Why Defense Lawyers Are Lovin’ the Iqbal Decision

[WSJ_law_blog]

On its face, Ashcroft v. Iqbal was a case with national-security implications. The Supreme Court ruled 5-4 on Monday that a Pakistani Muslim who was arrested after the Sept. 11 attacks may not sue John Ashcroft, the former attorney general or Robert S. Mueller III, the current FBI director, for abuses he says he suffered in a Brooklyn detention center.

But defense lawyers are taking something different away from the ruling — that the Court essentially established heightened pleading standards under Rule 8 of the Federal Rules of Civil Procedure, which lays out the general rules for what the initial documents in a lawsuit — the “pleadings” — have to put forth.

Iqbal’s complaint stated the following: that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.”

But the majority, the four more conservative justices plus Justice Kennedy, ruled that such a pleading was too conclusory, and not specific enough. Stated the Court: “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

In so ruling, the Court effectively extended the ruling of a 2007 antitrust case, Bell Atlantic v. Twombly, to other types of cases. “There was some discussion, after Twombly, of whether that ruling applied to rulings outside of the antitrust context,” says Jane Willis, a partner at Ropes & Gray and the inspiration behind one of the card-counting blackjack-playing characters in the movie “21.” “This decision makes it clear that Twombly applies to all complaints in all subject matters.” In other words, says Willis, “you can’t provide conclusory statements without more factual support.”

Adds Scott Musoff, a litigation partner at Skadden, who also talked to the AmLaw Litigation Daily about the decision: “Before Twombly, all a pleading had to do was to put a defendant on notice as to what the lawsuit would try to prove. Twombly and Iqbal change that.”

Willis, however, says that any Iqbal-elation from the defense bar might be premature. For one thing, the ruling applies only to federal courts, not the states — which make their own rules of civil procedure and are free to accept or reject Supreme Court pronouncements on the federal rules.

Furthermore, she cautions, a district court will still have some latitude in determining when a statement is adequately fact-specific to stand up to a motion to dismiss. “That, a lot of times, is easier said than done.”