Results matching “iqbal twombly pleadings”

The American Association for Justice has filed its first quarter lobbying disclosure form with the Clerk of the House, reporting $850,000 in lobbying expenses for the period, down from the $910,000 reported in the fourth quarter of 2010. The report filed with the House Clerk's Office indicates continued lobbying on familiar issues, such as:

  • Notice pleadings in federal courts (Iqbal/Twombly)
  • Preemption of state causes-of-action involving drug manufacturers
  • Various bills to restrict pre-dispute arbitration provisions in contracts.
  • S. 623/H.R. 592 (Sunshine in Litigation Act of 2011); relating to the use of protective orders, sealing of cases, and disclosure of discovery information in federal civil cases. (See earlier POL post.)

In light of the new Republican control of the U.S. House, the trial lawyers are also lobbying some new issues and pieces of legislation. These jumped out at us:

  • H.R. 966/S. 533 (Lawsuit Abuse Reduction Act of 2011); to amend Rule 11 of the Federal Rules of Civil Procedure to make sanctions mandatory.
  • S. 299/ H.R. 10 (Regulations From the Executive in Need of Scrutiny Act of 2011); to provide that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law.
  • H.R. 1 (Full-Year Continuing Appropriations Act); specific interest in House Amdt. 85 to defund the Equal Access to Justice program, and House Amdt.159 to defund the the Consumer Product Safety Commission Product Safety Database.
  • H.R. 887(no short title); to direct the Secretary of the Interior to submit a report on Indian land fractionation, and for other purposes, specific interest in the modification of attorney's fees. (This is a post-Cobell piece of legislation from Rep. Don Young (R-AK).

The GOP House has also elicited an increased level of lobbying against federal medical liability reform, specifically, H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act and malpractice reforms generally. The AAJ continues to go outside its own lobbying shop to pay Patton Boggs to work the health care issue, among others, to the tune of $130,000 for the quarter, as well as Forscey and Stinson, $50,000.

The AAJ has also added another lobbying firm to handle medical liability and health care issues, Van Heuvelen Strategies, LLC. Bob Van Heuvelen is the former chief of staff to Sen. Kent Conrad (D-ND), who is not seeking reelection in 2012.

Even though Senator Arlen Specter failed in his bid to win the Democratic Party's nomination in Pennsylvania, he's still around for the next several months to work Congressional mischief on behalf of the plaintiffs' bar. Front and center in his efforts: his bill to reverse the Supreme Court's Iqbal and Twombly decisions reining in federal pleading rules (see earlier discussion here, here, here, here, and here).

As we've previously suggested, there are national-security implications for returning to a pre-Iqbal notice pleading standard, a point made clearly today on NRO by my law school classmate Bill Burck and his former Bush White House colleague Dana Perino, in a column discussing the interrogation of alleged Times Square bomber Faisal Shahzad.

Democratic representative opposes Iqbal/Twombly bill - PointOfLaw Forum

U.S. Rep. Rick Boucher (D-VA) has sent a letter to House Judiciary Chairman John Conyers urging him not to schedule any committee consideration of H.R. 4115, the Open Access to Courts Act. The Congressman writes:

The measure overturns two recent U.S. Supreme Court decisions, Ashcroft v. Iqbal (2009) and Bell Atlantic Corp. v. Twombly (2007), which clarify standards for the sufficiency of pleading in civil cases. I am concerned that the legislation would produce a dramatic change in pleading standards to the detriment of the federal court system. Rather than reverting to pre-Iqbal and Twombly standards, as proponents of the bill claim, H.R. 4115 would raise substantially the government standards for motions to dismiss. In doing so the measure ignores the years of precedent affirmed by the two Supreme Court decisions which struck a fair balance between the rights of plaintiffs and the need to prevent frivolous lawsuits.

Boucher also emphasizes the effect of excessive filings on the limited resources of the federal courts.

Earlier posts on pleadings.

The American Association for Justice has just filed its first quarter 2010 lobbying disclosure form, reporting $1.05 million in lobbying expenses for the three-month period. That's compared to the $1.33 million reported in the fourth quarter 2009.

