Since the Supreme court set out its “plausible claim” pleading standard in Ashcroft v. Iqbal last year, there has been a flurry of commentary – in law reviews and online – about the wisdom and the policy implications of the decision and its immediate predecessor, Bell Atlantic v. Twombly. The latest entry into that debate comes from Professor Robin Effron of Brooklyn Law School, who has written an article on The Plaintiff Neutrality Principle: Pleading Complex Litigation in the Era of Twombly and Iqbal (forthcoming from the William and Mary Law Review).
Effron’s primary concern is that a broad application of Twombly and Iqbal might lead to full-fledged Rule 23 inquiry at the motion to dismiss. (This is unlikely. Even if a defendant preempts a plaintiff’s motion for class certification, a comprehensive motion to deny will still require some discovery record. Iqbal’s plausibility standard may enhance a motion to strike or deny certification applying a Rule 12(b)(6) standard, but there – like in a motion to dismiss – courts will likely allow well-pled complaints to survive unless they have insurmountable legal defects.)
The more interesting part of the paper from a tactical standpoint is Effron’s concern with costs. The cost of litigation was not an explicit concern in Iqbal, but it was in Twombly. As Effron describes:
The Court repeatedly referred to the costs of litigation, especially the purportedly high cost of discovery in antitrust class actions as a factor in turning an increasingly critical eye to the factual sufficiency of the pleadings. This aspect of the Twombly opinion suggests that courts are to look not only at the plausibility of the allegations in the complaint, but the relationship between the plausibility of the allegations and the cost of discovery. The higher the cost of litigation, in other words, the more plausibility the court ought to demand from a complaint.
(Emphasis in original.) This suggests at least one rhetorical tactic for the motion to dismiss. A defendant may wish to remind the court of the very high costs involved in allowing a class action to proceed past the motion to dismiss stage. Most courts are very aware that, should they dismiss a claim (or compel arbitration), they may deny a plaintiff access to the courts. But, on the other side, when courts allow overly vague or outright implausible claims to proceed, they are authorizing an incredibly costly venture each time with little to no factual basis, which defies Rule 1’s admonition to ensure a "just, speedy, and inexpensive determination of every action and proceeding." There is every reason for a defendant to remind the court of that issue when moving to dismiss complex litigation.