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US Supreme Court Raises Pleading Standards

While this case may appear to be of interest only to civil procedure mavens such as myself, I think it has broader implications. In the Bell Atlantic Corp. v. Twombly case issued this week, the Supreme Court took it upon itself to overrule its own long-standing precedent, Conley v. Gibson, or at least that part of Conley v. Gibson that everyone cites in response to almost every motion to dismiss a complaint I have ever seen in Federal Court. That is the rule that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Bell Atlantic is an antitrust case alleging a conspiracy to restrain trade. Such a conspiracy may be inferred from parallel behavior or other circumstantial evidence. The plaintiff in Bell Atlantic had alleged such a conspiracy, but had done so in somewhat conclusory terms. That is no longer good enough, according to the Supreme Court.

Two things are striking to me about this result. One is that the Supreme Court seems to be moving away from the premise of notice pleading that was one of the foundations of the reforms heralded by the Federal Rules of Civil Procedure. Something more than notice pleading is now clearly required. Another perhaps anomalous consequence of this decision is that the threshold pleading requirements in many cases may now be more difficult to meet than the burden of proof required at trial. In other words, a plaintiff might be allowed to prove a case to a jury based on circumstantial evidence, but some plaintiffs may never get the opportunity to hand such a case to a jury, because the complaint will not survive a motion to dismiss.

The practical result is that we will see a lot more motions to dismiss the complaint being filed in federal court after Bell Atlantic, just as we started seeing even more motions for summary judgment after the Supreme Court decisions a few years back encouraging the dismissal of claims on summary judgment.

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