Repealing Iqbal and Twombly Part II:It's Not Just Business

Monday, August 2, 2010 - 00:00

Lisa A. Rickard


US Chamber Institute For Legal Reform

Last month, I wrote about legislation that could dramatically increase the number of junk lawsuits in federal courts, clogging our court system and forcing businesses to devote scarce resources to legal expenses instead of jobs and investment. But businesses are not the only victims of this misguided legislation. State and local governments, law enforcement personnel and national security officials could all be forced to devote precious time and resources to dealing with frivolous lawsuits.

I described in my first article what appears to be the law of today's Washington politics, where every action creates an opportunity for a disproportionate reaction, one that can reward special interests while having a profound negative impact on our country.

In this case, the initial actions were two recent Supreme Court decisions, 2009's Ashcroft vs. Iqbal and 2007's Bell Atlantic vs. Twombly . The proposed legislation, introduced in the U.S. House of Representatives as the Open Access to Courts Act (H.R. 4115) and in the U.S. Senate as the Notice Pleading Restoration Act (S. 1504), is a profoundly disproportionate reaction to these decisions. Pushed by plaintiffs' lawyers and their allies in Congress, the legislation would dramatically lower federal pleading standards, making it much harder for judges to dismiss meritless lawsuits.

One target of these lawsuits is our cash-strapped state and local governments and school systems. They could be forced to spend millions of taxpayer dollars to deal with frivolous lawsuits filed by disgruntled ex-employees and others. In this struggling economy, is it really fair to force American taxpayers to bear the cost of junk lawsuits?

An example would be the 2008 lawsuit filed by a teacher who accused the New York City Department of Education of violating his First, Thirteenth and Fourteenth Amendment rights by reassigning him after he violated the department's prohibition on unauthorized filming of students. While a U.S. District Court dismissed this lawsuit, the teacher's litigation might have been allowed to proceed had lesser pleading standards been in place. This would have forced New York City, which faces a $5 billion deficit in 2010 and the possible loss of 7,000 jobs in its public schools, to devote scarce funds to fighting this lawsuit.

Law enforcement personnel are another targeted group. Police and corrections officers, border patrol agents and other law enforcement officials already deal with dozens of frivolous lawsuits filed by prison inmates and other criminals. Several advocacy groups are suing the state of Virginia to force state prisons to provide a manual that shows prisoners how to file federal lawsuits. While most of these cases are currently dismissed, the proposed legislation could allow many scurrilous lawsuits to proceed, forcing our law enforcement officials to spend weeks in court defending themselves instead of protecting the public. This is why several police associations wrote letters strongly opposing the legislation.

Finally, we shouldn't forget that the Iqbal case was related to the federal government's post-9/11 anti-terrorism policy. Lower federal pleading standards could lead to frivolous lawsuits by detained terrorists against military, intelligence and federal law enforcement personnel, ranging from guards at detention facilities to the Secretary of Defense or Attorney General.

The plaintiffs' lawyers and other supporters of the legislation argue that the Iqbal and Twombly decisions marked a massive change in federal procedural law. They claim a huge spike in dismissal rates for civil complaints since the decisions. But a close look at the statistics from the Administrative Office of the U.S. Courts shows that dismissal rates have been relatively constant since before the Twombly decision (the earlier of the two decisions). Also, the decisions in the two cases do not break new legal ground; they simply endorse a vast body of lower federal court precedent that forms the basis of what first-year law students learn in civil procedure.

With only a few months remaining in the 111th Congress, the supporters of the legislation will likely make a final attempt at passage. It is crucial that the business community and other affected groups stand together and let Congress know of our concerns about this misguided legislation.