By Ettie Ward
Bell Atlantic Corp. v. Twombly was decided by the
Supreme Court on May 21, 2007 and has already been cited more than
7800 times as of March 1, 2008. The majority decision was not
subtle in broadcasting its dissatisfaction with notice pleading, at
least in large, complex, antitrust conspiracy cases, and the
dissent certainly viewed the majority’s holding as a procedural
revolution. The bar and academic community immediately began
to weigh in on the question of whether the “new” standard applies
to all civil cases or merely to antitrust conspiracy cases, with
most commentators concluding that the pleading landscape had
shifted. The trickier questions are likely to revolve around
how to satisfy the new standard in different cases. We have
yet to parse fully the impact of Twombly or how
significant an adjustment to practice it will require, but there
will be a shake-out period where lawyers are doing what lawyers
do—testing the limits and meaning of the new phraseology used by
the Twombly court to measure and test pleadings. This paper
examines the contours of the post-Twombly landscape and
discusses the questions and concerns that are likely to come back
to the Supreme Court.