Twombly and Iqbal––or “Twiqbal” as the cases are sometimes known in legal circles––can often make or break a plaintiff’s litigation. Courts around the country have vigorously enforced this doctrine on case dismissal, sometimes dismissing even those complaints with lengthy and detailed factual recitations. So what are the Twiqbal cases, and what should you know about them? In the first case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court tightened pleading standards in Federal controversies, holding that the facts in a complaint may not fall shy of “plausibility.” In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court held that “mere conclusory statements” and “threadbare recitals of the elements of a cause of action” are insufficient to sustain a claim in Federal courts.
The Twiqbal standard is now invoked by Defendants to dismiss claims as a matter of routine. Commentators have criticized the Court’s pleading decisions as having altered “the meaning of the Federal Rules outside of the traditional procedures contemplated by the Rules Enabling Act.”[1] Further, the new pleading standard has placed a tremendous burden on plaintiffs who face an asymmetric information disadvantage against well-resourced defendants. Perhaps most disheartening, is Twiqbal’s destructive effect on civil rights and employment discrimination claims. Since their opinions were issued, countless lawsuits against government entities and corporations have been tossed on “plausibility” grounds.
So, what can be done to guard against possible dismissal at the early stage of a lawsuit? A couple of actions help. First, the plaintiff and their legal team should seek out and include as much publicly available information about the facts in the complaint prior to filing. Second, the recitation of those facts should be sufficiently intertwined with the elemental legal standards for the claims at issue. Unfortunately, even taking these steps does not automatically ensure that your complaint is dismissal-proof. Surviving dismissal at the pleading stage of a lawsuit often involves tweaking your client’s complaint to suit the court’s particular interpretation of Twiqbal.
[1] Alexander A. Reinert, The Supreme Court’s Civil Assault on Civil Procedure, ABA Online (Dec. 31, 2015), available at: https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2015–vol–41-/vol-41-no-1-lurking-in-the-shadows-the-supreme-court/the-supreme-courts-civil-assault-on-civil-procedure/.
