We recently took an ivory tower tour to see what academics were saying about Twombly/Iqbal. Not surprisingly, we found more disapproval than approval, and more complexity than clarity. One law review article, Effron, “The Plaintiff Neutrality Principle: Pleading Complex Litigation in the Era of Twombly and Iqbal,” 51 Wm & Mary L. Rev. 1997 (2010) (hereinafter “Effron“), quotes us on the applicability of Twombly/Iqbal to MDL master complaints.
First, thanks for noticing, Professor. We’re glad to see folks in the academy pay some attention to what actual practitioners think about the prominent legal issues of the day. Second, while we find parts of the article to be closely-reasoned and creative, we think the idea of narrowing Twombly/Iqbal to make the plausibility requirement more palatable is like saying half a loaf is better than none. Right now, we still think we’re entitled to the whole loaf.
Let’s start with the title of the article, focusing on that “Neutrality” word. Our business is advocacy. From where we stand, there isn’t much neutrality in sight. We argue for our client’s positions and cite to “neutral” principles when they are helpful and convenient. Plaintiff lawyers do likewise. Why? Courts necessarily say they like neutrality. When we were in law school in the Pleistocene era (well before the “Era of Twombly and Iqbal“), we were compelled to read a lecture by Columbia law professor Herbert Wechsler titled “Toward Neutral Principles of Constitutional Law.” It’s been a long time since we thought about that lecture.
Neutrality is a tool that takes one only so far. Kant and Rawls built entire philosophies around the concept of neutrality. What’s the categorical imperative but a mental exercise where you pretend you might be any random member of society before deciding how you’d like a certain set of arrangements? But it’s a strange, counterfactual mind-game, and it seems oblivious to huge chunks of human experience. Rawls’s Theory of Justice pretends people aren’t the passionate, risk-taking bundles of neurons they really are. The only time we’ve found the neutrality principle to work is when we’ve told our kids that one cuts the pie then the other chooses. We’ve found more wisdom in the philosophy of Thomas Hobbes, not just because “solitary, poor, nasty, brutish, and short” perfectly described our junior prom date, but because he said that “Reason scouts and spies for the passions.”
We’re not neutral when we litigate cases. Plaintiff lawyers aren’t neutral. Sad to say, but most judges don’t come across as neutral. If they don’t favor a side, they often seem to favor docket control, or passing frail cases along to juries so as to avoid tough decisions. Maybe gatekeeping should be neutral, but gatekeeping is hard work.
All of which is to say that Professor Effron’s “plaintiff neutrality principle” strikes us as an unlikely way to reconcile hostile plaintiffs and hostile courts to Twombly/Iqbal. If we understand it correctly — and the fog of academia renders that unlikely — Effron thinks that Twombly/Iqbal should be relaxed for allegations that plaintiffs make about their own conduct: “[F]actual allegations of a plaintiff’s own conduct, or condition for which there are both lawful and unlawful explanations, are sufficient to state a claim.” Effron at 2047. The “plaintiff neutrality principle” ends up being a non sequitur for the most part when it comes to mass tort litigation. Complaints in our neighborhood tend to fall down on the job with respect to pleading conduct of defendants, prescribing doctors, and regulators. For example:

• What is the defect?
•  What should the warning have said?
• How were the plaintiff’s doctors affected by anything the defendant said, did, or did not say or do?

As for plaintiff’s own conduct, we don’t see why it’s asking too much for a plaintiff to say when she used the product, and how she was injured. Given that such information is uniquely available to plaintiff, Effron’s proposal to relax the standards for pleading such facts is a little hard to understand. Forget about “plausibility” — we usually don’t get any facts at all on these issues. We get little, formulaic sweet nothings. That is especially true when plaintiffs’ counsel are filing thousands of cases where they seem remarkably unaware of the facts relating to their own clients. More on that later.
