William & Mary Law Review


Robin J. Effron


Two recent Supreme Court cases have stirred the world of pleading civil litigation. Bell Atlantic Corp. v. Twombly introduced the concept of “plausibility pleading” in which the plaintiff is required to plead facts sufficient to suggest that the claim for relief is “plausible,” and Ashcroft v. Iqbal affirmed that the plausibility standard applies to all aspects of a complaint subject to Rule 8(a) of the Federal Rules of Civil Procedure. This Article examines the consequences of the plausibility standard for pleadings in complex litigation cases. The Article argues that it is unacceptable to automatically equate the existence of a class action with a high cost of litigation—a prominent concern in Twombly and Iqbal—because this reasoning fails to differentiate among types of class actions, to differentiate class actions from other potentially costly types of litigation, and to account for the efficiencies and judicial economy that some class actions are, themselves, supposed to create.

The Article then considers the role of the plausibility standard itself in complex litigation by introducing the plaintiff neutrality principle, which states that when a plaintiff makes neutral allegations concerning her own condition or conduct—that is, subject to inferences of both lawful and unlawful conduct on the part of the defendant—they are not speculative and therefore entitled to a presumption of truth for the purposes of deciding a Rule 12(b)(6) motion to dismiss.

Complex litigation pleadings, like pleadings in ordinary lawsuits, contain allegations of conduct and condition that plaintiffs make about themselves as well as those made about defendants or third parties. This peculiarity of complex litigation pleading creates an additional arena of allegations from which one might attack the factual sufficiency of a complaint: allegations that a named or lead plaintiff makes about other plaintiffs. For this scenario, a group plaintiff neutrality principle addresses how inferences drawn from “neutral” behavior should apply to allegations of class members’ conduct.

The Article concludes by analyzing situations in which the baseline for plaintiff conduct differs because of publicly available data about the condition of a group of plaintiffs, particularly those that are consolidated through multidistrict litigation, rather than as class actions. It concludes that application of the Twombly/Iqbal principle to this context may not be as harmful as application to allegations about defendant conduct because of the plaintiff’s ability to access the relevant information and, if necessary, replead the case.