The other day we put up a piece about a Twombly/Iqbal law review symposium that promised “diverse interpretations.”  From an academic perspective, it was an impressive collection of articles that attacked Twombly/Iqbal from no fewer than 12 different directions.  But from our perspective, it turned out to be something of a disappointment, since the promised “diversity” never materialized.  Instead it was the usual academic Greek chorus of criticism, with the only “diversity” being differing avenues of criticism.

Having smacked that one down, we’re feeling like Mickey Mouse as the Sorcerer’s Apprentice in Fantasia – smash one broom and two more rise up in its place.  Since that post, we’ve been deluged with additional articles….

Well, not exactly deluged, but our readers have sent us a couple.

The first of these, Edward A. Hartnett, “Responding to Twombly & Iqbal: Where Do We Go from Here?” generously views Twombly/Iqbal “as equivalent to the traditional insistence that a factual inference be reasonable.”  Id. at 1.

We think there’s quite a bit more to Twombly/Iqbal than that.  As we’ve said elsewhere, our view is that Twombly/Iqbal have taken the “a short and plain statement of the claim showing that the pleader is entitled to relief” language of Fed. R. Civ. P. 8(a)(2), and given it a different gloss – one that emphasizes the “showing that the pleader is entitled” language more, and the “short and plain” language less, than was the case under the now-discarded Conley v. Gibson, 355 U.S. 41 (1957), formulation.  From an institutional standpoint we thus view Twombly/Iqbal and Conley as equivalents, with the Court having as much authority to adopt one interpretation as the other.  But make no mistake about it, the interpretation itself has changed, and we think it’s the right one given the litigation explosion that Conley at minimum facilitated.

But we agree with Professor Hartnett that the change isn’t all that radical – although here, we think a little radicalism might be a good thing.  In the last piece in PENNumbra, we were criticized because we only cited one case (when we were bound by a tight word count) for the (we thought well-accepted) proposition that courts were already retreating from the impractical Conley “any set of facts” rule before Twombly.  Well, we don’t have a word count here, as much as some might consider it desirable.  As much as we respect Professor Burbank, that particular comment was hogwash.  E.g., Kyle v. Morton High School, 144 F.3d 448, 455 (7th Cir. 1998) (Conley’s “no set of facts” language “has never been taken literally”) (citation and quotation marks omitted).

That judicial reluctance starts at the top. There are several pre-Twombly Supreme Court cases that departed from Conley rather dramatically.  A long time ago (like when Bexis started practicing law) the Supreme Court held that “a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.”  General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 528 n.17 (1983).  Conley’s “any set of facts” standard could not mean literally “any” set of facts.  Id. at 526 (it is “not. . .proper to assume that the [plaintiff] can prove facts that it has not alleged or that the defendants [can be liable] in ways that have not been alleged”).

More recently, in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), a unanimous court found a “suffered damages thereby” causation allegation formulaic and told the plaintiff to go away.  A “short and plain statement” (the part that the other side emphasizes) “must provide the defendant with fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”  Id. at 346. Then the Court discussed the same problems that eventually brought about the express change wrought by Twombly/Iqbal:

[The Court rejected reading Rule 8 in a way that] would permit a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the [discovery] process will reveal relevant evidence.

Id. at 347 (citation and quotation marks omitted).

[A]llowing a plaintiff to forgo giving any indication of the [damages] and proximate cause that the plaintiff has in mind would bring about harm of the very sort the statutes seek to avoid. . .abusive practices including the routine filing of lawsuits. . .with only [a] faint hope that the discovery process might lead eventually to some plausible cause of action.

Id. (citation and quotation marks omitted).  See also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007) (“the complaint must say enough to give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests”) (following Dura Pharmaceuticals); Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (courts must “insist” upon “specific, nonconclusory factual allegations” before a suit may “survive a prediscovery motion for dismissal”); Papasan v. Allain, 478 U.S. 265, 286 (1986) (affirming dismissal of complaint full of “legal conclusions” that “we are not bound to credit and may disregard”).  So it’s not at all accurate to view Twombly/Iqbal as somehow coming from out of the blue.  The Supreme Court had already duly warned the bar – repeatedly.

