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Can anyone give me some assistance on what standard a party has to satisfy in their pleadings to survive a 12b6 motion after Twombly and Iqbal. All my hornbooks are too old and my casebook is terrible. Thanks - hope finals are treating everyone better than me
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It's about pleading facts that make the claim "plausible on its face," not merely possible. So you cannot just show a set of circumstances in which correlation could be responsible for a set of facts (e.g., telecom prices all being the same). You have to plead facts that show it's facially plausible that those prices are the same b/c of an unlawful action.
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And if appropriate you can make some arguments using the policies behind Twombly, i.e., when it is going to be an 'expensive' case then policy favors requiring greater specificity in pleading. And even moreso when much of the discovery is going to be 'one way', i.e., the party will be able to obtain lots of discoverable info from the opponent, but the opponent will not be able to discover nearly as much from the party. It's true that Iqbal made it seem like these concerns aren't as important, but there is always going to be a gray area of whether the pleading is specific enough, so the opponent can use policy arguments to say sway the judge a little in his direction.
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novaman3 wrote:It's still unknown what the standard is. Judges are supposed to use their "common sense" and "judicial experience" in determining when a claim is "plausible."
Ah! The traditional "make-it-up-as-you-go-and-hope-for-the-best test!"
I see now!
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