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New Legislation Seeking the Reduction of Pleading Standards

 On November 19, 2009, legislation was introduced in the U.S. House of Representatives that seeks to reverse a recent U.S. Supreme Court case, Ashcroft v. Iqbal, 129 S.Ct. 1937.  The legislation (H.R. 4115) is entitled the Open Access to Courts Act of 2009, and it seeks to lower the standard of pleading articulated by the Supreme Court to for a plaintiff to state a legal claim. 

On July 22, 2009, Sen. Arlen Specter, D-Pa., similarly introduced the Notice Pleading Restoration Act (S. 1504), seeking to overturn the Iqbal decision.  Iqbal wasn’t an employment law decision.  Rather, the case involved the claim brought by a Pakistani Muslim detained after 9/11.  Iqbal sued then-Attorney General John Ashcroft and the F BI, alleging he was discriminated against unlawfully based upon his race, religion or national origin in contravention of the First and Fifth Amendments.  The Supreme Court’s ruling that Iqbal failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination set out a higher pleading standard applicable to employment discrimination cases.

As a result, pleadings that state “mere inferences or conclusions” will no longer suffice under the Iqbal standard.  Both the Senate and House bills seek to return the pleading standards to the law under Conley v. Gibson, 355 U.S. 41 (1957), a prior Supreme Court decision that held that a case could proceed “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.”  Prior to Iqbal, the Supreme Court articulated in Bell Atlantic Corp. v. Twombly, a more strict, “plausibility” standard, requiring in this case “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”

The legislation is yet another knee-jerk congressional reaction to a defense verdict by the Supreme Court.  If an uninformed person were to listen simply to the rhetoric, they might infer the Court was denying Mr. Iqbal his day in court.  That was not the case, the dismissal was without prejudice, which means Mr. Iqbal can return to court and replead his claim in the level of detail required by the court.  Usually, if the reason a case is dismissed is based upon a failure to properly plead, the plaintiff will be given an opportunity to bring the case again.  Most plaintiffs’ attorneys in employment cases meet the pleading standard articulated in Iqbal.   Furthermore, most state courts do not require notice pleading, and plaintiffs’ lawyers have to plead in more detail there anyway.   

Courts don’t want plaintiffs who just cite statutes in their pleadings; the allegations need to be somewhat more specific to survive the Iqbal pleading standards.  However, the trend recently is for Congress to introduce and pass legislation, such as the Lilly Ledbetter Fair Pay Act and the Americans with Disabilities Amendments Act, directed toward the nullification of Supreme Court decisions.  The Open Access to Courts Act and the Notice Pleading Restoration Act both clearly seek to contribute to this trend.

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