29 July 2009

Legislative Repeal of Iqbal?

Sen. Arlen Specter, D-Pa., has already introduced legislation, called the Notice Pleading Restoration Act, which would return pleading standards to what they were before both Iqbal and Twombly. "The effect of the court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts," Specter said in a statement on the Senate floor last week.

From here.

Iqbal and Twombly govern the question of how detailed factual allegations in Complaints for relief must be under the Federal Rules of Civil Procedure and have been discussed previously in this space.

And, for those of you who weren't paying attention, the (D) for Arlen Specter is correct. The moderate Pennsylvania Republican switched parties earlier this year. He serves on the Senate Judiciary Committee, so his proposals are more likely to become reality than those of many legislators and commentators. The bill number in the current session of Congress is S. 1504.

Absent the fluff of headings, etc., the bill, introduced July 22, reads in its entirety:

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).


Anonymous said...

would anyone care to allege the goal/intent of such an amendment to rule 12?

Andrew Oh-Willeke said...

Iqbal and a couple of other cases decided by the U.S. Supreme Court changes the rules for bringing a valid federal lawsuit.

Before the new standard, you could bring a suit if the facts stated in your initial complaint could be a valid basis for bringing a lawsuit if any possible set of facts together with those stated were true. This was called "notice pleading".

The new standard requires the person bringing the lawsuit to have knowledge of facts that if true make it plausible, rather than merely possible, that a legal right was violated.

The difference mostly comes up in suits where a secret agreement or secret communications that someone bringing a suit doesn't have access to without subpeona power is necessary to prevail.

Before, you could sue saying that there could be such an agreement or communication (e.g. an anti-trust or civil rights violating conspiracy) and force the defendant to disclose if there was one. If the disclosure failed to show incriminating evidence, the suit could be thrown out then.

Now, you need a whistle blower first, to give you the goods, since you can't get into court to compel disclosure until you have proof that the defendant broke the law.

The intent of the change is to protect the ability to sue in cases where the person suing doesn't have all the facts necessary to win at the time of filing.