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Thursday, January 21, 2010

How do you solve a problem like Iqbal?

Multiple ways, apparently. Ed Hartnett (Seton Hall) sent this compilation to the CivPro listserv (gleaned in part from Scott Dodson's New Pleadings, New Discovery), showing the multiple different proposals that have been made to undo Iqbal.

Notice Pleading Restoration Act, S. 1504, 111th Cong. (2009):

“Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).”

Open Access to Courts Act of 2009, H. R. 4115:

“A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.”

Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. (forthcoming):

Amend Rule 8(a)(2) to read: “a short and plain statement of the claim—regardless of its nonconclusory plausibility—showing that the pleader is entitled to relief”

Michael C. Dorf, Should Congress Change the Standard for Dismissing a Federal Lawsuit?, FindLaw (July 29, 2009):

“Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not deem a pleading inadequate under rule 8(a)(2) or rule 8(b)(1)(A) of the Federal Rules of Civil Procedure, on the ground that such pleading is conclusory or implausible, unless the court may take judicial notice of the implausibility of a factual allegation. So long as the pleaded claim or defense provides fair notice of the nature of the claim or defense, and the allegations, if taken to be true, would support a legally sufficient claim or defense, a pleading satisfies the requirements of rule 8.”)

Posting of David Shapiro to Civil Procedure Listserv, [email protected] (July 7, 2009):

“Except as otherwise expressly provided by statute or in these rules, an allegation of fact, or of the application of law to fact, shall [must?] not be held insufficient on the grounds that it is conclusory and/or implausible, unless the rules governing judicial notice require a determination that the allegation is not credible.”)

Posting of Art Wolf to Civil Procedure Listserv, [email protected] (Oct. 20, 2009):

Amend Rule 8(a)(2) to read “a short and plain statement giving [sufficient] notice of the claim upon which relief can be granted” or “a short and plain statement of the claim upon which relief can be granted so that a party can [may] reasonably prepare a response”)

Stephen Burbank, Hearing on Whether the Supreme Court has Limited American’s Access to Court (Dec. 2, 2009): (I previously wrote about Burbank's testimony and proposal).

“Except as expressly provided by an Act of Congress enacted heretofore or hereafter or by a Federal Rule of Civil Procedure effective hereafter, the law governing (a) dismissal or striking of all or any part of a pleading containing a claim or defense for failure to state a claim, indefiniteness, or insufficiency and (b) judgment on the pleadings, shall be in accordance with interpretations of the Federal Rules of Civil Procedure by the Supreme Court of the United States, and by lower courts in decisions consistent with such interpretations, that existed on May 20, 2007.”

Let me add two more.

First, Jonathan Siegel has proposed (to the civpro listserv) leaving the language of FRCP 8(a)(2) unchanged and adding more forms--including forms for antitrust, employment discrimination, and § 1983/Bivens claims. A potentially easier solution, until courts began using Iqbal to dismiss simple slip-and-fall cases that used complaints largely modeled on Form 11. The Forms are not on judges' radar (including SCOTUS), so such a change might not get noticed.

Finally, just because I like coming back to this one: Hillel Levin, also on the civ pro listserv proposed a version of the following: "When we gave you notice pleading, told you 'short and plain statement," and gave Form 11 as an example, we really mean it."

An interesting smorgasbord of proposals. Now let's see if any gets enacted.

Posted by Howard Wasserman on January 21, 2010 at 11:11 AM in Civil Procedure, Howard Wasserman | Permalink


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Congress seems better suited to the kind of reforms seen in the Private Securities Litigation Reform Act of 1995. This legislation established heightened pleading requirements for securities fraud suits, a very specific type of claim that had been identified as problematic.

Congress almost always prefers incrementalism to global solutions, and one of the major conclusions that many academics came to in the wake of Twombley was that a single "transubstantive" pleading standard doesn't necessarily make sense. Pleading standards that makes sense in a credit card collection case or car accident litigation don't necessarily make sense in an anti-trust or civil rights case.

The empirical evidence on the new pleading standards supports this approach. Many kinds of cases have seen almost no Iqbal impact. But, civil rights and employment cases (and a handful of more esoteric conspiracy type cases) have been hard hit.

Congress could very easily change elements of civil claims in these contexts from being part of the prima facie case to affirmative defenses for the causes of action that have had the most Iqbal impact.

The very elaborate game of burden of production/burden of proof ping pong is already present in employment discrimination cases is suggestive of what such a regime might look like in practice. Also suggestive are the consumer product warranty/products liability/worker's compensation liability regimes where limited discovery in the formative period of these legal doctrines led to a shift from negligence regimes to strict liability.

Congress would also be well suited to providing pre-litigation discovery on a selective, subject matter specific basis, when claims where defendants control information critical to bringing claims. Where the trade off between pre-litigation discovery and heightened pleading standards is particularly hard to achieve, shifting responsibility for enforcement from private attorney generals who lack pre-litigation subpeona power to actual attorney generals who have it but are limited by politics and resources, might be the best solution.

Posted by: ohwilleke | Jan 25, 2010 1:45:26 PM

Funny, "Iqbal" and "Maria" don't rhyme, but the title is pithy nonetheless.

Posted by: Von Trapp | Jan 21, 2010 5:23:29 PM

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