Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler and the Uncertain Future of Antitrust Enforcement
27 Rev. Litig. 1 (2008)
35 Pages Posted: 20 Sep 2012
Date Written: 2012
The Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) is a watershed ruling whose impact on private litigation, especially antitrust litigation, will reverberate for decades. Twombly has redefined notice pleading and has clearly raised the bar for plaintiffs. To survive a motion to dismiss, a complaint must be “plausible,” that is, it must contain enough facts to raise a reasonable expectation that pretrial discovery will reveal evidence of illegal conduct. Conclusory allegations or formulaic recitations of the elements of a claim are not sufficient and can be ignored by the court. In so ruling, the Court explicitly abrogated the plaintiff-oriented “no set of facts standard” set forth in Conley v. Gibson, 355 U.S. 41 (1957), which had governed pleadings for half a century.
Twombly, however, is not simply about pleadings. Underlying the decision were the Court’s broader policy concerns about the need to (1) rid the system of baseless litigation; and (2) cabin the high cost of pretrial discovery. The Court concluded these concerns were best addressed at the motion to dismiss stage. Substantively, Twombly has engineered a dramatic shift in the balance of power in antitrust litigation from plaintiffs to defendants, reversing a trend that Milton Handler had bemoaned over forty years ago.
Nor is Twombly without its critics. The decision is at odds with the fundamental tenets of notice pleading and the vague plausibility standard has created much uncertainty that will take years for the lower courts to resolve. Moreover, to the extent the Court’s ruling was motivated by the high cost of discovery, that concern might be better addressed by enforcement of existing discovery limitations rather than by wholesale revision of pleading standards. Unquestionably, the path to victory for plaintiffs in private antitrust litigation has become more arduous in the wake of Twombly.
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