On December 2, 2009, the Senate Judiciary Committee conducted a hearing entitled, “Has the Supreme Court Limited Americans’ Access to Courts?” The hearing focused on a Senate bill introduced in July by Senator Arlen Specter (D-PA), known as the Notice Pleading Restoration Act of 2009. The bill would require federal courts to rely on the pleading standard set forth in Conley v. Gibson, 355 U.S. 41 (1957) and would effectively overturn two recent Supreme Court opinions that heightened federal pleading requirements: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Civil Rights v. Fishing Expeditions?
Supporters of the bill argue that Twombly and Iqbal represent a significant departure from precedent and deprive victims of their day in court. At the December hearing, Stephen B. Burbank, a professor at the University of Pennsylvania, pointed out the irony that the Justices “who deride a ‘living constitution’” would “enthusiastically embrac[e] ‘living federal rules.’” Plaintiffs’ groups, including civil rights groups such as the NAACP Legal Defense and Educational Fund and the ACLU, are urging the House and Senate to pass this or similar legislation.

Opponents argue that Twombly and Iqbal together represent an outgrowth of well settled law. In his oral testimony at the December hearing, attorney Greg Garre stated, “[i]n order to subject a defendant to the demands of civil litigation, implausible allegations of wrongdoing will not suffice.” In his written testimony, Mr. Garre notes the expenses and burden that would be imposed not only on civil defendants but “society at large” if conclusory allegations and implausible claims were allowed to go forward. He notes that this bill’s interpretation of the Federal Rules would allow for “fishing expeditions” and would contravene the “speedy and inexpensive determination of every action and proceeding” required by Rule 1 of the Federal Rules of Civil Procedure.

One of the questions that remains after the December hearing is whether (and, if so, how many) cases have been dismissed under Twombly and Iqbal that would not have been dismissed before those decisions were rendered. If the bill is enacted, corporate defendants may be forced to defend claims that previously would not have survived motions to dismiss under Twombly and Iqbal.

Other Activity
On October 27, 2009, the House of Representatives Subcommittee on the Constitution, Civil Rights and Civil Liberties of the Committee on the Judiciary conducted a hearing entitled “Access to Justice Denied: Hearing on Ashcroft v. Iqbal.” The bill remains in the Senate Judiciary Committee.

Supporting links
Click here for Specter’s remarks.  For the text of the Notice Pleading Restoration Act of 2009, click here.

Click here for witness testimony, member statements, and a webcast of the December 2, 2009 hearing.