[Cross-posted at Forbes.com’s “On the Docket”]

Twice in the past three years, the Supreme Court has thrown out lawsuits on the grounds that the initial complaint filed by the plaintiffs did not allege enough facts to suggest that their claims for relief were “plausible.”  The plaintiffs’ bar professes to be outraged by those decisions, alleging that the Court has significantly raised the bar for getting a complaint into federal court.  Legislation to overturn the two decisions is advancing in both houses of Congress.  Typical of the criticisms is a report recently issued by the Center for Progressive Reform: “Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants,” which alleges that the Supreme Court’s supposedly “heightened” pleading standards make it “nearly impossible” for many deserving plaintiffs to have their claims heard.

The criticism of the two decisions — Twombly in 2007 and Iqbal in 2009 — is based largely on misstatements regarding the Court’s holdings.  The Court repeatedly emphasized that it was not adopting a heightened pleading standard or overturning any precedents.  Rather, it merely required that the factual allegations contained in the plaintiff’s complaint (that is, his initial court filing) be sufficiently specific to raise the right to relief “above the speculative level.”  The Court rightly concluded that if a plaintiff cannot allege enough facts to make it “plausible” that he might ultimately prevail in the lawsuit, the defendant should not be required to bear the often substantial cost of defending the lawsuit through the entire pre-trial process.

For the past 75 years, Rule 8(a)(2) of the Federal Rules of Civil Procedure has governed whether a plaintiff’s initial complaint is sufficient to allow him to proceed with his lawsuit.  The rule requires the plaintiff to set forth a “short and plain statement” of his claim, “showing that [he] is entitled to relief.” The plaintiff need not attach any documentary evidence supporting his allegations.  The Court emphasized in Twombly, however, that a plaintiff has not made a “showing” that he is entitled to relief unless his factual allegations possess “enough heft” to render it “plausible” that he is entitled to the relief he seeks, rather than merely conceivable.  Twombly dismissed claims that telecommunications companies had conspired to restrain trade (by agreeing not to compete with one another) in the absence of any factual allegations making it plausible that any such conspiracy existed.  Iqbal dismissed a lawsuit filed by a man detained in connection with the 9/11 investigation; he sought to recover money damages against the U.S. Attorney General and the Director of the FBI based on allegations that they discriminated against him (by subjecting him to unduly harsh conditions of confinement) because of his Middle Eastern origin.  The Court found the claim implausible in the absence of factual allegations suggesting that the defendants were even aware of the detainee’s existence.

The Center for Progressive Reform (CPR) asserts that the Twombly/Iqbal “plausibility” standard represents a marked departure from previous decisions interpreting Rule 8.  But in articulating the plausibility requirement, the Court strongly reaffirmed all of its previous decisions interpreting that rule.  For example, the Court repeatedly cited its 1983 Associated General Contractors decision, which stated that “a district court must retain the power to insist upon some specificity in pleading” before a plaintiff is permitted to engage in discovery of the defendant’s files.  CPR asserts that under the Court’s rulings, “plaintiffs must in effect prove their case before they have even had the chance to obtain evidence from the defendant through the discovery process.”  To the contrary, the Court made clear that a plaintiff need not prove anything in his initial pleading; he need only allege sufficient facts to render his claim plausible.

CPR and other critics of Twombly note that the Court (by a 7-2 majority) disapproved of a statement that appeared in a 1957 Court decision, Conley v. Gibson.  But federal courts had long understood that statement to be mere dictum (that is, a statement that played no essential part in the Court’s decision) and was not to be followed literally.  In discussing Rule 8, Conley said that “[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.”  If accepted literally, the Conley statement would prevent the dismissal of any civil complaint no matter how frivolous, because it is always possible that a plaintiff will later come up with evidence to support even the most outlandish claims.  But the Court explained in Twombly that the Conley statement had never been accepted literally in subsequent court decisions, and that the actual result reached in Conley (that the plaintiff had alleged sufficient facts to survive a Rule 8 motion to dismiss) continues to be fully accepted.

CPR argues Congress should pass legislation that would overturn Twombly and Iqbal and “re-establish” the pleading standard set forth in the now-abandoned Conley statement.  But such legislation would not “re-establish” any pleading standard that has ever existed in the federal courts.  Rather, it would effectively eliminate the existing Rule 8 requirement that the plaintiff make a “showing” that he is entitled to relief and — because it is virtually impossible for a defendant to demonstrate “beyond doubt” that the plaintiff at a subsequent trial could not possibly prove a “set of facts that would entitle him to relief” — would make it virtually impossible for a defendant to win pre-discovery dismissal of even the most frivolous complaints.

Nor have CPR and others been able to identify deserving plaintiffs who will be denied their day in court by the Twombly/Iqbal plausibility standard.  The Court went out of its way to re-affirm all prior precedents, which make clear that a plaintiff’s Rule 8 burden is quite modest.  Among those precedents is Swierkiewicz v. Sorema, a 2002 decision holding that a plaintiff alleging that he was fired for racially discriminatory reasons need not include in his complaint any factual allegations supporting the discrimination claim.  The Court held that even though at trial the plaintiff would need to present circumstantial evidence to support the discrimination claim, it was sufficient for Rule 8 purposes for the plaintiff to alleged that he had been employed by the defendant and that he believed that he was fired for racially discriminatory reasons.  The Court explained that the complaint adequately informed the defendant of the claim being made and that racial discrimination was at least a plausible explanation of the plaintiff’s firing.

Swierkiewicz and similar cases should put to rest CPR’s fears that a plausibility pleading standard will prevent deserving plaintiffs from getting through the courthouse door and having the opportunity, through the pre-trial discovery process, to obtain the evidence necessary to prove their cases at trial.  But Twombly and Iqbal are clear statements that the federal courts will not tolerate fishing expeditions by the plaintiffs’ bar and will insist that, before a lawsuit reaches the discovery stage, the plaintiff must make sufficient factual allegations to demonstrate that his complaint is plausible.  Given the enormous settlement pressures imposed on defendants once they are required to begin incurring the substantial costs of pre-trial discovery, plaintiffs can hardly complain when they are asked at the outset to show that their claims are not frivolous.