Twombly: Conley v. Gibson Buried Alive
Here is a first reaction to Bell Atlantic v. Twombly, which came down this morning. The big news is not whatever the Supreme Court did or didn’t do to Section-1-Sherman-Act jurisprudence. The big news is that the majority sent into retirement Conley v. Gibson’s famous phrase that a 12(b)(6) motion may only be granted if there is “no set of facts” that plaintiff could prove to state a claim.
We could go on, but there is no need to pile up further citations to show that Conley’s “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion’s preceding summary of the complaint’s concret e allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.
It’s worse than that actually. “Retirement” is apparently a euphemism. The dissent (Stevens & Ginsburg) cries out:
If Conley’s “no set of facts” language is to be interred, let it not be without a eulogy. That exact language, which the majority says has “puzzl[ed] the profession for 50 years,” ibid., has been cited as authority in a dozen opinions of this Court and four separate writings. In not one of those 16 opinions was the language “questioned,” “criticized,” or “explained away.”
This can only mean that Conley was first retired and then buried alive (which, I am sure, has been a secret fantasy of the defense bar for a long time). At least we have a eulogy, and perhaps it will prove more powerful than the majority’s quick dismissal of the “no set of facts” rule.
In any case, it seems to me that Twombly will join other antitrust decisions, such as Matsushita, in the next editions of the Civ Pro case books, where it will stand for the proposition that Conley v. Gibson has been overruled, that Rule 8(a) requires “plausibility” rather than “possibility,” and that Form 9 refers to quaint things like negligent accidents with motor vehicles in 1936, but not modern class actions.
More later on what the Court’s rule in Twombly is with respect to Section 1.
Technorati Tags: Antitrust, Twombly, Supreme Court, Section 1, Conley v. Gibson
RSS Feed
