Thursday, July 19, 2007

Twombly Pleading Fall-Out

In June, I did a post on the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), which overruled (in the way the Roberts court does these days), Conley v. Gibson, 355 U.S. 41 (1957), in particular Conley's language that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," 355 U.S. at 45-46. Twombly has been raised in many cases outside of its narrow context (Section 1 of the Sherman Act), including IP case, see U2 Home Entertainment, Inc. v. Kylin TV, Inc., 2007 WL 2028108 (E.D.N.Y. 2007)(finding requisite pleading level met); Dell, Inc. v. This Old Store, 2007 WL 1958609 (S.D. Tex. 2007)(finding pleading to be insufficient); Aktieselskabet AF 21 v. Fame Jeans, Inc., 2007 WL 1655877 (D.D.C. 2007)(pleading insufficient).

Professor Scott Dodson has now made available on the Virginia Law Review In Brief a short, but helpful explanation of Twombly and where it may lead us, "Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. In Brief 121, available here, and worthy reading.

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