Iqbal and Settlement
By Michael Moffitt.
Published July 26, 2010.

The Supreme Court’s decision in Iqbal was good news for defendants. By increasing the scrutiny with which a plaintiff’s complaint is to be examined, the “plausibility” standard articulated by the Court makes motions to dismiss a more potent tool.

A nearly implausible amount of scholarly ink has already been spilled in an endeavor to answer descriptive, predictive, and normative questions about Iqbal. What does the plausibility standard really mean? How much of a change does this represent? Who will be most affected? And are those changes wonderful, awful, or something else? The sky either is or is not falling on some or all of us, according to Iqbal analysts.

Much of what has been written about Iqbal has been written from the perspective of litigation, and that is perfectly sensible. After all, Iqbal is a decision about Federal Rule of Civil Procedure 8, at its heart. Questions of access to the court and defenses like immunity are bread and butter Civil Procedure topics. Of course many of those who have commented on the case do so from a litigation perspective.

As Nancy Welsh suggests, however, the realities of modern litigation present another frame through which to assess Iqbal—that of settlement dynamics. My question is not whether Iqbal will have this or that effect on litigation. My question is whether Iqbal will create a change in disputants’ conversations about settlement. [keep reading]

Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach
By Hon. T.S. Ellis, III and Nitin Shah.
Published August 8, 2010.

The Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have triggered a lively and heated debate over the federal threshold pleading standard. This debate is far from new. Distilled to its essence, the fundamental issue presented by this debate—the ease with which a claimant may nudge open the doors of a federal court—is the same issue that has been debated since well before the adoption of the Federal Rules of Civil Procedure. And we think it is safe to say that this issue will continue to be debated long after the dust settles on the current eruption.

As is typical of many policy debates, the debate over the merits and demerits of Iqbal and Twombly has been characterized by almost as much heat as light. Opponents of the decisions contend the decisions have the effect of closing federal courthouse doors to claimants with meritorious claims; they decry this assault on fair access to the courts. No less dramatic is proponents’ contention that the decisions are a necessary safeguard against an onslaught of frivolous claims cooked up by plaintiffs’ lawyers to pry open courthouse doors so they can use discovery as a weapon to extort settlements. Both sides’ contentions do little to advance the debate. No one disagrees with the contention that there should be fair access to the courts and that claimants with meritorious claims should not be denied this access. Similarly, no one denies that there should be proper safeguards to prevent claimants from using meritless claims merely to arm themselves with the weapons of discovery. These two contentions do not advance the debate for they assume the questions at issue, namely whether Iqbal and Twombly, contrary to their authors’ intent, have resulted in closing courthouse doors to meritorious claims or whether those opinions, consistent with their authors’ intent, have served to shut courthouse doors only to meritless claims asserted in the hope of coercing a settlement. [keep reading]