Living With Twombly
| Publication year | 2009 |
| Pages | 23 |
| Citation | Vol. 22 No. 2 Pg. 23 |
Vol. 22, No. 2, 23. Living With Twombly
Vol. 22, No. 2
March/April 2009
On May 21, 2007, the United States Supreme Court handed down Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). Just short of two years have passed since Twombly was decided, time enough to assess its impact on pleading and motion practice in the federal courts. We can now answer the question of whether Twombly was an antitrust pleading case or a federal civil pleading case.
The issue before the Supreme Court in Twombly was how much detail must a plaintiff allege in order to state a claim for conspiracy under Section 1 of the Sherman Act? May a plaintiff rest with allegations of parallel conduct by several defendants, or is a plaintiff required to allege something more in order to state a claim for conspiracy? In Twombly, the plaintiffs, based on a history of parallel conduct, had alleged a conspiracy among telecommunications companies not to compete against one another and to block entry of new local service providers.
The district court dismissed the complaint, finding that merely alleging parallel conduct was insufficient to state a claim for conspiracy. The second circuit reversed holding that allegations of parallel conduct standing alone were sufficient to state a claim and provided adequate notice of the nature of the conspiracy alleged as well as the basis for the claim.
In a seven to two decision, the Supreme Court reversed. Justice Souter's opinion for the majority held that "stating a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made." Id. at 1965. Specifically, "[a]n allegation of parallel [business] conduct. . .without some further factual enhancement. . .stops short of the line between possibility and plausibility." Id. at 1966. In reviewing the complaint before it, the Court found "nothing" that provided a "plausible suggestion of conspiracy," id. at 1971, where each of the defendants had a strong economic incentive to resist competition from new entrants and where a "natural explanation for the noncompetition alleged is that the former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same thing," id. at 1972. In the Court's view, "asking for plausible grounds to infer an agreement," id. at 1965, does not require factual allegations which make recovery probable, but does require "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of an illegal agreement." Id. (alteration in original).
In revisiting the pleading standard, the Court expressly disapproved of the language and standard set out in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957). Under Conley, dismissal under Rule 12 was appropriate only when it appears beyond doubt that the plaintiff could not prove any set of facts entitling it to relief. In Twombly, the Supreme Court characterized the "no set of facts," Twombly, 127 S.Ct. at 1969, test as "best forgotten as an incomplete, negative gloss on an accepted pleading standard," id.
Initial reactions to Twombly were quite varied. The predominant reaction was that Twombly would mark a significant reduction in antitrust litigation, and that it was a decision limited to the antitrust context. Less common, but still not at all uncommon, were suggestions that the holding would not be limited to antitrust actions, but would and should be applied to all federal civil cases.
The suggestion that Twombly was...
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