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Are Twombly and Iqbal Up For Review?

— October 14, 2010


The Forbes law blog thinks they might be: 

The Supreme Court may announce as early as Monday that it plans to revisit the controversial issue of pleadings standards under Rule 8 of the Federal Rules of Civil Procedure. 

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Critics of Iqbal respond that unless they can get past the pleadings stage and engage in discovery, they have no way of proving that senior officials were directly involved.

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If the Court takes any action on Ashcroft’s petition at Friday’s conference, it will announce its decision on Monday.

Source: Terror-Related Case Has Supreme Court Poised To Revisit Pleading Standards Controversy – On the Docket – Inside the courtroom – Forbes 

I’m not hopeful that the current makeup of the Court will overrule Twombly and Iqbal.  Nor am I hopeful that any court can give an objective test to determine whether an allegation is “plausible” or not.  Several years ago, an allegation that Bernie Madoff was running a multibillion-dollar Ponzi scheme wasn’t plausible, but it was factually true.

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