Legal News

Sick of Iqbal Part III, A Conservative Group Joins the Fight

By Ashby Jones

Every defense lawyer loves the Iqbal decision, right? It’s the Supreme Court ruling from last May that said plaintiffs, in order to withstand a motion to dismiss, need to file pretty well-substantiated allegations in their complaints. The court, in a 5-4 opinion written by Justice Anthony Kennedy, wrote:

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.

From everything we’ve read (click here, here and here), the ruling has been a boon to the defense bar, and a burden to the plaintiffs’ bar. But is it in some ways making life harder for defense lawyers?

We’re prompted to ask the question by this story in the BLT blog, which reports that a conservative group, the Allied Defense Fund, has sent a letter to Democratic lawmakers in Congress supporting tweaks to the Federal Rules of Civil Procedure in light of Iqbal. The move, according to the story, “aligns the Christian litigation group with some unlikely allies,” like trial lawyers, who say that the Iqbal decision has made it harder to bring winning lawsuits.

That’s interesting enough. But we were equally interested in the rationale behind the Allied Defense Group’s move. It wrote that the “vague, malleable rules” established by Iqbal “are bad news when it comes to orderly, reasoned processes.” In other words, the new standard has complicated the early stages of litigation.

Wrote Gary McCaleb, a lawyer with the Allied Defense Fund:

Plaintiffs' lawyers are now motivated to increase the complexity, length, and detail of their complaints, anticipating that their case will be one that needs 'amplification' to become ‘plausible.’ In turn, defense lawyers now have to respond to these expansive ‘toss in the kitchen sink’ pleadings, and are motivated to litigate motions to dismiss that they never would have invested in under the clear [prior] standard.

The emphasis here is ours. Of course, given Iqbal, it’s not surprising that defense lawyers are fighting more complaints at the pleading stage. But our question is this: Is Iqbal to blame for more motions to dismiss? If that’s true, do defense lawyers feel like those motions are time wasted, given the inevitable fact that many complaints will survive dismissal?

Just thoughts here. And if you have any to share, we’d love to hear ‘em, of course.

Full post as published by Law Blog - WSJ.com on March 16, 2010 (boomark / email).