Wednesday, October 28, 2009

Congress Held An Iqbal Party!



I had some time on my hands yesterday, so I went ahead and did a Jay Z-White Album-style mashup of the Congressional testimony on Iqbal yesterday and John Lennon's seminal Plastic Ono Band album from 1970 -- it starts with a gong and a raspy-voiced John primal screaming "Mama don't GOOOOOOOOOO!!, Iqbal stay home" and ends with Lennon cooing to Arlen Specter "Rule 8 and me, that's reality."

I think it came out pretty.....what, was I the only one to think of that?

But can you believe a group of Congresspeople actually got together yesterday on the Hill and discussed Iqbal, which has already been cited 2700 times in federal court:

"The Iqbal decision will effectively slam shut the courthouse door on legitimate plaintiffs based on the judge's take on the plausibility of a claim, rather than on the actual evidence," Nadler said. The bill will be similar to one introduced earlier this year in the Senate by Sen. Arlen Specter (D., Penn.) but will spell out the new standards more specifically.

The proposed legislation would return pleading standards to where they were after the Supreme Court's 1957 Conley v. Gibson decision, which stated that defendants should have "fair notice" of any claim, but said only cases lacking strong evidence should be dismissed.

Hmm, I've heard of that before -- it's called Rule 8(a).

I knew Specter was old, but he's going all the way back to 1957 and Conley v. Gibson -- hail, that's pre-Mad Men old.

Not so fast, says the dude who actually argued Iqbal, who predicts Gloom and Doom, cats and dogs etc. if we go back to the way things used to be just five months ago:
If passed, the bill could raise legal fees for companies. Electronic discovery proceedings can cost millions of dollars and even tens of millions in anti-trust and other complicated cases, said Gregory Katsas, former U.S. assistant attorney general who helped represent the U.S. government in Ashcroft v. Iqbal.
Come on -- you'd have to be a pretty bad lawyer if you couldn't get a motion to dismiss granted pre-Iqbal if your grounds were that strong.

The problem is the nearly formless "implausibility" standard, which introduces a huge amount of judicial discretion at too early a stage:
"The bottom line is that the Supreme Court knows what the impact of this decision is," Johnson said. "Even defense lawyers have called the Iqbal decision an unexpected gift for the business community."
You know, I find plenty of things "implausible" -- Drew Barrymore dating that idiot from the Mac commercial, for example, but should I get to decide everything?

Ok, don't answer that.

16 comments:

  1. It's amazing you can make pleading standards entertaining.

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  2. Boring SFL. Get out and go "windsurf"

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  3. I agree with 9:45, you make the dull into delicious. And speaking of delicious, I wonder if Jason 'Long' lives up to the name? That might explain Drew's... attraction.

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  4. ditto 10:16. how about a "health" post?

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  5. Seriously? Again with the Iqbal thing? How intellectually dishonest can you be? Iqbal just brings us back from an extreme, when every non-securities case ends up requiring litigation through summary judgment. Were you this bad when Congress passed the PSLRA? Isn't that the same Congress that wants to go the other way now?

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  6. You're right about PSLRA -- it wasn't as bad as some thought and probably on balance was a good thing.

    Some recent cases have reeled in the initial exuberance over Iqbal, so legislation may not be necessary, but I still find the standard to be difficult to apply fairly and uniformly.

    Hey, man cannot live by windsurfing alone.

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  7. SFL, you don't need Iqbal to get a case dismissed if you know what you are doing.

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  8. 10:19, Do not encourage SFL. It will be on tantric sex. Dullsville.

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  9. The whole Shumie/Christy's incident is being debated and explained on the Rumpole blog.

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  10. CHARLIE DON'T WINDSURF

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  11. 11:18-- If you have some spare time on your "hands" you may want to give it a try.

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  12. 11:28, Hiya Rump.

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  13. fake alex michaelsOctober 28, 2009 at 3:25 PM

    I hate dis iqbal...dis is bulsheeeeeet!

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