Noting that “out-of-control litigation prompted the Supreme Court in Twombly to adjust the threshold pleading requirements for unleashing the legal process,” legal bloggers Mark Herrmann and James Beck applaud that 2007 decision and the Iqbal ruling that followed and “made clear that the adjusted pleadings standard applied to all complaints, not just to the antitrust claims involved in Twombly.”
In an online debate with a critic of the two decisions, hosted at PENNumbra, Herrmann and Beck argue that Twombly and Iqbal are “proper exercises of judicial power. One of the Supreme Court’s jobs is to interpret the Federal Rules,” they assert. “It is a reasonable choice to emphasize less that a complaint should be ‘short’ and more that it must include a ‘showing that the pleader is entitled to relief.’”
Herrmann and Beck also contend that Twombly and Iqbal are “right on the law. The rules should require ‘plausible’ allegations,” they insist. “Why should implausible litigation be allowed? Likewise, claims should have to pass a ‘more than speculative’ test. Anything less simply invites expensive fishing expeditions.”
Seeing “nothing unreasonable about the pleading requirements that the Court articulated,” Herrmann and Beck recommend celebrating “a standard that permits only ‘plausible,’ non-‘speculative’ claims with a ‘reasonable expectation’ of success to inflict on defendants the enormous cost of discovery and the other collateral damages of litigation.”
Herrmann and Beck argue further that Twombly and Iqbal are “the right policy. All fair observers acknowledge the skyrocketing cost of discovery,” they affirm. “Some argue that the nature of the judicial process guarantees that judges cannot control discovery costs once litigation has commenced.” According to the two attorneys, “Every incentive exists for plaintiffs to abuse discovery because many defendants choose settlement when faced with its high cost. It is entirely proper,” they say, “to prevent plaintiffs who cannot state even ‘plausible’ claims from inflicting massive discovery costs on defendants -- and on society.”
Herrmann and Beck maintain that “courts have no legitimate basis for favoring plaintiffs when interpreting pleading standards. A just system does not pick sides in advance, but instead establishes neutral rules,” they contend, rejecting “the normative view that it is somehow ‘better’ to let unmeritorious cases proceed than to risk that meritorious cases will be dismissed. Either way represents error, and neither error is inherently better than the other.”
Herrmann and Beck have no desire to deny justice to the aggrieved. “Potentially meritorious claims by plaintiffs should not lightly be dismissed,” they affirm. “But implausible claims, unsupported by facts, should be screened out to avoid inflicting massive costs on innocent parties with essentially no procedural protection at all.”
Herrmann and Beck conclude that “Congress should endorse the recent decisions in Twombly and Iqbal; it should not undo them.”
