West Virginia Business Litigation : West Virginia Business Litigation Lawyer & Attorney : Law Office of Jeffrey V. Mehalic : Charleston, Huntington, Parkersburg

I have previously written about the significance of the United States Supreme Court's decision in Ashcroft v.Iqbal, 129 S.Ct. 1937 (2009), and its effect on federal pleading standards for both plaintiffs and defendants. And with the issuance last week of Francis v. Giacomelli, 2009 WL 4348830 (4th Cir. 2009), the Fourth Circuit has now weighed in and made clear that a plaintiff has a much heavier burden to satisfy in pleading its case.

I will not discuss Francis in great detail; for that analysis, I refer you to Mack Sperling's post at the North Carolina Business Litigation Report; Rob Hoskins' post at ERISABoard (registration required);  and Jay O'Keeffe's post at DeNovo: A Virginia Appellate Law Blog.

I want to reiterate two points that Jay made. If you're a plaintiff, make the factual allegations in your complaint as specific as possible. Do not rely on generalizations or conclusory statements. A federal judge is not going to accept unsupported assertions or make assumptions in your client's favor to keep your case in court. If you're a defendant, file a motion to dismiss. You won't always prevail, but your odds have surely improved with Iqbal and Francis, and cases that a few months ago would not have been at risk of being dismissed now may end up getting tossed.

I have already encountered Iqbal in my own practice, and judging from Jay's statistics, the decision will be relied upon increasingly. Add to that the effect of Francis, and pleading for plaintiffs in federal courts, at least in the Fourth Circuit, is more arduous than ever.

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This is an update to my post a couple of weeks ago about the significance of the Supreme Court’s decision in Ashcroft v. Iqbal, which now requires complaints to be more fact-specific. According to The BLT: The Blog of Legal Times, Senator Arlen Specter (D-Pa.) has introduced a bill that would undo the effect of Iqbal and Bell Atlantic Corp. v. Twombly, and return to the pleading standard set forth in Conley v. Gibson for motions under Federal Rule of Civil Procedure 12(b)(6) and (e).

And in a related post on The AmLaw Litigation Daily blog, two more products liability suits have been dismissed under the new Iqbal standard, which writer Alison Frankel describes "as the best thing to happen to the products liability defense bar since Daubert."

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I haven't written too much lately, which will change, but I did want to write a brief post about an article in yesterday's New York Times that caught my eye. In his Sidebar column, Adam Liptak, who covers the Supreme Court for the Times, wrote about Ashcroft v. Iqbal, which he described as "the most consequential decision of the Supreme Court's last term."  Liptak noted that the decision didn't receive much attention when it was released, and what attention it did receive was due to its subject matter.  Here is my post from last month about Iqbal.

Liptak quoted Thomas Goldstein, the primary author of SCOTUSBlog and an appellate lawyer at Akin Gump, who said that Iqbal is the "most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts[.]"

The decision's significance is that a plaintiff must now state a "plausible" claim for relief, which the reviewing court must consider in light of its "judicial experience and common sense." Those words may not appear to impose much of a burden, but they mean that a large number of cases that would have survived a motion to dismiss before Iqbal will be dismissed. According to Liptak, the case has been cited more than 500 times in the past two months.

If you're a plaintiff in federal court, your complaint must be specific and state a claim that is plausible, which can be difficult based on the limited amount of information that is often available when suit is filed. If you're a defendant in federal court, chances are good that you will rely on Iqbal as support for your motion to dismiss, and that the court will grant your motion.

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The United States Supreme Court’s recent decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), dealt with a detainee’s claims that he had been discriminated against and treated harshly during his detention. But the Supreme Court dismissed his complaint for failure to state sufficient facts to support his claims against former Attorney General John Ashcroft and FBI Director Robert S. Mueller, III.

For background on the case, here is SCOTUSBlog's analysis of the decision and its effect on future claims that attempt to impose liability on high-ranking officials for the conduct of their subordinates.

Even though Iqbal's facts are unique, I am interested in it because of its language that is troublesome to plaintiffs in federal lawsuits in general.

According to Tony Mauro, who wrote last month about the decision in The National Law Journal, Iqbal “could make it significantly harder for plaintiffs in a broad range of cases to survive defendants’ motions to dismiss….”

The reason is that the opinion appears to expand on the Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly, 550 U.S.544 (2007), which held that initial pleadings must state a claim that is “plausible on its face,” a change from Conley v. Gibson, 355 U.S. 41 (1957), which had interpreted Rule 12(b)(6) of the Federal Rules of Civil Procedure to require dismissal of a complaint only if the plaintiff could prove “no set of facts” that would entitle him or her to relief. Because Twombly had arisen in an action alleging violations of the Sherman Act, practitioners questioned whether the holding applied outside of antitrust litigation.

But Iqbal, which, like Twombly, was written by Justice Anthony Kennedy, makes clear that it applies far beyond antitrust cases, and, according to Alan Morrison, incoming dean and professor of law at George Washington University Law School, “is an invitation to raise a Twombly issue in every case.” 

I have not read Iqbal’s complaint, but according to Mauro’s article, it was extremely detailed and should have been able to withstand the motion to dismiss. As a practical matter, plaintiffs often do not have access to a lot of information when they file suit, which requires them to make “bare-bones” allegations in their complaints. Iqbal increases the possibility of dismissal due to their lack of detail. 

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