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House bill will overturn Iqbal, restore previous pleading standards

In his opening statement Tuesday at a House Judiciary subcommittee hearing, "Access to Justice Denied - Ashcroft v. Iqbal," Chairman Jerrold Nadler (D-NY) said he would soon introduce legislation to restore the pleadings standards in federal civil cases to those prior to the Supreme Court's decisions in Iqbal and Bell Atlantic Corp. v. Twombly. The legislation will be the House version of Sen. Arlen Specter's S. 1504.

From Nadler's release and opening statement:

This is another wholly invented new rule, overturning 50 years of precedent, designed to close the courthouse doors. This combines with tightened standing rules, and cramped readings of existing remedies, to implement this conservative Court's agenda to deny access to the courts to people victimized by corporate or government misconduct. This is judicial activism at its worst - judicial usurpation of the procedures set forth for amendment the Federal Rules of Civil Procedure.

Ranking Member Jim Sensenbrenner (R-WI) disagreed, saying the Supreme Court merely reiterated longstanding pleading principles applied by lower courts since the 1950s. He added: "If the Iqbal decision is overridden by statute, lawyers would of course save money because their complaints would simply have to list the names of the people sued with no supporting facts. But it would be immensely costly to the cause of justice, the innocent, and to our national security."

From the witness testimony, we highlight the statement of former Assistant U.S. Attorney General Gregory G. Katsas, returning to Jones Day as a partner in November. He concluded:

In short, the Act would do nothing less than create a cloud of uncertainty over five decades of pleading jurisprudence, as developed between Conley in 1957 and Twombly in 2007. That is a recipe for a vast increase in litigation, which would impose huge costs on parties as well as on the already-overburdened federal courts.

The American Association of Justice issued a news release, with the sub-hed describing the argument succinctly: "Hearing today on Ashcroft v. Iqbal decision shows yet another avenue for corporations to evade accountability." The AAJ listed other groups supporting a return to notice pleadings, a who's who of aggrieved activists:

Alliance for Justice, American Antitrust Institute, American Civil Liberties Union, The Brennan Center for Justice at NYU School of Law, Center for Justice & Democracy, Christian Trial Lawyer's Association, Committee to Support the Antitrust Laws, Community Catalyst, Consumer Federation of America, Consumers Union, Earthjustice, Environment America, Essential Information, The Impact Fund, La Raza Centro Legal, Lawyers' Committee for Civil Rights Under Law, Leadership Conference on Civil Rights, Mexican American Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, National Association of Consumer Advocates, National Association of Shareholder and Consumer Attorneys, National Consumer Law Center, National Consumers League, National Council of La Raza, National Crime Victims Bar Association, National Employment Lawyers Association, National Senior Citizens Law Center, National Whistleblowers Center, National Women's Law Center, Neighborhood Economic Development Advocacy Project, Public Citizen, Sierra Club, Southern Poverty Law Center, Taxpayers Against Fraud, and U.S. Public Interest Research Group.

Don't think they missed anyone.

Coverage of the hearing ...

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.