And notwithstanding Conley, a bunch of court of appeals decisions likewise sought (to varying extents) to rein in conclusory pleadings.  Tal v. Hogan, 453 F.3d 1244, 1261 (10th Cir. 2006) (“[b]are bones accusations. . .without any supporting facts” held “insufficient”); Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 55 (1st Cir. 2006) (refusing to “credit bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like”); Eastern Food Services, Inc. v. Pontifical Catholic University Services Ass’n, 357 F.3d 1, 3 (1st Cir. 2004) (dismissing suit as “not a plausible antitrust case”); Farm Credit Services v. American State Bank, 339 F.3d 764, 767 (8th Cir. 2003) (“we are free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations”); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003) (“conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal”); Dickson v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002) (“allegations must be stated in terms that are neither vague nor conclusory’”); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) (“we accept neither inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint, nor legal conclusions cast in the form of factual allegations”); DM Research v. College of American Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (complaint must plead a “factual predicate concrete enough to warrant further proceedings” as “the price of entry, even to discovery”); George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 139 (2d Cir. 1998) (following Associated General Contractors formulation); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998) (“[w]e do draw on the allegations of the complaint, but in a realistic, rather than a slavish, manner”; rejecting “unsupported conclusions and unwarranted inferences”); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (“liberal Rule 12(b)(6) review is not afforded legal conclusions and unwarranted factual inferences”; “a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory”); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (notwithstanding Conley, “conclusory allegations or legal conclusions masquerading as factual assertions will not suffice to prevent a motion to dismiss”); Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 & n.2 (10th Cir. 1989) (following Associated General Contractors formulation; “courts may require some minimal and reasonable particularity in pleading before they allow an. . .action to proceed”); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1155 (9th Cir. 1989) (following Associated General Contractors formulation); Commonwealth v. PepsiCo, Inc., 836 F.2d 173, 182 (3d Cir. 1988) (“plaintiff must plead the essential facts” because “litigation today is too expensive a process to waste time on fanciful claims”); Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972) (“bare bones statement. . .without any supporting facts permits dismissal”); Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968) (affirming dismissal of “a series of broad conclusory statements unsupported, for the most part, by specific allegations of fact”).  Please note, we deleted all internal quotations in the various citations.

You want cases?  You got cases.

So we don’t give much credence to complaints that Twombly/Iqbal drastically changed the law.  Iqbal, after all, was brought under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), a case that created a whole new kind of tort (now named for the case – so-called “Bivens actions”) out of equally whole cloth.  Bivens was thus a far more drastic change in the law than Twombly/Iqbal could conceivably be – yet Bivens is championed by Twombly/Iqbal’s critics. The “radical change” argument is thus a red herring; it’s only a matter of whose ox is being gored.

But all this being said, we’re not willing to go through the gyrations that Professor Hartnett is to avoid the conclusion that Twombly/Iqbal overruled ConleyHartnett Article, at 3-4.  We view “earned its retirement,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007), as simply a rhetorical way of saying “overruled” – and, we might add, good riddance.  We share the recently expressed view in Boroff v. Alza Corp., ___ F. Supp.2d ___, 2010 WL 395211, at *2 (N.D. Ohio Jan. 27, 2010), that “the Supreme Court has consigned the Conley standard to the dustbin of history.”

Most of the Hartnett Article is a critique of various legislative proposals to overturn Twombly/Iqbal and restore the pro-litigation status quo ante.  Needless to say we oppose them all.  In light of the above, however, we’d have to agree with Professor Hartnett that Professor Burbank’s proposal to restore “interpretations of the Federal Rules of Civil Procedure by the Supreme Court of the United States, and by lower courts in decisions consistent with such interpretations, that existed on May 20, 2007” – that is to say the day before Twombly was decided – isn’t likely to do anything except make a big mess.  It’s not hard at all to rebuild Twombly from its judicial precursors.  Hartnett Article, at 6-7.

