The end of the "obvious alternative explanation" on 12(b)(6)?

The idea of an "obvious alternative explanation"--introduced in Twombly and reified in Iqbal--does not fit the 12(b)(6) analysis. If all reasonable inferences must be drawn in the plaintiff's favor, it is incoherent to credit an alternative explanation; that requires drawing inferences for the defendant and rejecting as implausible those inferences for the plaintiff. That is, if the AG orders the arrest of thousands of Arab Muslim men from Middle Eastern countries in the months after 9/11, saying it is more plausible that he was motivated by a desire to protect the country rather than animus is to draw inferences for the defendant and against the plaintiff.

And it confuses students. Despite my emphasizing that it dropped out of the analysis for most lower courts, students run to it as part of the analysis. Worse, they use it as a basis to suggest different facts. ("The plaintiff alleged X, but a more obvious explanation is that unalleged Y is true, therefore complaint dismissed.").

On a day in which public attention focused on other legal matters, perhaps NRA v. Vullo interred "obvious alternative explanation" in the 12(b)(6) analysis. The NRA alleged the head of the state insurance regulator threatened to take (or promised to refrain from taking) unrelated regulatory actions against the companies if they cease doing business with the NRA. The state argued that the agency engaged in government speech in its press releases and that in meeting with insurers, the agency exercised regulatory authority to pursue violations and to offer leniency to resolve enforcement actions. But the Court could not "simple credit" the argument that "we're just enforcing the law" as an obvious alternative explanation, in light of other allegations taken as true and the obligation to draw favorable inferences for the plaintiff.

This may not mark any sea change in the Twiqbal analysis. The Court (including the liberal justices) may be more solicitous of the NRA's free speech claims than of 9/11-detainees' equal-protection claims during a national-security crisis or consumers' antitrust claims, and thus less solicitous of New York's obvious alternative explanations than of John Ashcroft or Bell Atlantic. The Court also does not follow obvious alternative to its real point of favorable inferences--"we cannot credit defendant's suggested inference from the alleged facts at this time." Instead, the moves to the need to accept pleaded facts as true, subject to what discovery may show those real facts to be. That is a different point.

Nevertheless, NRA at least offers plaintiffs a new argument that a court cannot grant a 12(b)(6) and dismiss a claim by accepting the defendant's best explanation for the facts alleged over the plaintiff's best explanation for those facts, where both explanations are independently plausible.