Having successfully lobbied against any medical liability reform in the new health care law -- and boasting of that success -- the AAJ can now turn to other legislative priorities. From the lobbying disclosure, the association's website, www.justice.org, and other sources, we'd identify those priorities as the Medical Device Safety Act -- ending federal preemption for FDA-approved devices -- legislation to ban pre-dispute arbitration clauses, and bills to restore notice pleadings, i.e., to reverse Iqbal/Twombly. These will all be familiar topics to Point of Law readers.

The lobby also appears ready to resurrect H.R. 2519/S. 437, bills to allow the deduction of attorney-advanced expenses and court costs in contingency fee cases. This is the Holy Grail for the trial lawyers, described by Victor Schwarz and Chris Appel of Shook, Hardy, and Bacon in a May 2009 Washington Legal Foundation paper, "Federal Government Bailout for Trial Lawyers." Excerpt:

In the 110th Congress, the Joint Tax Committee scored the federal bailout for trial lawyers at $1.57 billion over 10 years. We do not believe the American taxpayer will want to bear this cost. At that time, The Wall Street Journal editorialized that the tax change "would allow plaintiffs lawyers to deduct the up-front expenses of pursuing contingency-fee lawsuits, even in cases where the lawyer is expecting to be reimbursed for these expenses. . . Allowing these big deductions now would mean that future reimbursements are taxed, but with some monster class-actions, the lawyers could avoid the tax bill for a decade or more. Naturally, this would be an incentive to file more class-action suits, because the lawyers could write off their up-front expenditures to pursue them." Editorial, The Bill Lerach Tax Cut, WALL ST. J., May 30, 2008, at A14. [Here].

We thought the disinfecting sunshine of public scrutiny had killed those provisions, but AAJ must believe otherwise. Not only are the bills listed on the lobbying report, the AAJ has also just hired an outside lobbying firm to work the issue.

On March 1, the Washington Tax Group filed its lobbying registration form with the American Association for Justice listed as its client. Listed as the lobbyist to represent the AAJ is Noushin Jahanian, former chief counsel to Sen. Debbie Stabenow (D-MI), a member of the tax-writing Senate Finance Committee.

Trade associations don't normally spend money on outside lobbyists if an issue is dead.

There's been talk of Sen. Arlen Specter (D-PA), sponsor of S. 437, trying to add various special-interest legislation to the financial regulation bill, but the trial lawyer bailout seems too hot for that maneuver. Our guess is that lobbyists will try to add it to an omnibus or disaster aid spending bill later in the session. A post-election, lameduck Congress in which the Democrats still control large margins in the House and Senate could try for one last bill to reward political allies. A tax deduction for contingency fee lawsuits would be quite a gift to the AAJ, one certainly worth lobbying for.

My last post showed some of the major legislative efforts that trial lawyers have successfully pushed through Congress in the last 2 years. But as Carter's post last month on the trial lawyers' legislative "agenda" shows, they're hardly slowing down. Trial Lawyers, Inc.: K Street focuses on five of the most significant efforts currently underway to increase the litigation industry's profits: loosening pleading standards, expanding securities litigation, rolling back federal preemption, limiting private arbitration, and cutting taxes on plaintiffs' litigation.