One notable thing about all of these proposals is that they’re – to use law-professor-speak “transsubstantive.”  That is, they seek an across-the-board rollback of the new Twombly/Iqbal “plausibility” pleading standard and to allow conclusory and implausible allegations to state claims for purposes of Rules 8 and 12 in all types of litigation.  Most of these proposals (except Professor Burbank’s) actually go far beyond Twombly/Iqbal and would overrule all or most of the prior precedent we cited above. That strikes us as facially overkill and indicative of unexpressed (and in some cases, ulterior) motives at work. Thus, we agree with Professor Hartnett that:

In short, proposals that seek to sharply reduce or completely eliminate the power of a court to rely on the conclusory nature or the plausibility of an allegation seem to me to either not achieve their purpose, or to make Rule 12(b)(6) ineffective as a means of testing the substantive sufficiency of a complaint. They are not the way to go either.

Hartnett Article, at 14.

Professor Burbank, for one, identifies with “civil rights” and “employment discrimination” “victims.”  We’ve heard that elsewhere, too – he’s hardly alone in that respect.  But then, why aren’t there proposals along the lines of what was done with fraud claims in Rule 9(b) and with securities litigation in the Private Securities Litigation Reform Act of 1995?  Congress found a particular problem with pleading in the securities context and passed a statute imposing a new standard specifically for that kind of litigation.  If there’s a perceived pleading problem peculiar the civil rights field – why not at least propose a similar, and similarly limited, fix?

We suspect that’s because of the tort (and other) lawyers lying in the weeds.  All of the current proposals would, beyond allowing just civil rights plaintiffs to proceed with implausible lawsuits, also restore the unfettered ability of an asbestos plaintiff (more, precisely counsel) to sue 100 defendants upon a single conclusory and undifferentiated allegation of “exposure to defendants’ products.”  The literature we’ve seen is notably lacking in arguments why Twombly/Iqbal shouldn’t apply in the sandbox where we play – mass torts involving prescription medical product liability litigation.  So if there’s a problem with Twombly/Iqbal at all – and we’ve hardly found the emotionalism and litigation-uber-alles mindset that passes for argument in this area persuasive – maybe the answer is to ditch transubstantivism.

The second article, Robin J. Effron, “The Plaintiff Neutrality Principle: Pleading Complex Litigation in the Era of Twombly and Iqbal,” does just that – sort of.  Its thesis is that certain types class action plaintiffs should be exempt from Twombly/Iqbal and thus be uniquely allowed to plead implausible claims, because class actions supposedly create judicial economies of their own.  Effron Article at 2037-40.  Professor Effron gets to this conclusion through the proposition that “it is cheaper to litigate a claim in one or a small number of cases rather than many times over.  Id. at 2038.  That’s a false assumption, at least in our neck of the woods, because even gigantic pharmaceutical mass torts are rarely tried more than a few dozen times, as was the case in Vioxx, Baycol, Bone Screw (one trial in the entire litigation), and presumably others in which we didn’t have personal involvement.  Instead, class actions increase litigation, and the cost of litigation, by sweeping up de minimus claims – “negative value suits” – that would never have been in the legal system to start with. Litigation costs are increased across the board in class actions, because the dramatically increased stakes make every bit of discovery, and every tactical ploy, both worth doing and worth defending against.

The Effron Article contends, however, that “class actions are different.”  Article, at 2016.  We would agree, but only in the sense that they’re worse.  As has been long recognized, class actions more subject to being abused to obtain extortionate settlements than non-aggregated litigation.  E.g., Castano v. American Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996) (a class action “magnifies and strengthens the number of unmeritorious claims”); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1298 (7th Cir. 1995) (defendants “may not wish to roll these dice. That is putting it mildly. They will be under intense pressure to settle”).  For that reason, we think that a “formulaic” pleading of satisfaction of the Rule 23 elements of a complaint is at least as bad (and probably worse, given the policy basis of Twombly/Iqbal) as any other “formulaic” pleading.  If legal conclusions concerning the Rule 23 elements are credited, the litigation gets a whole lot more expensive in a big hurry.

We don’t think it’s the law either, that class actions are “different” for Twombly/Iqbal purposes.  As we highlighted previously, courts have begun using Twombly/Iqbal to police class action allegations.  See Central Regional Employees Benefit Fund v. Cephalon, Inc., 2009 WL 3245485, at *4 (D.N.J. Oct. 7, 2009).  The Effron Article helpfully identifies other similar precedent involving other areas of the law.  Id. at 2053-54.  Even it agrees, however, that under current law, “class actions are subject to the same plausibility requirements” as other litigation.  Id. at 2017. That’s refreshing honesty, at least.

