Complex Litigation: Troubling 'Twombly,'

Abstract

Commentary and analysis of the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly (U.S. May 21, 2007), reversing and repudiating longstanding pleading standards articulated by the Supreme Court in the landmark pleading case, Conley v. Gibson. The article discusses the Court’s new “plausibility” standard for pleading in federal Sherman Act antitrust actions, sufficient to withstand a motion to dismiss the plaintiff’s complaint on a Rule 12(b)(6) motion to dismiss for failure to state a claim for relief. The majority’s decision, written by Justice Souter and joined by six Justices, contains a lengthy analysis of federal pleading under Rule 8(a)(2) and the confusion engendered by Conley’s “no set of facts” language. The majority’s revised pleading approach sets forth a new standard that makes significant inroads on the “notice pleading” regime that prevailed in federal courts for more than fifty years. The article also surveys the lengthy dissenting opinion by Justices Steven and Ginsburg, rejecting the majority’s striking revision of the federal pleadings standard and suggesting that the Conley v. Gibson standard was deserving of a more decent burial by the Court.