  • Pleading standards. Point of Law readers are already familiar with the Supreme Court's recent decisions to limit the outer boundary of notice pleadings in Ashcroft v. Iqbal (2008) and Bell Atlantic v. Twombly (2006) (see postings for each, here and here, respectively), as well as the Congressional effort to reverse the two decisions. What's most important to keep in mind about the legislation purportedly designed to overturn Twombly and Iqbal (S. 1505, H.R. 4115) is that it would do far more; as the K Street report notes, it "would likely interfere with statutory pleading requirements well beyond the scope of the Court's recent decisions." (See also Michael Dorf's comments here; Gregory Garre's testimony here).
  • Securities litigation. In another bill designed to overturn a Supreme Court decision, Arlen Specter's Liability for Aiding and Abetting Securities Violations Act (S. 1551) would undo the Supreme Court's 2007 decision in Stoneridge v. Scientific-Atlanta. In Stoneridge, as our readers will recall, the Supreme Court considered a class action lawsuit filed by a cable company's shareholders against other companies that had done business with their own and thus, the shareholders alleged, "aided and abetted" the company's accounting frauds. Finding no evidence of Congressional intent to authorize third-party securities through private rights of action, the Court determined that to do so would "expose a new class of defendants," raise "the costs of doing business," deter "[o]verseas firms . . . from doing business here," "raise the cost of being a publicly traded company under our law," and "shift securities offerings away from domestic capital markets." Senator Specter's bill would do just that.
  • Federal preemption. A fourth Supreme Court decision in the trial-lawyer lobby's crosshairs is Riegel v Medtronic (2008), in which the Court, by a vote of 8 to 1, determined that the 1976 Medical Devices Amendments to the Food, Drug & Cosmetic Act expressly preempted state tort lawsuits for Class III medical devices that had gone through the FDA's extensive premarket approval process. (For an extensive discussion of the preemption issues in this and related cases, see this report that I authored with my Manhattan Institute colleage Paul Howard last spring.) As the K Street report notes, the proposed legislation (H.R. 1346, S. 540) would "permit suits to proceed that stem from injuries that originated long before the law's effective date, if otherwise valid under state law."
  • Private arbitration. As I noted in my last post, discussing the Franken amendment, the trial lawyers are doing their best to push federal legislation that broadly bars private arbitration agreements in hosts of contexts. Pro-litigation legislators have introduced bills that would limit or eliminate arbitration clauses in nursing home agreements (The Fairness in Nursing Home Arbitration Act, H.R. 1237, S. 512), for mortgage loans or home-equity lines of credit (The Mortgage Reform and Anti-Predatory Lending Act, H.R. 1728), for payday loans (The Payday Loan Reform Act, H.R. 1214), for tax-refund loans (The Taxpayer Abuse Prevention Act, S. 585), in consumer contracts (The Consumer Fairness Act, H.R. 991), and in all employer, franchise, and consumer contracts (The Arbitration Fairness Act, H.R. 1020, S. 931).

  • Contingent-litigation taxation. Finally, Senator Specter has also introduced a bill (S. 437) that would give contingent-fee lawyers a $1.6 billion tax break. Traditional prohibitions against champerty and maintenance precluded what today is commonplace -- trial lawyers fronting their clients' expenses. As the K Street report explains, "the personal-injury bar's financing structure -- the 'contingent fee,' the share of the proceeds that a winning client pays his attorney, who has fronted the cost of the litigation -- runs afoul of the historical understanding of champerty. Therefore, expenses in contingent-fee cases have been treated by courts not as support of litigation per se but rather as loans to clients, to be repaid upon a winning lawsuit's resolution." Senator Specter's legislation would, for federal taxation purposes, change the status of contingent-fee litigation costs from loans to expenses -- thus allowing plaintiffs' lawyers working on contingency an immediate deduction of all costs against their taxes. Specter argues, in essence, that lawyers should be treated no different than any other business (a telling statement on the evolution of the legal "profession" into an industry). However one views this question as a theoretical matter, there's no question that Specter's legislation would pour lots of new money into the trial bar's coffers -- and lots of new lawsuits onto judges' dockets.

Those keeping count will note that the above legislation includes efforts to overturn four different Supreme Court decisions (Iqbal, Twombly, Stoneridge, and Riegel). A fifth piece of legislation (H.R. 1478), mentioned only briefly in the K Street report, would overturn a 60-year-old Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950) (holding that the United States is immune from liability suits by active duty personnel under sovereign immunity principles). And of course, two of the recent bills already signed into law also reversed recent Supreme Court decisions (The Lilly Ledbetter Act, overturning Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007); and the Fraud Enforcement and Recovery Act, overturning Allison Engine Co. v. United States, 128 S. Ct. 2123 (2008)).

Sen. Arlen Specter (D-PA) has been a boon ally of the American Association for Justice this session of Congress, introducing several priority pieces of legislation for the trial lawyers, including S. 437, to allow the deduction of attorney-advanced expenses and court costs in contingency fee cases, and S. 1504, the Notice Pleadings Restoration Act, to return federal pleadings to the pre-Iqbal and Twombly standards.

