The Supreme Court may announce as early as Monday that it plans to revisit the controversial issue of pleadings standards under Rule 8 of the Federal Rules of Civil Procedure.
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Critics of Iqbal respond that unless they can get past the pleadings stage and engage in discovery, they have no way of proving that senior officials were directly involved.
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If the Court takes any action on Ashcroft’s petition at Friday’s conference, it will announce its decision on Monday.
I'm not hopeful that the current makeup of the Court will overrule Twombly and Iqbal. Nor am I hopeful that any court can give an objective test to determine whether an allegation is "plausible" or not. Several years ago, an allegation that Bernie Madoff was running a multibillion-dollar Ponzi scheme wasn't plausible, but it was factually true.
You can probably guess that I'm not a fan of Twombly and Iqbal, which I see as creations of an activist Supreme Court. However, the silver lining to the decisions is that they're at least being used to get rid of some of the ridiculous affirmative defenses being used by defendants:
The fallout from the [Twombly and Iqbal] decisions has been significant: multiple bills have been proposed to reverse the holdings, which have been cited thousands of times by federal courts as defendants successfully move to have suits dismissed based on the heightened pleading requirements.
But now some defendants are feeling the sting, because a growing number of federal courts are applying the reasoning of Twombly-Iqbal to affirmative defenses.
“What’s good for the goose is good for the gander,” said Tim Schulte, a partner at Shelley & Schulte in Richmond, Va. who recently won a motion applying Twombly-Iqbal to the defendant’s affirmative defenses.
