Does anyone have good notes on Conley/Twombly/Iqbal...

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Does anyone have good notes on Conley/Twombly/Iqbal...

Postby SKlei » Sat Feb 11, 2012 9:49 pm

I feel my professor went over these cases very quickly and I don't think I grasped all that I needed to from these cases. Does anyone have good notes or care to explain the important parts of these cases? I would appreciate it, thanks.


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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby jarofsoup » Sat Feb 11, 2012 9:53 pm

There ain't much to this.

Conley old rule.

Twombly New Rule

Twombly not just Anti-trust but all civil actions.

That is about as much as I know this was last semester so I have suppressed it completely.


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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby portaprokoss » Sat Feb 11, 2012 10:39 pm


Common Law through Code Era
....Give notice of our contentions
....Reveal the facts (now discovery does this)
....Formulate the issues (now pretrial conference and SJ, inter alia, does this)
....Plead facts that equaled a cause of action
....Too much technicality
....Didn’t deal with merits; we want cases decided on the merits, not on technicality
....Trivial distinctions between fact, conclusions, and evidence

Notice Pleading - The Federal Rules (1938)
....Give notice of our contentions
....Good basis for determining if the pleader had failed to state a complaint upon which relief can be granted (12(b)(6))
....Must do three things
........Allege subject matter jurisdiction 8(a)(1)
........Demand for the relief sought; may plead in the alternative; don’t need to give dollar figure 8(a)(3)
........Provide a short and plain statement showing that pleader is entitled to relief Rule 8(a)(2)
............Failure to state a claim upon which relief can be granted – Rule 12(b)(6)
................P will almost always be given a chance to amend before dismissal
............MENTION THIS: Court almost never grants, Conley said can’t dismiss unless under no set of facts could judge conceive of a right to relief.
............The forms reinforce this conception (Form 11, negligence, is paper thin…literally)
............Unless there is a rule or a federal statute that requires pleading with specificity, the court cannot impose that requirement on you. Illustrated by Leatherman & Swierkiewicz.

Tw-Iqbal – Federal Doctrine under Rule 8
....2007 – Twombly
....2009 – Ashcroft v. Iqbal
....Twombly sets the pattern and Iqbal carries it out, extends it, formulates it, and makes it clear that TwIqbal extends to all federal civil actions.
....Conley is now out.
....These cases say that we need more. The pleader is obliged to particularize, obliged to show that his claim for relief is plausible.
........Defensive pleading?—no court decision yet, as to whether these extend to the defensive pleading; but it’s likely; what’s good for the goose is good for the gander
..What is plausibility?
........More than speculation, more than possibility
............But it can’t mean probability, that’s what the rest of the case is about, if you had to do that, then everything would be decided on the pleadings, kiss the jury goodbye.
........Justice Kennedy said that judge is supposed to use his judicial experience and common sense
............But what is that? Is that meaningful? That’s not in the pleading; 12(b)(6) was meant to test the pleading and now we’re outside the pleading.
........They say the court is supposed to compare the grievance with an innocent explanation of the conduct by asking “which explanation is more likely?”
............Well, that sounds like a proof standard to me; but that can’t be what they mean.
........Perhaps the new regime is designed to make you tell a story, and there should be enough detail in the pleading, so that the judge can say it hangs together, it’s plausible.
............But perhaps courts will say more detail than this is required.
............We just don’t know.
....Bad decisions; reflect a defense orientation, a conservative orientation, a business orientation, a government orientation, the likes of which we didn’t see until the 1980s.
....Have to show plausibility, it’s a notice-plus system; the court said it is not going back to fact pleading, but that it’s notice pleading with more detail; but in the hands of some federal judges, this may begin to look like fact pleading all over again.

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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby weber35 » Sun Feb 12, 2012 12:50 am

Find Gensler's commentary to the FRCP on Westlaw. He does a good job of explaining the current state of pleading standards and how they differ from Conley.