No surprise, then, the AAJ's political action committee contributed $4,000 to Sen. Specter's re-election campaign in 2009 ($1,500 on May 13 and $2,500 on August. 5.) You stick by your friends...

All your friends, apparently, even when they're fighting one another. The American Association for Justice PAC also contributed $5,000 to Specter's Democratic primary opponent, Rep. Joe Sestak.

Granted, half of that amount was given before Sestak announced his challenge of Specter (Feb. 23 and March 23), but half was also given in June (here and here) after Sestak had announced his Senate candidacy.

Contributing to both candidates is not that unusual of a maneuver for political action committees, but we doubt Specter appreciates the sentiment: Thanks, Senator. If you have to lose, we hope it's to Sestak.

And in fact, now that we look at December reports, we see that the AAJ PAC kicked in another $5,000 to Specter, this time identified for the Senator's general election campaign. So, total $9,000.

Drop in the bucket, in any case. According to Federal Election Commission records, AAJ PAC raised $2,558,746 in 2009 and gave $1,810,500 to campaign committees. The Center for Responsive Politics reports that 95 percent of the contributions went to Democrats in the current election cycle. (Another $1 million plus change went to pay principal and interest on a loan from Private Bank and Trust of Chicago, for what we don't know.)

UPDATE (Saturday): Digging a little deeper, we see that the AAJ, ne ATLA, has previously taken out and repaid major loans from the Chicago bank. (See 2003-04 summary from Open Secrets and the 2005-2006 summary.) Campaigns do this sort of borrowing to manage cash flows, in our experience.

The American Association of Justice sponsored a media briefing today to outline its 2010 legislative agenda. The headline on the news release, "2010 Dawning of New 'Decade of Corporate Accountability'."

Judging by President Anthony Tarricone's quote, the AAJ is still campaigning against the Bush Administration: "During the last decade, we saw a dismantling of regulations and our legal system for the benefit of big corporations and to the severe detriment of patients and consumers." More hyperbole follows. The goals highlighted:


  • A restoration of notice pleadings, i.e., legislation to reverse the Iqbal and Twombly decisions.
  • Passage of the Medical Device Safety Act to expand litigation against FDA-approved devices to state courts.
  • Elimination of arbitration clauses in consumer contracts.
  • "Protecting patients injured by medical negligence," or as we'd put it, no medical liability reform.
  • Passage of the Foreign Manufacturers Legal Accountability Act (S. 1606) to provide more effective procedures for bringing overseas companies into U.S. courts.

The only coverage we've seen of the event comes from the Blog of the Legal Times, which focuses on the arbitration angle, "Next Target for Plaintiffs Bar: Nursing Homes?"

UPDATE (Tuesday): Also covering the event was The Hill, "Trial bar tries to end 'forced arbitration'." The Chamber-backed Legal Newsline wrote, "Trial bar seeks to expand liability, end arbitration clauses."

James Beck (assisted by Mark Herrmann) goes up against liberal proceduralist Stephen Burbank in a multi-round debate (PDF) at Penn Law's PENNumbra, and survives to tell the tale. A brief excerpt from their first post (most citations omitted):

...In 1955, the Advisory Committee rejected an amendment to Rule 8(a)(2) that would have required plaintiffs to state "facts constituting a cause of action." It did so not to endorse fact-free pleading, but rather because the Committee already viewed existing Rule 8(a)(2) as requiring "the pleader to disclose adequate information as the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it."

In 1957, the Supreme Court weighed in, offering in Conley v. Gibson, 355 U.S. 41 (1957), an extremely liberal interpretation of Rule 8. Conley contained dictum that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." This phrasing invited abuse, since hypothetical "set[s] of facts" not even pleaded could prevent dismissal. Taken literally, the Conley dictum could make it impossible for a defendant to win a motion to dismiss, thus rendering Federal Rule of Civil Procedure 12 a nullity.

