Taming Twombly, Even After Iqbal
by Edward A. Hartnett

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In Bell Atlantic Corp. v. Twombly, the Supreme Court held that an antitrust complaint alleging that major telecommunication providers engaged in parallel conduct unfavorable to competition could not survive a 12(b)(6) motion to dismiss, even though the complaint expressly alleged a conspiracy. The Court insisted that a complaint contain “enough facts to state a claim to relief that is plausible on its face,” and concluded that a conspiracy, while “conceivable,” was not “plausible.” In addition, the Court retired the famous language from Conley v. Gibson that “a complaint should not be dismissed for failure to state a claim 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.”

Scholarly reaction to Twombly has been largely critical, with most complaining that the Court imposed a heightened specificity standard of pleading and that plaintiffs will lack the evidence to plead these specifics prior to discovery. Scholars have criticized the Court for abandoning decades of precedent and rejecting ideas central to the Federal Rules of Civil Procedure.

Some have suggested that Twombly’s requirement of plausibility should be understood as an aspect of substantive antitrust law, thereby limiting the impact of the decision largely to antitrust cases. Others have suggested that Twombly should be limited to large, complex, sprawling cases, given the Court’s evident concern with the cost of discovery in such cases. These hopes of limiting Twombly were dashed by the Supreme Court’s decision in Ashcroft v. Iqbal, which held that the Twombly framework applies to all civil actions.

Naturally, critics of Twombly voice the same criticisms of Iqbal but are no longer tempered by the hope that its range might be limited. Faced with the failure of the attempt to limit Twombly, some have called for a legislative restoration of Conley v. Gibson.

This Article takes a different tack. Rather than decrying Twombly as a radical departure and seeking to overturn it, this Article instead emphasizes Twombly’s connection to prior law and suggests ways in which it can be tamed. First, the plausibility standard of Twombly can be understood as equivalent to the traditional insistence that a factual inference be reasonable. Second, the Twombly framework can be treated as an invitation to present information and argument designed to dislodge a judge’s baseline assumptions about what is natural. Third, despite a widespread assumption to the contrary, discovery can proceed during the pendency of a Twombly motion. This Article also suggests that the traditional practice of pleading “on information and belief” be retired, and connects a tamed Twombly to broader trends toward managerial and discretionary judging.

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