An unlikely ally has joined the fight to overturn two recent Supreme Court decisions – Bell Atlantic v. Twombly and Ashcroft v. Iqbal – which made it much harder for plaintiffs to file claims in civil disputes. Legal Times and Wall Street Journal blog posts today note that the conservative Alliance Defense Fund has penned a letter to lawmakers supporting legislation to overturn the decisions to restore the pleading standard and Americans’ basic legal protections.
The ADF is a Christian litigation group that works with and for a number of other well known conservative groups. Adding this group’s endorsement to the wide range of employment, civil rights, legal, antitrust and consumer groups that also support the effort will hopefully build momentum for passage of bills that would restore notice pleading.
Iqbal and Twombly did away with notice pleading, meaning plaintiffs now must show up with the hard facts supporting their complaint or the case can get thrown out before it gets to discovery. And since discovery is typically the only way to obtain the necessary information, such as personnel files and internal company memos, the new standard is a catch-22 that has been used to throw out all sorts of important and worthy causes.
But ADF’s complaint is that the new standard has complicated the early stages of litigation. Their letter to House and Senate Judiciary Committees states that “Plaintiffs’ lawyers are now motivated to increase the complexity, length, and detail of their complaints, anticipating that their case will be one that needs ‘amplification’ to become ‘plausible.’ In turn, defense lawyers now have to respond to these expansive ‘toss in the kitchen sink’ pleadings, and are motivated to litigate motions to dismiss that they never would have invested in under the clear Conley standard. This is not speculation, but based on direct experience with Twombly in our cases.”
Hopefully, ADF’s endorsement will broaden support for the bills that would fix Iqbal. In the House, Reps. Jerrold Nadler (D-NY), Hank Johnson (D-GA) and House Judiciary Chairman John Conyers (D-MI), have introduced the Open Access to Courts Act of 2009 (H.R. 4115). In the Senate, Sen. Arlen Specter (D-PA) has introduced the Notice Pleading Restoration Act of 2009 (S. 1504).