By: J. Douglas Richards
In Bell Atlantic Corp. v. Twombly, the Supreme Court
has thrown litigants and lower courts into confusion, by consigning
to the dustbin, key phraseology from Conley v. Gibson,
which had served as a guiding light on motions to dismiss for half
a century—a motion to dismiss should not granted “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.”
Although some believe that this rejection represents a cataclysmic
change in the legal landscape, other decisions rendered by the
Court since Twombly indicate, however, that fears of a
major legal earthquake are overblown.
The Twombly opinion confines itself narrowly to the
specific question and context presented, and does little to explain
whether or how broadly the standards that it articulates for the
case at hand should be applied in other contexts. The
contention of this Article is that to the extent that
Twombly raises the bar for pleading of a complaint, it
does so only in the very narrow context of (1) antitrust conspiracy
complaints; (2) only when those complaints explicitly rest
allegations of conspiracy on pleaded inferences rather than factual
allegations; (3) in the unique historical context of the
telecommunications industry. Lower courts should not assume
that Twombly supports or portends significant changes in
other contexts, unless and until the Supreme Court so states if a
future case.