During its last term, the US Supreme Court issued an important ruling in a terrorism case, Ashcroft v. Iqbal, that ended a Pakistani man's civil suit against former Attorney General John Ashcroft and former FBI Director Robert Mueller because the plaintiff had not made sufficiently detailed allegations in his complaint.
The language of the opinion did not limit itself to civil terrorism suits, however, and essentially changed the rules for civil pleadings in federal court. Building on what the Court had already done in Bell Atlantic v. Twombly, Justice Kennedy wrote that Federal Rule of Civil Procedure 8, which sets out the rules for federal civil pleadings, required "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." As soon as the decision came down, defense attorneys began filing Rule
8 challenges in bids to have lawsuits dismissed at the pleading stage.
So far, they have enjoyed some notable successes with this strategy,
according to Tony Mauro of the National Law Journal:
A major lawsuit against the makers of Seroquel, an anti-psychotic drug,
was dismissed on Iqbal grounds in the Middle District of Florida in
July. Last month, a California federal judge, citing Iqbal, dismissed a
case challenging the government's no-fly list, brought by a Muslim
woman who claimed she was a victim of profiling. In a case at the 11th
U.S. Circuit Court of Appeals, also last month, an Alien Tort Claims
Act suit against Coca-Cola bottlers in Colombia was dismissed on Iqbal
was only a matter of time before plaintiffs' groups started fighting
back, though. Several plaintiffs' groups met in Washington D.C. last
Monday and came up with a two-pronged strategy to undermine the
application of the case to Rule 8 motions.
First, the groups
will appeal to Congress, where they might have a receptive audience.
Sen. Arlen Spector (D-PA) has already introduced a bill that would
rollback pleading standards to the pre-Twombly interpretation.
Hearings have already been scheduled for October.
groups also plan to seek changes to the Federal Rules, although that
audience might not be as friendly, since the Supreme Court manages the
process of altering the rules, and since Chief Justice John Roberts,
who sided with the majority in Iqbal, chooses the members of Judicial Conference committees.
Proponents of the new Iqbal standard argue that the stricter
requirements will weed out weak or frivolous suits at their inception
and prevent plaintiffs from imposing heavy discovery costs on
defendants as part of a "fishing expedition." Iqbal opponents
counter that the decision threatens access to the courts and provides
an unwarranted protection to corporate defendants.
Both sides have valid points, it seems to me; whichever side you choose
seems to depend on what type of client is paying your fees.