A minor procedural opinion released today by the Supreme Court is being treated a mere dismissal of a Milberg Weiss case alleging antitrust conspiracy, but it will have much larger implications.
Last year, Richard Epstein argued in a paper for AEI-Brookings that Federal Rule of Civil Procedure 8 was poorly situated to resolve motions to dismiss antitrust complaints. The Supreme Court appears to agree in today's 7-2 Bell Atlantic v. Twombly decision (even citing to the Epstein paper), and, by repudiating Conley v. Gibson's "no set of facts" standard, appears to reintroduce some element of fact-pleading back into the complaint procedure, thus making it easier to dismiss meritless complaints at the pleading stage. As discovery has gotten more and more expensive, this is an efficient rebalancing of the risks of false positives versus false negatives, but one would prefer the Supreme Court take action to modify Rule 8 rather than create a judicial overlay on the text of the rule. It is still a welcome change, and reduces the ability of plaintiffs' attorneys to bring extortionate complaints to be settled solely for nuisance value. Earlier discussion: Nov. 27.