As many practitioners can attest, thet Supreme Court's decisions in Twombly and Iqbal have thrown a wrench into pleading practice. The cumulative effect of these decisions is to permit individual judges to exercise their "common sense" to determine whether a case is "plausible" enough to proceed - with the predictable result that important cases in the competition field and beyond are being thrown out without even having a chance to test their allegations in discovery. The impact of these decisions on the ability of aggrieved claimants to seek redress has been profound.
There is growing recognition that these decisions are a problem. On October 26, the American Antitrust Institute (AAI) and 35 other groups sent letters to members of the House and Senate Judiciary Committees in attempt to restore the Conley v. Gibson pleading standard. The letters, which can be viewed here (House Letter & Senate Letter), summarize the impact of the heightened pleading standard that has resulted from the cumulative effect of Twombly and Iqbal. The letters also emphasize the growing concern that access to justice has been significantly reduced as otherwise meritorious claims are now increasingly dismissed.
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