Some courts declined to read Conley literally and continued to hold "that legal conclusions need not be accepted as true on 12(b)(6) motions" and "that pleaders are not entitled to unreasonable factual inferences." Edward A. Hartnett, Taming Twombly, 158 U. Pa. L. Rev. (forthcoming 2010) (manuscript at 16), available at http://ssrn.com/abstract=1452875. They continued to dismiss complaints that plainly lacked merit. ...

They cite the bone screw mass tort litigation as one in which parallel actions were brought before two federal judges, one of whom dismissed the action as based upon implausible pleadings, the other of whom waved it forward. The second case inflicted millions of dollars in costs on defendants who included blameless doctors and their families before eventually being dismissed on summary judgment.

Gregory Garre, who as U.S. Solicitor General argued the Ashcroft v. Iqbal case before the U.S. Supreme Court (transcript), testified Wednesday at the Senate Judiciary Commitee's hearing, "Has the Supreme Court Limited Americans' Access to Courts?" His 41-page prepared statement is an excellent discussion of pleadings standards and the implications of the Iqbal and Twombly cases.

Also, as a former government official himself, Garre seems especially concerned about the effect of proposed legislation -- such as Sen. Arlen Specter's S. 1504 -- of the use of permissive pleadings to undermine or evade qualified immunity. His conclusion:

There is no reason for Congress to override the time-honored judicial rulemaking process when it comes to evaluating or addressing the Twombly and Iqbal decisions. Indeed, the threshold nature of pleading standards and the interaction between Rule 8 of the Federal Rules of Civil Procedure and other rules (e.g., Rule 12(b)(6) and Rule 15) make this an issue that is particularly well-suited for the expertise and deliberative attention of the Judicial Conference of the United States in carrying out its statutory duty to engage in "a continuous study of the operation and effect of the general rules of practice and procedure." 28 U.S.C. ยง 331.

Also testifying were two critics of the Iqbal decision, John Payton of the NAACP Legal Defense Fund (statement), and Stephen Burbank of the University of Pennsylvania Law School. Chairman Patrick Leahy and Sen. Russell Feingold also had prepared statements (here and here, respectively).

Earlier Point of Law posts here.

Congress keeps up pressure on Iqbal, Twombly - PointOfLaw Forum

The Senate Judiciary Committee holds a hearing Wednesday, Dec. 2, "Has the Supreme Court Limited Americans' Access to Courts?," which we take to be another opportunity to attack the Supreme Court decisions -- Ashcroft v. Iqbal and Bell Atlantic v. Twombly -- that limited notice pleadings by requiring specific factual allegations. On the witness list is Gregory Garre, who as U.S. Solicitor General argued before the U.S. Supreme Court in the Iqbal case on Dec. 10, 2008. (Transcript of oral arguments.) The American Lawyer spoke briefly with Garre, now at Latham & Watkins, in October:

Garre told us that, contrary to reports that called Iqbal a Supreme Court sleeper, "we perceived it to be a very important case all along," not just because the named defendants were former U.S. Attorney General John Ashcroft and former FBI Director Robert Mueller. Garre and his team understood that their case had the potential to establish whether the Court's ruling in Twombly applied only to antitrust cases or constituted a broader interpretation of the Federal Rules of Civil Procedure.

And because the Court's Iqbal opinion specifically addressed the old pleading standard established in a case called Conley, he said, "it was significant in clarifying standards in evaluating the sufficiency of pleading."

Also scheduled to testify at the Judiciary hearing are two critics of the Iqbal decision, John Payton of the NAACP Legal Defense Fund, and Stephen Burbank of the University of Pennsylvania Law School, noted for his writings on federal court rulemaking. (See Tony Mauro, National Law Journal, "Plaintiffs Groups Mount Effort to Undo 'Iqbal.'")

On the Judiciary Committee is Sen. Arlen Specter (D-PA), who has introduced S. 1504 to return the law to a pre-Iqbal standard on pleadings. Last week, Rep. Jerrold Nadler (D-NY)  introduced H.R. 4115, the Open Access to Courts Act of 2009, hailed by the American Association for Justice. (See Mass Tort Defense blog, "Anti-Iqbal legislation update.") Earlier Point of Law posts here.

