The After-Shocks of Twombly: Will We Notice Pleading Changes?

Abstract

Bell Atlantic Corp. v. Twombly was decided by the Supreme Court on May 21, 2007 and has already been cited more than 9400 times as of March 15, 2008. The majority decision was not subtle in broadcasting its dissatisfaction with notice pleading, at least in large, complex, antitrust conspiracy cases, and the dissent certainly viewed the majority's holding as a procedural revolution. The bar and academic community immediately began to weigh in on the question of whether the new standard applies to all civil cases or merely to antitrust conspiracy cases, with most commentators concluding that the pleading landscape had shifted. The trickier questions are likely to revolve around how to satisfy the new standard in different cases. We have yet to parse fully the impact of Twombly or how significant an adjustment to practice it will require, but there will be a shake-out period (which is already well underway) in which lawyers will do what they have been trained to do namely, testing the limits and meaning of the new phraseology used by the Twombly court to measure and examine pleadings. This paper explores the contours of the post-Twombly landscape and discusses the questions and concerns that are likely to require court decision or rule revision.