CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
Imagine the following situation: a company has fired a Black woman from her
job purely because of her race and gender. Her subsequent employment-discrimina-
tion complaint alleges that there is an internal company memorandum documenting
an interview where her supervisor used derogatory language to describe her and
other Black women and statistical evidence that over a twenty-year period, he had
fired or refused to promote every Black woman who ever worked for him. Further,
imagine the complaint acknowledges that its allegation of the memorandum came
from the Equal Employment Opportunity Commission’s (EEOC) investigation and
subsequent complaint the agency filed against the company for discrimination
against minority employees. Finally, assume that when the parties settled, the judge
said she found the evidence “highly credible” and that she was “profoundly trou-
bled” by the company’s behavior. Most of us would find the Black woman’s com-
plaint of employment discrimination plausible. Many courts would find that the
complaint’s plausibility came from the wrong source, remove the plausible allega-
tions from the complaint, and then dismiss the complaint as implausible.
The doctrine of stolen plausibility
explains this surprising result. This doctrine
holds that it is impermissible for plaintiffs to rely on third-party litigation materials
to prove that their claims are plausible. Its effect in many cases is dismissal of com-
plaints that either are or might be meritorious. The doctrine is built upon two prem-
ises. The first premise is the rise of stringent pleading standards requiring plaintiffs
to draft detailed complaints that judges find plausible to survive a motion to dismiss.
The second premise is many courts’ longstanding tendency to police the source
material plaintiffs can use in their complaints. Specifically, they have often pre-
vented plaintiffs from relying on, either in whole or in part, materials drafted by
third parties—often in previous lawsuits—that are relevant to their cases.
Plaintiffs have attempted to use previous complaints,
and government investigations.
The goal is to use their
1. You will not find the term “stolen plausibility” in judicial opinions. I have coined the term to
describe a phenomenon that has occurred frequently. And it is a phenomenon that occurs in a variety of
cases, from employment discrimination to securities fraud to antitrust.
2. These materials encompass, at a minimum, complaints, letters from government or foreign
regulatory agencies, and settlement agreements.
3. See, e.g., id. at 1005–06.
4. See, e.g., Geinko v. Padda, No. 00 C 5070, 2002 WL 276236, at *5–6 (N.D. Ill. Feb. 27, 2002)
(holding a Rule 11 violation where an amended complaint attached and relied on two other complaints,
and dismissing the amended complaint as a sanction).
5. See, e.g., Chapman v. Duke Energy Carolinas, LLC, No. 3:09–cv–37RJC, 2009 WL 1652463, at
*2–3 (W.D.N.C. June 11, 2009) (granting a motion to strike portions of an EEOC determination letter).
6. See, e.g., Waterford Twp. Police & Fire Ret. Sys. v. Smithtown Bancorp., Inc., No. 10–CV–864
(SLT) (RER), 2014 WL 3569338, at *4 (E.D.N.Y. July 18, 2014) (striking references to a consent order
the defendant entered into with the FDIC prior to the lawsuit).
7. See generally Richard Casey & Jared Fields, Piggybacking Through the Pleading Standards:
Reliance on Third-Party Investigative Materials to Satisfy Particularity Requirements in Securities
2021] STOLEN PLAUSIBILITY 293