In Congress, promoting the return of notice pleadings - PointOfLaw Forum

Rep. Jerrold Nadler (D-NY) has introduced H.R. 4115, the Open Access to Courts Act of 2009, to restore notice pleadings, i.e., the status quo ante Twombly and Iqbal.

Nadler's news release announced the bill, "Nadler, Johnson, and Conyers Introduce Bill to Overturn Supreme Court Decision And Restore Access to Courts." The list of supporting organizations is an impressive roster of litigation-minded activists and grievance groups.

American Association for Justice had its news release teed up, "AAJ Calls on Congress to Restore Americans' Basic Legal Protections," which claims the Supreme Court decisions "irrationally raised the bar for Americans seeking justice in employment, discrimination, and other civil cases." Irrationally? A serious question: Why does AAJ think it advances its cause to insult people's intelligence?

In a July post, "Back to the bad old days on pleading?," Walter summarized what's at stake: "Make no mistake: the Supreme Court's recent rulings in Twombly and Iqbal offer the best hope in years for curtailing ill-founded litigation and reducing the scope of needless combat in what remains (by focusing and narrowing issues at an early stage and heading off discovery 'fishing expeditions')." For more, see these posts.

Sen. Arlen Specter (D-PA) had previously introduced S. 1504, the Notice Pleadings Restoration Act.

H.R. 4115 is a short bill, so we've put the entire text in the extended entry.

Rep. Hank Johnson (D-GA) gave an opening statement at the House Judiciary subcommittee hearing, "Access to Justice Denied - Ashcroft v. Iqbal," stating his intention to cosponsor Rep. Nadler's bill to overturn the Supreme Court's Iqbal and Twombly decisions. (See post below.) Johnson is chairman of the Judiciary Committee's Subcommittee on Courts and Competition Policy, and he said he would quickly move to mark up the bill. Full Committee Chairman John Conyers is also on board.

Johnson's wandering statement included an unpleasant suggestion that federal judges might dismiss civil suits so they could land lucrative private sector jobs. At least that's how we read it:

It seems this measure penalizes plaintiffs as opposed to defendants, particularly in discrimination cases where you cannot uncover the wrongdoing without doing some basic discovery. And this decision would do away with that possibility because judges would be in the position to use their subjective wisdom, if you will, or perhaps even their desire to get a high-paying job in the future in the public sec...I mean the private sector, could be jeopardized if, - or it could be enhanced, I'll put it like that - by their ruling on a motion to dismiss based on inadequacy of the pleadings.

Hmmm.

Transcribed from the hearing video.

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:

House hearing on Iqbal/Twombly - PointOfLaw Forum

Sounds as if they didn't invite Beck or Herrmann to testify at the hearing today, which is a shame, since they've provided the best coverage on why the Supreme Court's recent jurisprudence on pleadings deserves to be defended rather than steamrollered by a plaintiff's-bar-friendly Congress.

P.S. The hearing page lists only Prof. Arthur Miller's NYU affiliation, not his Milberg affiliation.

A House Judiciary hearing on Iqbal, notice pleadings - PointOfLaw Forum

House Judiciary Committee:

Hearing on: Access to Justice Denied - Ashcroft v. Iqbal Tuesday 10/27/2009 - 2:30 P.M. 2237 Rayburn House Office Building Subcommittee on the Constitution, Civil Rights, and Civil Liberties

Rep. Jerrold Nadler (D-NY) chairs the subcommittee. No witnesses listed yet.

For more on Iqbal/Twombly and notice pleadings, see Walter's July 24 post, "Back to the bad old days on pleading?" Also, May 21, "Iqbal: High court reins in liberal pleading"

Update: Earlier this month, Rep. Nadler chaired a subcommittee hearing, "Civil Rights Under Fire: Hearing on the Recent Supreme Court Decisions," including Ashcroft v. Iqbal in a long list of grievances.

