See here (Drug & Device Law Blog). There is a ton there, including a discussion of the cases and secondary literature criticizing Twombly/ Iqbal. Here’s a taste:
On the question of Twombly/Iqbal, we’re litigators, not professors, so we don’t have the time or inclination to create fancy theoretical constructs such as “plaintiff neutrality principles.” Effron Article, at 2045-51. Thus, as a rule of thumb for our prescription medical product liability litigation, we go with what we’ll call the “one fact rule.” It’s not particularly elegant, but it works for us. The Court in Aschroft v. Iqbal made a number of points, among them these: (1) Rule 8 “does not require detailed factual allegations,” 129 S. Ct. 1937, 1949 (2009); but it (2) “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation,” id.; which means that (3) “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Thus (4) “only a complaint that states a plausible claim for relief survives a motion to dismiss,” id. at 1950, and to get past Rule 12, the plaintiff has to (5) “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949. Only after that does discovery come into play, since plaintiffs can “not unlock the doors of discovery. . .armed with nothing more than conclusions.” Id. at 1950.
So when we get a complaint, we look to see whether, there’s at least one actual fact pleaded that supports each essential element of a cause of action. A plaintiff can plead more if s/he so pleases, but there has to be at least one – otherwise we’ll probably file a Twombly/Iqbal motion.
Beck et al. even leave time for a solid shot upside the head of academics and their rationale for criticizing Twombly / Iqbal:
We understand that a lot of academics feel that they have to help their students get jobs, or else eventually they won’t have jobs either. Thus, they tend to support anything and everything that results in more, rather than less, litigation. As defense lawyers, we don’t share that mindset. Rather, we agree with the Court in Iqbal, supra, that there’s is no entitlement to discovery, “appropriate” or otherwise, unless the plaintiff can construct a plausible complaint without it.
Go read the whole thing.