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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby Geist13 » Sun Feb 12, 2012 1:33 am

Twombly/Iqbal --> Court establishes a 2 step process for testing the sufficiency of a complaint. Step 1 --> strike all statements that are legal conclusions. Legal conclusions which are not supported by sufficient factual claims do not warrant a presumption of truth. The problem, of course, is that there is no easy way to tell what is a "conclusion" as opposed to a "fact." (for example, "defendant slapped plaintiff accross the face," can be called a conclusion or a fact. "Defendant INTENTIONALLY slapped plaintiff across the face" may be closer to a legal conclusion because there is nothing specific supporting the intentionality of the act. But its still not clearly a conclusion rather than a fact.) Step 2 --> presuming the complaints FACTUAL content to be true, apply "judicial experience and common sense" to determine whether the complaint is plausible on its face. Importantly, in both Twombly and Iqbal, the court dismissed the complaint, in part, because there were more likely or obvious alternative explanations for the defendant's conduct, than the plaintiffs allegations. Also the court places heavy emphasis on rising discovery costs and the inability of courts to adequately manage discovery abuse. This is a new policy position for pleading. In fact, the notion that pleading serves to protect against discovery abuse is difficult to square with dicta in another major pleading case, Swierkiewicz v. Sorema, which stated that the pleading standard "relies on liberal discovery rules." However it is very unlikely that you read that case, so just ignore that.

Conley --> In Twombly, the court says Conley is still good law. The only part of the case that the court "retired" was the "negative gloss" that lower courts have since placed on Conley's "no set of facts." According to the Twombly court, this phrase in Conley only meant that once a complaint was legally sufficient, there were no requirement for further facts to be plead; if a complaint was legally sufficient that was the end of the question. The court argued, however, that the phrase has since been misread to suggest that no facts are ever required. It is only this "negative" gloss that no longer holds (and according to the court it never held because it was based on a misreading of Conley). All you need to know is that according to the Twombly/Iqbal court, Conley is still good law. However, everyone will be citing Twombly and Iqbal as the standard for 12(b)(6) motions going forward.

A good way to think about TwIqbal and what it did to pleading rules is to compare the courts test with Form 11 in the back of the Federal Rules. This form sets out a model complaint for simple negligence. Would such a complaint satisfy TwIqbal? Just food for thought.


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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby Void » Mon Feb 13, 2012 7:55 pm

Twombly: The complaint in an antitrust case requires more than conclusions.

Iqbal: This rule applies to other kinds of cases too.
Last edited by Void on Wed Mar 14, 2012 1:26 pm, edited 1 time in total.

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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby AreJay711 » Mon Feb 13, 2012 7:58 pm

That plus maybe the amount of specificity needed in the pleadings depends on the type of action it is, how often the court sees it / how exotic it is, and the cost involved in litigation.


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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby sillyboots » Tue Feb 14, 2012 12:53 am

Straight from my outline. FWIW I got an A in civ pro and IIRC I got a full/perfect score on a twombly pleading standard question we had on the final.

Twombly Pleading Standard:
• The Twombly pleading standard is prevailing and the procedure is to: 1) disregard any conclusions in the pleading, and 2) ask if the facts plausibly suggest an entitlement to relief. (in order to help asses plausibility, ask: what was the likely explanation? Are there more innocuous and likely explanations?)
- Twombly standard has been criticized as a bad mechanism (gives judges too much discretion and is difficult to perform) for achieving a
worthwhile policy (preventing frivolous claims).
- Through Iqbal we know that the Twombly standard is to apply to every pleading made in federal court. However, both Iqbal and Twombly
involved high stakes (i.e. affecting high level officials during a state of relative emergency in Iqbal or costly discovery in Twombly). Likely, a
court will vary in how strictly it will apply the Twombly standard depending on the stakes in the case, and so in a garden variety case the courts
might employ a standard more similar to what was clasically used (that is, to simply ask whether P could recover if we assumed all of the
allegations were true) .
ꜚ It is thought that employment discrimination cases might especially have a more lax standard, though it is not yet sure.

