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June 14, 2012

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Nicholas J. Wagoner

I appreciate your spirited comment Paul, but I must respectfully disagree. It’s hardly controversial to characterize Iqbal and Twombly as having created a “heightened” pleading standard.

Members of the plaintiffs’ bar may have good reason to balk at this characterization, but it’s hard to disagree with the throng of federal judges across the country who routinely refer to Iqbal/Twombly as having created a "heightened" pleading standard. See, e.g., Cottle v. Falcon Holdings Management, LLC, Cause No.: 2:11-CV-95-PRC, at n.2 (N.D. Ind. Jan. 30, 2012) (referring to “the heightened ‘plausibility’ standard articulated in Iqbal and Twombly”); Riemer v. Chase Bank USA, N.A., 2011 U.S. Dist. LEXIS 56307 (N.D. Ill. May 25, 2011) (“Although Twombly and Iqbal dealt with the detail required in the allegations of a complaint, courts in this and many other districts have extended Twombly's heightened pleading standard to affirmative defenses.”); Aros v. United Rentals, Inc., 2011 U.S. Dist. LEXIS 125870, 2011 WL 5238829, at *3 (D. Conn. Oct. 31, 2011) (pointing out that Iqbal and Twombly “attempt to impose a heightened standard of pleading to limit wasteful expansions of litigation costs”); Chiancone v. City of Akron, No. 5:11CV337, 2011 U.S. Dist. LEXIS 108444, 2011 WL 4436587, at *3 n.3 (N.D. Ohio, Sept. 23, 2011) (referring to the pleading standard established in Twombly as a “heightened pleading standard”); Baroness Small Estates, Inc. v. BJ's Rests., Inc., No. SACV 11-00468, 2011 U.S. Dist. LEXIS 86917, 2011 WL 3438873, at *5 (C.D. Cal. Aug. 5, 2011) (declining to apply “the ‘heightened pleading standard’ articulated by the Supreme Court in Twombly and Iqbal” to the pleading of affirmative defenses).

The Honorable Shira Sheindlin of the Southern District of New York devoted an entire article to the subject entitled “Twombly and Iqbal: The Introduction of a Heightened Pleading Standard,” which I invite you to read at 27 Touro L. Rev. 233 (2011). During a Q & A with law students, even Justice Breyer acknowledged the fact that Iqbal created a heightened standard (i.e, one that “made it a little more difficult” to plead viable claims):

“This is a case which has basically - it’s a case beloved by proceduralists because it used to be, in fact, it tends to be under our rules of procedure fairly easy to file a compliant. Now my great law professor Ernie Brown used to tell me in the tax class, ‘Can you sue?’ he’d say. And then the student, the gullible student - I knew to hide at that point - but the gullible student would say ‘No.’ and he’d say ‘What do you mean? Anybody can sue. All you do is file a piece of paper and pay the filing fee.’ You see? Alright. So it used to be almost that easy. But you’re saying Iqbal made it a little more difficult? Yep. Yep.”

http://youtu.be/-Euh-_b86H4?t=1h3m9s.

I could go on, but I think you get the point. It’s hardly “flat out wrong” to state that Iqbal and Twombly created a higher pleading standard than the one that existed before the pair of opinions were handed down by the Court.

Paul Ogden

The premise of the article is flat out wrong. The Court later said that Iqbal/Twombley should not be interpreted as creating creating heightened pleading standards before you even get to affirmative defenses.

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