Institute Symposium Panel III: Twiqbal Takes Center Stage

By Rebecca Hamburg posted 05-11-2012 02:11 PM


This post recaps the third panel from The Institute's Symposium ("Trial By Jury Or Trial By Motion?: Summary Judgment, Iqbal And Employment Discrimination") at New York Law School on April 23, 2012. Check back for additional posts recapping the keynote and the closing panel!

The third panel of the NYLS/Institute Symposium (“The Interplay of Pleading Standards & Summary Judgment”) shifted the focus of the discussion from summary judgment to pleading standards. Moderated by Professor Suja A. Thomas (Illinois), the panel addressed the impact of recent Supreme Court decisions in
Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on civil litigation, and whether those decisions have made the motion to dismiss the real battleground in employment cases.  A video recording of the panel may be viewed here.

Professor Thomas suggested that in the federal courts today, an assault is being waged against employment cases. She pointed out that after Twombly and Iqbal raised pleading standards and invited courts to scrutinize heavily the facts contained in pleadings, the motion to dismiss is now  “the new summary judgment motion.”

Professor Suzette Malveaux (Catholic University) opened her presentation by pointing out that Iqbal’s extension of the new pleading standard to all civil cases could create special problems for certain types of claims. In cases where the defendant has exclusive control over key information, overcoming a motion to dismiss under the new standard will be more difficult. In employment cases, evidence that goes to proving the defendant’s intent or information about institutional practices that may bear on the question of intent will rarely be available to plaintiffs without discovery. Professor Malveaux contended that the lack of access to discovery will doom many plaintiffs in employment cases.

Professor Elizabeth Schneider (Brooklyn Law School) built on Professor Malveaux’s points and asserted that the Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes was a signal from the Court that its conception of what constitutes actionable discrimination is an exceedingly narrow one.  She referred to a concern expressed nearly two decades ago by Judge (and Professor) Jack Weinstein that procedural reform will become a surrogate for the curtailment of substantive legal rights, and suggested that there is evidence of this in the way the procedural rules are wielded in courts today.

As to Twombly and Iqbal, Professor Schneider stated that the decisions compel judges to engage in what amounts to a return to fact pleading. While some judges are resisting the more extreme readings of Twombly and Iqbal, such isolated actions are insufficient to stem the tide against plaintiffs. Litigants, she suggested, need to engage in more aggressive brainstorming, moot courts, and collaboration with other plaintiffs’ attorneys early on in their cases because they will face a motion that can end their client’s case at a very early stage.

Retired Judge Nancy Gertner, who also appeared on the View From The Bench panel, suggested that the way in which judges handle motions to dismiss will inevitably influence the manner in which they manage later phases of the case. For example, if the judge thinks that the motion to dismiss is a close call, the judge may be less inclined to give the plaintiff the benefit of all inferences when later deciding discovery motions or a motion for summary judgment. Essentially, filing the motion to dismiss allows the defendant to “soften” the judge to later dispositive motions.

Judge Gertner alerted the attendees to Professor Hillary Sale’s work on “Judging Heuristics,” where the author looked at the implications of Congress giving judges the power to scrutinize more heavily a particular type of claim (using the Private Securities Litigation Reform Act as an example). Implicit in such an effort is a message that there must be a problem with those claims. As applied to Twombly and Iqbal, the message is that we should care far more about protecting employers from being falsely accused of discrimination than we should be about allowing discrimination to go unpunished.

In her presentation, Elizabeth Grossman (EEOC Regional Attorney – New York) provided an extremely useful series of suggestions for plaintiffs’ employment lawyers to help them with drafting their pleadings. Ms. Grossman’s guidance was based on the large number of administrative charges and pleadings that she had reviewed during her tenure at the EEOC. She emphasized that every sentence of the pleadings is scrutinized by the court, especially after Twombly and Iqbal.

Ms. Grossman pointed out that Swierkiewicz v. Sorema, 534 U.S. 506 (2002) was not overruled by the Supreme Court in either Twombly or Iqbal, and its more lenient rationale for allowing cases to proceed to discovery should be embraced by plaintiffs and their attorneys. She suggested that defendants are routinely confusing pleading with proof, and that pleading facts sufficient to prove one’s case is not required to survive a motion to dismiss. She also reminded the attendees of the dangers that can arise if one pleads legal theories rather than facts, and provided a series of words and phrases (e.g., “comparator,” “similarly situated,” and “pattern or practice,”) that litigants should generally avoid using in their pleadings.

While providing an intriguing mix of theoretical analysis and practical advice that would be useful for judges, academics and practitioners alike, the panelists did a terrific job highlighting for the attendees the broader trend of, in Professor Malveaux’s words, litigation becoming increasingly “front-loaded.” That this system leaves little or no role for jury trials is perhaps depressingly clear. 

#ContinuingLegalEducation #SummaryJudgment #TheInstitute #IqbalTwombly #TitleVII