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Is Iqbal the New Twombly?

Remember when Twombly came out in late 2006 and it showed up in just about every motion to dismiss?

Twombly, Twombly, Twombly.

Everywhere you went, people were talking about "Twombly."

You had to pretend to know something about it at judicial functions, there were teleconferences on it, and associates billed incessantly to copy and paste the part of the brief that dealt with it over and over and over again.

It was the "economic loss rule" of 2007.

Now, it seems, everyone is talking about Iqbal:

?Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,? said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. ?In my view,? Justice Ginsburg said, ?the court?s majority messed up the federal rules? governing civil litigation.

Even Justice Souter, who wrote for the majority in Twombly, thought Iqbal went too far, what with expecting judges to use "common sense" and determining what's "plausible" -- hah!

Sheesh, they're federal judges, give them a break!

Indeed, just a few days ago Judge Conway of the Middle District dismissed a false marketing suit involving Seroquel, citing Iqbal.

I hate legal trends, and particularly trendy decisions or theories that are untested and which run amuck for a while before things get back to normal.

So now everything is going to be about Iqbal, at least for the near future, before somebody realizes that maybe we went to far and we can go back to normal pleading practices, you know, Rule 1, Rule 8, Rule 12 -- the oldies but goodies.

And so, kids, now you know why I hate flatbread.

Full post as published by South Florida Lawyers on July 23, 2009 (boomark / email).