On June 28, I posted about the change in federal pleading standards brought about by the Supreme Court in the Iqbal and Twombly decisions, and how those decisions infringe upon the rights of American terrorism victims to sue terrorist financiers in federal court. Those decisions could also threaten every American’s religious liberty through imposition of an uncertain “plausibility” standard, which invites “defensive lawyering” and subjective dismissals of complaints by individual judges. The Alliance Defense Fund, a Christian-based nonprofit which litigates religious freedom cases nationwide, criticized the Iqbal-Twombly standards in a a January 26, 2010 letter to the Chairman of the Senate Judiciary Committee. Here’s what ADF said about the decisions:
“Our concern with this is not that the Twombly rule makes our plaintiffs work more difficult, or our defense work easier. Rather, our concern is that vague, malleable rules are bad news when it comes to orderly, reasoned processes. Already, the Twombly standard has unnecessarily complicated the early stages of litigation by encouraging “defensive lawyering.” 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. Worse, the virtually unbounded discretion built into the Twombly standard may encourage some overworked, harried judges to dismiss cases based upon their subjective notation of what is “plausible,” and leave it to the appellate courts to sort out. The result, again, is further strain on judicial resources, and litigating matters that would not have been at issue under Conley.”
The letter cited three cases in which ADF has already faced the impact of the Iqbal-Twombly decisions: Freedom from Religion Foundation, Inc. v. Obama, 617 F. Supp. 2d 808; Boardley v. U.S. Dep’t of Interior, 605 F. Supp. 2d 8; and Creed v. Family Express Corp., 101 Fair Empl. Prac. Cas. (BNA) 609. And ADF concluded that it would be “prudent” for either the courts or the Congress to resolve the mess created by the new standards by returning to the practical, fair pleading standard employed for decades under the Conley case, also discussed in my June 28 post.