In case you didn't pick it up from class, it's worth noting that the twombly pleading standard can be difficult to apply, because it's not always easy to distinguish what's a "conclusion". For example, is "The Plaintiff is a resident of Ohio" a conclusion that should be stricken? What about "the wife of the defendant"? Recognizing this difficulty, discussing it, and pointing out specific examples of it in your hypo can help rack up some extra points.

As far as the background on the pleading standard, just know that the pleading standard used to be really straight forward. If you assumed everything that the plaintiff alleged in her complaint was true, and it would entitle her to recovery, then her pleading was sufficient. Unfortunately, this low bar sometimes allowed frivolous lawsuits because it was very generous to plaintiffs. To dissuade these frivolous lawsuits (at least, we assume that's the reason), the Court ended up adopting a higher pleading standard in Twombly (see the procedure above). Because the Twombly is such a high standard, though, and it was born out of Twombly where the defendant was facing potentially astronomical discovery expenses if the case went forward, and was affirmed in Iqbal where high level officials would've been tied up in court during a time of national emergency if the complaint went forward, most courts have come to apply it more or less strictly depending on the stakes of the case. Theoretically, it's a standard that is supposed to be applied to all complaints (at least that's what Iqbal says) but in practice, again, most courts won't apply it strictly unless the stakes are high.

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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby istara » Tue Feb 14, 2012 1:06 am

Super lazy, probably not helpful, cut and paste from my Civ Pro outline (disclaimer: I got an A in the class, but that doesn't mean my outline is helpful. I never looked at it.. and the forum screws up my awesome formatting and color scheme). I have some other documents I wrote up on the subject somewhere if you want something more comprehensive. But I'm currently too lazy to dig them up.

Conley v. Gibson (1957): Rule 8 No Set of Facts Threshold
1. Must contain a viable claim
a. Legally viable: legal theory, if proven, would render the plaintiff entitled to relief
b. Factually viable: can you “imagine” a set of facts that could exists that would create a viable case
2. “Fair Notice”: enough for factual notice (isolate the incident in the defendant’s memory)

Leatherman v. Tarrant County (1993): § 1983 case with killed dogs and beat up old man
Rule: The only way to change the pleading standard is the amend the FRCP (by class we voted 50/50 viability for this claim)
This was essentially a request to the rules committee to amend the rules

Swierkiewicz v. Sorema (2002): Employment discrimination
Rule: Just fair notice as to what the case includes

Rule 9(b): The only heightened pleading standard is for fraud (and ‘mistake’ but no one knows what that is)
POLICY: how do you get info if you can’t discover? Freedom of information act? Other expensive means?

The New Pleading Regime
Between Conley/Leatherman and Twombly:
1. Inferences in favor of the plaintiff are now a balance between inferences for the plaintiff and inferences for the defendant
2. Standard goes from possible to plausible (doesn’t have to be probable)
3. Rule to Standard with lots of warm fuzzy judicial discretion

Bell Atlantic Corp. v. Twombly (2006): Class action against phone companies (no way they would let it through)
Rule: “Formulaic recitation of the elements is not enough” the complaint must be “plausible” (more than possible)
Deviation From the Baseline: Complaint must allege something MORE than what’s normal, something plausible

Ashcroft v. Iqbal (2008): Terrorist Discrimination; Needed to solidify Twombly (unworkable overwrite standard not met)
Rule: Iqbal 2 Step
1. Court doesn’t have to accept conclusory allegations (remove them first)
2. Remaining facts must create a plausible claim for relief based on judicial experience and common sense
This changes form 11 and just about everything else pleading-wise

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Re: Does anyone have good notes on Conley/Twombly/Iqbal...

Postby Veyron » Tue Feb 14, 2012 1:07 am

Twickball stands for the proposition that no one is quite sure anymore what sort of pleading is required to survive a MSJ. As the complexity of the case increases, so does the uncertainty.

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