Taming Twombly: An Update After Matrixx

I INTRODUCTION For better or worse, my approach to Twombly (1) and Iqbal (2) has been one of accommodation rather than battle, seeking, in the common law tradition, to assimilate these decisions into the body of law of which they are a part. I have suggested strategies for lawyers to use in response to these decisions. (3) I have also proposed a Rule amendment that I believe meets the primary concerns of both the plaintiff and defense bar. (4) For these efforts, I have been called an optimist (5)--a charge to which I plead guilty. I see little hope of these decisions being overruled. (6) Unlike some areas, including federalism, the First Amendment, and substantive due process, where justices have adhered to their dissenting views and refused to accept their losses as binding precedent, (7) no one on the Supreme Court seems inclined to refight Twombly and Iqbal. In the past term, both Justice Ginsburg and Justice Sotomayor have authored opinions for the Court that rely on the Twombly and Iqbal precedents. (8) With these Justices accommodating themselves to Twombly and Iqbal, overruling is nearly impossible to imagine. Nor have I seen anything suggesting that a Rule amendment repudiating them outright would have any traction, particularly with the Federal Judicial Center's report to the Judicial Conference Advisory Committee on Civil Rules unable to find any statistically significant increase in the rate at which motions to dismiss for failure to state a claim have been granted (except in cases challenging financial instruments). (9) And despite my friend Steve Burbank's valiant efforts, (10) I also think that the prospect of Congressional repudiation died with the 111th Congress, especially with the defeat of Senator Arlen Specter. As far as I can see, accommodation is the only game in town. My route to this accommodationist approach is worth explaining. My work on this issue began with a presentation at the Thirty-Second Annual Judicial Conference of the United States District Court for the District of New Jersey in March of 2008. An academic who treated that audience of district judges, magistrate judges, and practicing lawyers to an argument that a Supreme Court decision was wrong-headed and illegitimate would have been of scant assistance to them. Of course, criticizing judicial decisions is one important role of legal academics, and one in which I happily engage. (11) But as I saw it, and continue to see it, another role of legal academics is to help judges and lawyers understand and deal with the legal doctrine that confronts them. For that reason, I am proud rather than embarrassed to be a co-author of a leading practice treatise, (12) a genre of legal writing that is as accommodationist as one can imagine. Moreover, there has been no shortage of legal academics heaping criticism on the Court. There has been, however, a real shortage of scholarship that might help lawyers and judges to avoid the injustices that those critics feared. For similar reasons, I do not think that the audience at this conference, consisting primarily of plaintiff's lawyers, would find much value (apart perhaps from the emotional inspiration akin to that from a campaign rally) in hearing yet another critique of Twombly and Iqbal. Instead, I think the most useful contribution I can make is to provide a bit of a status report on the how efforts to tame Twombly and Iqbal are faring. My hope is to convince you both to try my strategies and to support my proposal--or at least to tell me why not. II WHAT IS CONCLUSORY? WHAT IS PLAUSIBLE? The basic framework for evaluating a complaint that emerges from these decisions is as follows: A court distinguishes between factual allegations and conclusory allegations. It assumes the truth of the factual allegations, but not the conclusory allegations. Finally, it assesses, using common sense and judicial experience, whether the claim is plausible. …