The Effron Article also claims that class actions impose costs upon plaintiffs that make them unlikely to be frivolous:

Once one accepts the fact that, in most cases, plaintiff’s pretrial litigation costs are nontrivial, economic modeling of litigant behavior suggests that plaintiffs’ pretrial litigation costs are a meaningful constraint on a plaintiff’s willingness to file a meritless claim.

Article at 2036 (footnotes omitted).  Well phooey on economic modeling then.  It doesn’t get anywhere close to explaining real world behavior – the “filing frenzy” of multiple class action complaints being filed with days, if not hours, of events such as product recalls.  Professor Effron’s “accepted” fact is also inconsistent with what we see routinely in MDL practice, where defendants spend many millions on responding to discovery, but rarely get more than questionnaires and medical records from the other side.  Finally, any “model” has to account for the peculiar effect of even a meritless class action having the substantive effect of tolling the statute of limitations for every member of the putative class.  Please, Professor Effron, get out of that ivory tower every now and then.

We do agree with Professor Effron that Twombly/Iqbal is not applicable to class certification.  See Effron Article at 2018-19.  We’ve blogged before about cases such as In re Hydrogen Peroxide Litigation, 552 F.3d 305 (3d Cir. 2008), and In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006).  Class certification is governed by those cases, which we think involve considerably more rigorous examination of all aspects of such litigation (and rightfully so) than occurs under Rule 8.  Under Rule 8, the available relief is not denial of class certification, but striking of class action allegations.  That means that under Twombly/Iqbal, class certification is not at issue, and if such a motion is granted, would never become an issue.

Finally, as to class actions, we also tend to agree with the general thrust of Professor Effron’s take on transsubstantivism in the class action context, although probably not in a way she would approve.  We think class actions generally are ill-suited for transsubstantive treatment.  We would prefer to see Rule 23 done away with entirely, and the standards for class certification determined legislatively on a subject-by-subject basis, as has long been the case with the Magnuson-Moss Act.  It may well be that, for reasons of jurisprudential policy, the standards for class certification in civil rights actions should be different than in mass torts such as prescription medical product liability litigation – but that’s a topic for another day.

On the question of Twombly/Iqbal, we’re litigators, not professors, so we don’t have the time or inclination to create fancy theoretical constructs such as “plaintiff neutrality principles.”  Effron Article, at 2045-51.  Thus, as a rule of thumb for our prescription medical product liability litigation, we go with what we’ll call the “one fact rule.”  It’s not particularly elegant, but it works for us.  The Court in Aschroft v. Iqbal made a number of points, among them these:  (1) Rule 8 “does not require detailed factual allegations,” 129 S. Ct. 1937, 1949 (2009); but it (2) “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation,” id.; which means that (3) “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”  Id. Thus (4) “only a complaint that states a plausible claim for relief survives a motion to dismiss,” id. at 1950, and to get past Rule 12, the plaintiff has to (5) “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  Id. at 1949.  Only after that does discovery come into play, since plaintiffs can “not unlock the doors of discovery. . .armed with nothing more than conclusions.”  Id. at 1950.

So when we get a complaint, we look to see whether, there’s at least one actual fact pleaded that supports each essential element of a cause of action.  A plaintiff can plead more if s/he so pleases, but there has to be at least one – otherwise we’ll probably file a Twombly/Iqbal motion.

Let’s explore this a little further with a hypothetical product liability claim involving drug or medical device X. We start with “so and so makes X.”   Assuming there’s a factual basis for it, that satisfies the Restatement §402A requirement that there be a product seller.   Now it needs to be linked to the plaintiff, so we look for something like “on such and such date, Dr. A prescribed X to plaintiff, his/her patient,” and (although in some cases this can be assumed) “Plaintiff took/used X.”   That suffices to establish exposure – unless there are unusual circumstances, such as the Jozwiak case we blogged about on Monday, where the plaintiff made an impossible allegation that put two different pain pumps in the same plaintiff’s shoulder at the same time.  Finally the plaintiff should state what is the alleged injury.  “Plaintiff suffers from condition Z,” and goes on and list whatever the injuries are.

