to Prior Pleading Standard
David Ingram
The National Law Journal
July 24, 2009
Congress is preparing to wade into the growing debate over the pleading standard for civil lawsuits, after two recent Supreme Court decisions effectively upended long-standing precedent.
Sen. Arlen Specter, D-Pa., filed legislation Wednesday designed to return the standard to what it was prior to 2007, when the Court handed down its ruling in Bell Atlantic Corp. v. Twombly (pdf). That case and another -- Ashcroft v. Iqbal (pdf) from the most recent term -- have raised the standard that pleaders must meet to avoid having their cases quickly tossed.
Specter, in remarks prepared for the Senate floor, accused the Court's majorities of making an end run around precedent with the two recent cases.
"The effect of the Court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries," Specter said. "I think that is an especially unwelcome development at a time when, with the litigating resources of our executive-branch and administrative agencies stretched thin, the enforcement of federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants."
At issue is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief," while Rule 12 allows for the dismissal of complaints that are vague or that fail to state a claim. Under Iqbal, a 5-4 decision written by Justice Anthony Kennedy, many courts are now requiring more specific facts that, plaintiffs lawyers say, aren't often available until discovery.
Specter's bill (pdf) directs federal courts to interpret the rules as the Supreme Court did in a much earlier decision, Conley v. Gibson (1957). The bill falls within the jurisdiction of the Senate Judiciary Committee and, if considered, would likely be a lightning rod for debate among plaintiffs lawyers, consumer groups and businesses.
This article first appeared on The BLT: The Blog of Legal Times.
Post a Comment