Why Twombly is Good Law (But Poorly Drafted) and Iqbal Will Be Overturned
Baylor University - Law School
January 4, 2011
Indiana Law Journal, Vol. 87, 2012
In the attempt to decipher what is required to plead a claim for relief in federal court after the Supreme Court’s decisions in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, commentators have usually combined these two cases as being part of the same "revolution" in pleading. The Iqbal case is often credited for clearing up lingering questions regarding the scope of the "plausibility" analysis introduced in Twombly. Apart from this issue, however, Twombly and Iqbal have usually been discussed as a cohesive pair. They have been jointly criticized. Occasionally, they have been jointly praised.
The tendency to view Twombly and Iqbal as a collective unit has, unfortunately, interfered with efforts to understand pleading doctrine. The cases have dissimilar analytical foundations. In short, the Twombly decision can be justified as merely an application of preexisting principles regarding pleading; the Iqbal case, however, was wrongly decided and is destined to be overruled. To jointly criticize both opinions is to throw the baby (Twombly) out with the bathwater (Iqbal); to jointly praise both opinions, to continue the analogy, is to miss how dirty the bath water is in which the baby is sitting. Until Twombly and Iqbal are decoupled and considered as separate entities, pleading jurisprudence will continue in a state of disarray.
It is not necessarily surprising that academic commentators have treated Twombly and Iqbal as one-in-the-same. The Court’s Iqbal opinion reads as though it is a simple application of the Twombly decision. It is likely that the Iqbal Court even thought as much. The underlying problem is the Twombly opinion.
The Twombly opinion is muddled on three critical points. All three of these points are necessary to an understanding of the Twombly case. The inarticulate manner in which these points were discussed in Twombly is largely responsible for the confused status of pleading doctrine; it is also the source of the erroneous decision in Iqbal. Because of the ambiguity in the Twombly opinion, it was interpreted by the Iqbal Court in a manner that was inconsistent with prior Supreme Court precedent.
First, the Twombly opinion does a poor job of pinpointing the critical defect in the plaintiffs’ complaint, which was the complete lack of factual specificity provided in the complaint regarding the event on which the defendants’ liability was premised. Scholars have often failed to appreciate that Twombly was a case about the factual specificity, or the lack thereof, in the plaintiffs’ complaint. The Iqbal Court appears to have made this same mistake.
Second, the Twombly opinion is unclear as to how the "plausibility" analysis, which was introduced in Twombly, relates to the question of factual specificity. It is tempting to interpret the Twombly opinion such that plausibility is a measure for factual specificity. Under this reading, a complaint is sufficiently factual specific when it includes enough factual detail to be plausible. As such, plausibility is a requirement that every civil complaint filed in federal court must meet. The better reading of Twombly, however, is that the plausibility analysis is required only when the factual specificity requirements of Rule 8 have not been met. Pursuant to this understanding, factual specificity serves as a trigger for the plausibility analysis: Only when the complaint has not been drafted with sufficient factual specificity does the plausibility analysis become necessary. This reading of Twombly reconciles the case with existing pleading doctrine, although Twombly would still serve as an incredibly important case of first impression: Twombly is the first Supreme Court opinion to determine that the factual specificity standard of Rule 8 had not been met, and it instructs lower courts how to proceed in this event - by conducting the plausibility analysis.
This leads to the third point on which the Twombly opinion is equally vague: What is the test for factual specificity which triggers the plausibility analysis? The Iqbal Court (as well as most commentators) focused on the portion of the Twombly opinion discussing the "conclusory" nature of the conspiracy allegations in that case. Thus, in Iqbal, the Court proceeded to a plausibility analysis because the allegations of discriminatory intent in that case where "conclusory." It makes no sense, however, for the plausibility analysis to be triggered by the existence of conclusory allegations. Whether an allegation is conclusory is different than whether the allegation is factually specific. The Twombly complaint involved a conclusory allegation that was not factually specific; the Iqbal complaint, on the other hand, involved a conclusory allegation that was factually specific. By conflating the factual specificity of an allegation with whether that allegation is conclusory, the Twombly opinion occasioned the Iqbal decision in which the plaintiffs’ complaint was dismissed despite having been drafted with as much factual specificity as possible.
Once the confusion stemming from the jumbled Twombly opinion is sorted out, the Iqbal decision stands out as an eyesore within pleading jurisprudence. It is flatly inconsistent with Swierkiewicz v. Sorema N.A., a unanimous decision by the Supreme Court decided only seven years prior to Iqbal. The Swierkiewicz decision was not overruled, nor even mentioned, in the Iqbal opinion. In addition, the original understanding of Rule 8, as pronounced in Conley v. Gibson, would not have required that a plaintiff such as Iqbal even allege the defendants’ discriminatory intent, let alone demonstrate that allegation’s "plausibility."
The organization of this article is as follows: Part I provides a brief history of pleading theory within the United States and a reexamination of the Conley v. Gibson decision. Part II demonstrates that Twombly was a case in which the factual specificity of the complaint was at issue. Part III explores the different ways in which Twombly’s plausibility analysis might relate to factual specificity, concluding that plausibility is triggered only when a complaint lacks factual specificity. Part IV argues that the Iqbal Court’s fundamental error was to apply the plausibility analysis because of the existence of the conclusory allegation.
Number of Pages in PDF File: 59
Keywords: Twombly, Iqbal, Pleading, Rule 8, Rule 12, Civil Procedure, Complaint, Conley, Gibson
Date posted: January 5, 2011 ; Last revised: April 16, 2012