Twombly and progeny cut both ways

I blogged on the Twombly case back on Dec. 10, where the U.S. Supreme Court made it easier to win on a Rule 12(b) (6) motion to dismiss for failure to state a claim. To survive a motion to dismiss, post- Twombly plaintiffs must plead specific facts to support their claims. Barroom generalities, with the mere reciting of the elements of a claim, no longer suffice. Well, on May 18, the high court, by a 5-4 vote, expanded Twombley. In Ashcraft, et al v. Iqbal, the court looked a a complaint and said that if the allegations are as consistent with no liability as they are with liability, then the judge must grant the Rule 12 motion. This has not gone unnoticed, as Adam Liptak noted in his July 21 column in The New York Times, "From Case About 9/11, Broad Shift on Civil Suits." Liptak's final sentence rings true, federal judges "will now decide at the very start of a litigation whether the plaintiff's allegations ring true, and they will close the courthouse door if they do not." Recently, Sen. Arlen Specter suggested Congress may introduce legislation to return the law to pre-Twombley status. One last note: Defense lawyers should not be too jubilant. As a plaintiff lawyer friend told me over a few beers in Houston, these cases apply not just to plaintiffs' allegations but also to employers' affirmative defenses. I was a little beer addled, but I got the message, loud and clear.