So far, so good.  We don’t see any fairness problems here at all.  All of this information is, or should be, in the plaintiff’s possession.  Everyone has a right to his or her own medical records, and a plaintiff (or more specifically counsel) should at minimum review them before filing suit.  See Effron Article, at 2047 (“[w]hen it comes to a plaintiff’s medical condition, the plaintiff himself is assumed to possess the relevant knowledge”).

Beyond that, it depends on the type of claim.  Assuming a warning claim – the most common – the plaintiff needs to plead causation and defect.  Causation comes in two parts, medical and warning (sometimes called actual and proximate cause).  So is the defect stated?  “The warnings for X didn’t mention/understated/whatever Z, which the defendant knew/should have known because of [some piece of scientific information known at the time of prescription].”  That should be enough for Rules 8/12, again assuming the facts are valid, to plead a warning defect.  It also goes a long way to pleading medical causation, since the cited piece of scientific information presumably links X to Z.  If it doesn’t, well that plaintiff has more serious legal problems than Twombly/Iqbal.

Prescription medical product warnings are, of course, subject to the state of the art defense, so we don’t think it’s “plausible” to allege a warning defect only in light of after-discovered knowledge.  Do it, and there’ll be a motion.  In a warning case, every state except West Virginia, follows the learned intermediary rule, so in pleading warning causation, we’re expecting to see some fact that suggests that Dr. X in some way, shape, or form, relied upon the warning that’s alleged to be defective.

Again, we perceive no prospect unfairness.  The warnings are public information, as is the scientific data that’s the basis of the inadequate warning claim.  Plaintiffs (or their lawyers) have the ability – a lot more than defendants – to talk to the prescribing physician to find out what led him/her to write the prescription.  See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (allegations concerning physician conduct sufficiently well pleaded).

If it’s a design defect case (more common in devices), or a manufacturing defect claim, then we’ll expect a fact indicating the nature of the defect (component D should have been smooth rather than rough; X contained half/twice as much of the active ingredient as intended).  Simply saying that X was defective because it broke isn’t going to cut it with us, as we’ve discussed elsewhere, so failure to say what the defect is (or to state facts creating a circumstantial case) would likely draw a motion.  In practice, proper pleading will require that plaintiff’s counsel run the case by an expert of some sort.  See Effron Article, at 2049 (allegation that “‘I ate Twinkies. Twinkies caused my hepatitis to worsen’ would be insufficient”).

So that’s our quick and dirty rule of thumb for what’s “plausible” under Twombly/Iqbal.  One fact per essential element of a claim.  It doesn’t involve anything that’s inherently outside of a plaintiff’s access.

The issue of a plaintiff’s access to evidence has more “plausibility” (so to speak) in the PMA device cases, where preemption forces plaintiffs to allege some sort of FDCA regulatory violation in order to state a claim.  We’ve heard lots of plaintiffs argue that they can’t support such allegations with any facts unless they have discovery first.  In some PMA cases (where there’s been no recall or other FDA enforcement action) they may well have a point as a practical matter.

Tough.

That’s not a problem with pleading; rather it’s an effect of PMA preemption.  The preemption, not Twombly/Iqbal, prevents such plaintiffs from satisfying our “one fact” rule.  And that’s just what preemption is supposed to do – impose a legal rule that bars claims that might otherwise be meritorious.  It’s no different than the statute of limitations or any other defense in that respect.  For that reason, we don’t view the “I need discovery” bleating to be a legitimate criticism of Twombly/Iqbal.  Plaintiffs aren’t allowed to be “private attorneys general” ferretting out FDCA violations – the statute limits enforcement to the government.

Our “rule of thumb,” and any other faithful application of Twombly/Iqbal, does involve – horror of horrors – plaintiff’s counsel actually having to investigate the case prior to filing the complaint.  That always means looking through the medical records.  In a warning case, that probably means interviewing the prescriber.  In a design or manufacturing defect case, that probably means engaging an expert witness and getting at least a preliminary opinion.  In short, under Twombly/Iqbal, Rules 8 and 12 now provide an effective means of enforcing the “representation” specified by Fed. R. Civ. P. 11(b)(3) that the “factual contentions have evidentiary support.”  Twombly/Iqbal also means significant curtailment of litigation by word processor, since a one-fact standard does require more case-specific pleading, just not full-blown “detailed factual allegations.”