"A Twombly of Scholarship" - PointOfLaw Forum

Beck and Herrmann dip into (as they have again and again) the steady stream of recent law school discussions of Twombly, Iqbal, and the tightening of pleading standards. Like the Supreme Court -- but unlike so many of the academic commentators -- they consider it a step forward to protect litigants from the costs of process inflicted by legal actions based on vague or unfounded pleadings.

Specter's bill to overturn Stoneridge - PointOfLaw Forum

Kevin LaCroix on "Why It Could Pass and Why It Matters". (More: Ribstein). He's also got some comments on the horrible Specter bill to overturn the Iqbal/Twombly line of decisions strengthening the pleadings stage of litigation, on which more from Tony Mauro at the NLJ.

Notice pleadings, the AAJ takes notice - PointOfLaw Forum

The American Association for Justice schedules a teleseminar, "Iqbal/Twombly: The Death of Notice Pleading?"

On September 17 AAJ will hold an exclusive teleseminar on Iqbal/Twombly: The Death of Notice Pleading? This teleseminar will feature J. Douglas Richards who argued the case before the US Supreme Court on behalf of the plaintiffs-respondents and John Vail of the Center for Constitutional Litigation, P.C. which submitted an amicus brief on behalf of the American Association for Justice in support of the respondents.

Last year Richards published a piece in a St. Johns University symposium, "Three Limitations of Twombly: Antitrust Conspiracy Inferences in a Context of Historical Monopoly." And the AAJ's amicus brief in Iqbal is here.

UPDATE (Sunday): The agenda for the seminar is now posted online here.

Back to the bad old days on pleading? - PointOfLaw Forum

Make no mistake: the Supreme Court's recent rulings in Twombly and Iqbal offer the best hope in years for curtailing ill-founded litigation and reducing the scope of needless combat in what remains (by focusing and narrowing issues at an early stage and heading off discovery "fishing expeditions"). And they have already provoked a response from some who like things just fine the way they were before [Frankel, American Lawyer ("Plaintiffs Lawyers' Favorite Senator, Arlen Specter, Introduces Iqbal Rollback Legislation"); Blog of Legal Times; Beck & Herrmann ("It's a measure of the political clout that the other side has that, whenever the Supreme Court does something that the plaintiffs' bar doesn't like, a bill gets introduced to change it"); CL&P]

Iqbal/Twombly has predictably brought peals of outrage from some in legal academia (e.g. Howard Wasserman, Prawfsblawg). Adam Liptak reported on the backlash earlier this week in the Times. The most outspoken defenders of the new decisions so far have been Beck & Herrmann, who engage the academic critics here, here and here; see also their new Featured Column for this site, a second Wasserman post and Marcia McCormick, Workplace Prof. And Max Kennerly, taking issue with the general drift of commentary, contends that the impact of the decisions is less than is widely assumed.

Earlier Point of Law coverage can be found here. My first book The Litigation Explosion (1991) devoted an early chapter (ch. 5: "Litigation Made Easy: Suing Without Explaining") to the decline of a meaningful pleadings stage in civil procedure as one of the key procedural innovations by which advocates of expanded litigation ensured that we would get lots of it. And, yes, I do feel just slightly vindicated that a topic that seemed almost entirely historical if not obscure at the time ("You have a chapter on why notice pleading is a bad idea?") has once again made its way back to center stage.

Iqbal: High court reins in liberal pleading - PointOfLaw Forum

And a furor erupts in academic and [not necessarily entirely overlapping] plaintiff-oriented circles:

To declare my own sympathies: in my first book, The Litigation Explosion (1991), I argued at length that the system of notice pleading, in which the barest and least informative allegations are enough to get into court, is high on the list of factors contributing to our national oversupply of litigation. That doesn't necessarily imply that any one way of fixing things, or of narrowing or winnowing out lawsuits at the pleadings stage, is the right way; interestingly, no less a figure than Richard Epstein has written a SSRN paper somewhat critical of the high court's Twombly decision, of which Iqbal is an extension. But it does mean I tend toward impatience with the notion that everything was fine in the Conley v. Gibson era, and that if opponents who have done nothing wrong happen to be ruined by the cost of responding to vague, conclusory and shifting allegations, well, you can't make an omelet without breaking eggs etc.

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