Twombly and Iqbal Attack

In Kasten v. Ford Motor Company, Judge Victoria A. Roberts provided good law for employers regarding whether Twombly and Iqbal apply to employment discrimination cases. Judge Roberts rejected Plaintiffs' claim that Swierkiewicz v. Sorema N.A. governs pleading in employment discrimination claims, pointing out that according to Iqbal the Twombly standard applies to "all civil actions."

Perhaps the most helpful distinction in Iqbal, and pointed out by Judge Roberts, is that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." According to Iqbal, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

No harm no foul in Kasten, however, as two weeks after Judge Roberts's opinion, Plaintiffs amended their complaint which must have been sufficiently plead as it went unchallenged. This raises an interesting question as it seems, under most circumstances, courts will allow plaintiffs to re-plead. In that sense, it seems plaintiffs' attorneys will have to do more due diligence prior to filing and defendants will be able to dismiss meritless claims without having to engage in discovery. In that sense, importantly, Twombly and Iqbal prevent plaintiffs' attorneys from using the discovery process to uncover merit for the meritless.

Click here for a copy of Twombly.

Click here for a copy of Iqbal.