The conservative Alliance Defense Fund is lining up in opposition to a pair of U.S. Supreme Court decisions that changed the standard for filing most civil lawsuits — a move that aligns the Christian litigation group with some unlikely allies.
Democratic lawmakers have been pushing for Congress to override last year's decision in Ashcroft v. Iqbal, as well as a similar decision in Bell Atlantic v. Twombly in 2007. They have the support of a coalition of liberal groups, including consumer advocates, trial lawyers, and civil rights organizations, all of whom say it’s become more difficult to avoid having their claims thrown out of federal court prior to discovery. On the other side, business groups have supported the rulings.
In a letter to lawmakers, Alliance Defense Fund senior counsel Gary McCaleb writes that his group represents both plaintiffs and defendants, so its objection is not that bringing a lawsuit has become more or less difficult. “Rather,” he writes, “our concern is that vague, malleable rules are bad news when it comes to orderly, reasoned processes.”
A 5-4 majority of the Supreme Court ruled in Iqbal that an initial pleading must include substantial, not “threadbare,” factual assertions that give “facial plausibility” to their claims. Previously, the system of notice pleading required only a simple statement of the case.
The new standard has complicated the early stages of litigation, McCaleb writes.
“Plaintiffs’ lawyers are now motivated to increase the complexity, length, and detail of their complaints, anticipating that their case will be one that needs ‘amplification’ to become ‘plausible,’” he writes. “In turn, defense lawyers now have to respond to these expansive ‘toss in the kitchen sink’ pleadings, and are motivated to litigate motions to dismiss that they never would have invested in under the clear [prior] standard.”
Click here for a copy of the letter, dated Jan. 26 and obtained by The National Law Journal. McCaleb confirmed in an e-mail that the letter is authentic. A spokeswoman for Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, said Leahy’s office received the letter last month.
Members of the House and Senate have held hearings on whether, through legislation, Congress should revise the Federal Rules of Civil Procedure to revert to the prior pleading standard. In December, they heard from Gregory Garre, the former solicitor general who argued Iqbal and who is now chair of the appellate practice at Latham & Watkins.