So how does our cheery little blog make a cameo appearance in this law review article? Effron addresses how the “plaintiff neutrality principle” works with group allegations, which can require a plaintiff to speculate as to facts regarding other plaintiffs. That happens in class action complaints, as well as in — ta da! — MDL master complaints. Effron quotes our August 2009 post on the Nuvaring MDL where we wondered whether MDL master complaints might make it more difficult to test plaintiff-specific pleadings, such as whether there are any facts “affirmatively indicating that the defendant’s promotion affected his or her prescriber.” Effron at 2059. Then Effron quotes the Nuvaring judge’s ruling that inspired our post, where the judge denied a motion to dismiss the master complaint because “the master consolidated complaint in this action was simply meant to be an administrative tool to place in one document all of the claims at issue in this litigation.” Id., quoting In re Nuvaring Prods. Liab. Litig., No. 4:08MD1964 RWS, 2009 WL 2425391, at *2 (E.D. Mo. Aug. 6, 2009). Perhaps you will recall that rather than rule on the motion to dismiss the master complaint, the Nuvaring judge struck the complaint and asked plaintiff to file individual complaints. Not surprisingly, those individual complaints were broad, formulaic documents bereft of key factual allegations. And yet the judge seemed surprised and disappointed when the defendant moved to dismiss those complaints, and he proceeded to deny those motions rather forcefully.
It was starting to smell like at least one judge believed that Twombly and Iqbal are banned from MDL cases. Indeed, the Nuvaring plaintiff lawyers argued exactly that in an article praising the result and attacking some of our blog posts on the case. We registered our disagreement in a cogent, balanced, tasteful little ditty.
Where does Professor Effron stand in this high-minded debate? Well, we’re not so sure. We don’t speak law review-ese, at least not fluently, so we have trouble translating the following: “The Nuvaring judge’s conclusion that a MDL master complaint is not an appropriate target for a motion to dismiss is a rather blunt tool for protecting the integrity of aggregated complaints at the outset of litigation, especially because it gives rise to the not unreasonable charge that the judge has carved out MDL complaints as an exception to the Iqbal standard for pleading.” Effron at 2060. Let’s re-read that. Okay, we’d like to think Effron mostly agrees with us. We like the “blunt tool” point. And we enjoy being called “not unreasonable.” That’s high praise from an academic. But excuse us if we choke on the phrase “integrity of aggregated claimants.” Where’s the “integrity” of a cobbled-together inventory of cases for which the lawyers have trouble finding facts or, for that matter, their own plaintiffs?
Here is Effron’s proposed alternative: “[J]udges should use the plaintiff and group plaintiff neutrality principles to evaluate plaintiff directed allegations in a complaint and dismiss a master complaint for insufficient factual allegations in only two situations: (1) when the allegations of defendant or third-party conduct are implausible according to the Twombly and Iqbal standard, or (2) when the allegations of plaintiff conduct or condition are facially implausible.” Id.
Let’s take that apart. As for number 1, if Effron is including the Twombly/Iqbal ban on formulaic, conclusory allegations regarding “defendant or third-party conduct,” then the Nuvaring master complaint should have been dismissed. As for number 2, we still don’t see why the form of a litigation (in this case, an MDL) should relieve plaintiffs of Supreme Court pleading requirements. The “facially implausible” exception suggested by Effron applies when publicly available statistics make the allegations seem unlikely. Effron cites the “egregious illustration” of silicosis litigation, where there were more complaints of the disease than seemed medically possible. Id. at 2061-62. Great. Does that mean that aside from out-and-out fraud, plaintiff conduct/condition allegations in an MDL master complaint cannot be tested under Twombly/Iqbal?
Here is how Effron wraps up the analysis of Nuvaring: “For example, after the Nuvaring judge declined to allow the defendants to bring a Rule 12(b)(6) motion against the master complaint, the defendants filed individual motions to dismiss each and every claimant. To the extent that these were directed at allegations about defendant conduct that were common to all of the complaints, these motions defeat some of the efficiencies that MDLs are supposed to bring.” Id. at 2068. Wait a minute. “[T]hese motions defeat” the “efficiencies”? That’s a funny way of saying it. Wasn’t it the judge’s refusal to consider the dismissal motion that defeated the efficiencies?
Effron goes on: “Rather than attacking the institution of the master complaint, the judge should determine if any of the common allegations are about plaintiff conduct or condition, and if so, whether these should be subjected to the group plaintiff neutrality principle or even treated as facially implausible based on publicly available data.” Id. Like that’s really going to happen. Just a reminder: the “group plaintiff neutrality principle” exists nowhere in Twombly/Iqbal. Rather, it is a construct conjured up to cure a problem that wouldn’t be a problem if courts simply followed Supreme Court precedent.
Plaintiffs aren’t neutral and complaints aren’t neutral. They should possess facts and comply with Twombly/Iqbal — not Kant, Rawls, or neutral principles that are anything but neutral in practice.