We think that’s just great.  Any requirement that requires case-specific pleading is going to curtail the filing of thousands of almost identical, completely formulaic – we’ve even called them “schlocky” – complaints that create mass torts.  Most of these claims, a large majority, are effectively worthless, and would be quickly dismissed if they ever showed up on a trial list.  Plaintiffs’ counsel know this, which is why (as we’ve discussed) they often try to file them in bulk to avoid even the filing fee.  Their sole of these claims’ existence is the numbers game:  to try to terrorize defendants into settling massive litigation.  The cost of litigation inherent in an overly generous reading of Rule 8 is precisely what Twombly/Iqbal is all about:

We alluded to the practical significance of the Rule 8 entitlement requirement. . .when we explained that something beyond the mere possibility of loss causation must be alleged, lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.  So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.  Some threshold of plausibility must be crossed at the outset before a. . .case should be permitted to go into its inevitably costly and protracted discovery phase.

Twombly, 550 U.S. at 557-58 (lots of internal cites and quotation marks omitted).  And it’s not just discovery costs either.  Litigation imposes a variety of costs upon defendants that justify critical scrutiny of pleadings:

Litigation. . .exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government. . . .  It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants.  It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process. . . .  Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery.  We decline respondent’s invitation to relax the pleading requirements on the ground that. . .petitioners [should have] minimally intrusive discovery.  That promise provides especially cold comfort in this pleading context . . . . Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.

Iqbal, 129 S. Ct. at 1953-54 (lots of internal cites and quotation marks omitted).

And that’s why we don’t care for Professor Hartnett’s idea of “allegations likely to have evidentiary support after a reasonable opportunity for discovery.”  Hartnett Article, at 17-23.  From a defense perspective, it’s toothless, since Professor Hartnett abjures sanctions under Rule 11(b)(3), even though ostensibly relying on that rule as the proposal’s major justification in the current Rules.  Article, at 21-22.  The supposed distinction between a plaintiff being “wrong” and “unjustifiably wrong” is cold comfort to a defendant put through great expense by an implausible claim.

Twombly/Iqbal are about reining in the cost of litigation; we might feel differently about Professor Hartnett’s proposal if it required payment of all a defendant’s costs of “appropriate” (the Article’s term) discovery – should designated allegations nonetheless turn out to be unfounded.  But under the proposal as offered, there’s no penalty for over-designation.  If it’s one thing that the fifty-year life span of Conley established, it’s that unrestrained pleading imposes huge discovery costs on defendants.  Even Professor Burbank (who really tried hard) was reduced to relying upon a single study of tiny cases in which even then 25% of the parties believed the process was too expensive.  The excessive cost of modern discovery is simply not a issue capable of dispute any longer.

We understand that a lot of academics feel that they have to help their students get jobs, or else eventually they won’t have jobs either.  Thus, they tend to support anything and everything that results in more, rather than less, litigation.  As defense lawyers, we don’t share that mindset.  Rather, we agree with the Court in Iqbal, supra, that there’s is no entitlement to discovery, “appropriate” or otherwise, unless the plaintiff can construct a plausible complaint without it.

As we explained above, in discussing the PMA device cases – if the substantive law requires plaintiffs to plead something not publicly available and thus not ordinarily accessible without discovery, the concern should be with the substantive law, not the pleading rules.  A law (statutory or otherwise) that requires, as an essential element, facts that cannot routinely be pleaded probably does so for a reason, and we’d expect that reason to be to limit access to the remedy it provides.

In short, a cause of action that’s hard to plead was probably supposed to that way.

In the overly litigation friendly Conley environment, any number of such causes of action were simply being overused.  If that means there’s a “problem” to be solved, that problem involves amending the substantive law – in a non-transsubstantive manner – and not allowing the massive evasion of the essential elements of every legal cause of action that occurs when the filing of complaints is reduced to a meaningless exercise.

A footnote: Yes, we are aware that we have been quoted by Professor Effron in the portion of her article dealing with MDL Master Complaints.  See Effron Article, at 2056-60.  We’ve deliberately held that aside for a separate post – on the not-implausible basis that this one has gotten too darn long.