American Law Institute

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American Law Institute American Bar
Association Employment Law Update The
Implications of Iqbal) by Robert B.
Fitzpatrick, Esq. Robert B. Fitzpatrick,
PLLC with research assistance from Aram Farber
of the Philadelphia Bar
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• Ashcroft v. Iqbal
• 129 S. Ct. 1937, 2009 U.S. LEXIS 3472
• May 18, 2009
• Summary of Holding
• In a Bivens action filed against numerous federal
  officials by a Pakistani national detained on
  charges related to the September 11, 2009
  terrorist attacks, the Court held that District
  Courts should dismiss complaints not supported by
  factual allegations sufficient to state a claim
  to relief that is plausible on its face. The
  Court went on to state that threadbare
  recitals of the elements of a cause of action,
  supported by mere conclusory statements, do not
  suffice.
• On this standard, the detainees Bivens complaint
  was dismissed as it was merely premised on
  conclusory statements rather than on factual
  allegations, and the case was remanded to the
  district court to determine whether the detainee
  should be given the opportunity to amend his
  complaint..
• Also, the Court held that this pleading standard,
  previously enunciated in Bell Atlantic v.
  Twombly, 550 U.S. 544 (2007), applies to all
  complaints filed in federal court, including
  claims of intentional discrimination.
• Votes Opinions
• 5-4 decision.
• Majority opinion written by Justice Kennedy.
• 1 dissenting opinion, written by Justice Souter.
• Briefs
• For a copy of all of the briefs and other
  documents in this case, see http//www.scotuswiki
  .com/index.php?titleAshcroft2C_Former_ATT27Y_Ge
  n._v._Iqbal.

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• Ashcroft v. Iqbal
• 129 S. Ct. 1937, 2009 U.S. LEXIS 3472
• May 18, 2009
• For a Sampling of Secondary Sources Discussing
  this Opinion, see
• Andree Sophia Blumstein, An Update on the New
  Federal And Tennessee? Pleading Standard
  Twombly gets Iqbal-ed, 45 Tenn. B.J. 23 (2009).
• A. Benjamin Spencer, Understanding Pleading
  Doctrine, 108 Mich. L. Rev. 1 (2009).
• Kevin M. Clermont, Federal Courts, Practice
  Procedure Litigation Realities Redux, 84 Notre
  Dame L. Rev. 1919 (2009).
• Maxwell S. Kennerly, Ashcroft v. Iqbal Not
  Nearly as Important As You Think, June 29, 2009,
  http//www.litigationandtrial.com/2009/06/articles
  /the-law/for-lawyers/ashcroft-v-iqbal-not-nearly-a
  s-important-as-you-think/.
• Bingham Blog, Ashcroft v. Iqbal Supreme Court
  Affirms and Clarifies the Pleadings Requirements
  and Motion to Dismiss Standards Articulated in
  Bell Atlantic v. Twombly, May 21, 2009,
  http//www.bingham.com/Media.aspx?MediaID8660.

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• Ashcroft v. Iqbal (continued)
• 129 S. Ct. 1937, 2009 U.S. LEXIS 3472
• May 18, 2009
• Legislative Reaction
• The Notice Pleading Restoration Act of 2009 (S.
  1504) (introduced July 22, 2009),
  http//www.govtrack.us/congress/bill.xpd?bills111
  -1504.
• Bahar Dejban, Will the Notice Pleading
  Restoration Act be Enough?, Aug. 24, 2009,
  http//www.consumeradvocatelegalupdate.com/tags/no
  tice-pleading-restoration-ac/.
• ACS Blog, Senator Introduces Bill to Address High
  Court Decisions on Civil Lawsuits, July 24, 2009,
  http//www.acslaw.org/node/13821.
• Michael C. Dorf, Should Congress Change the
  Standard for Dismissing a Federal Lawsuit?, July
  29, 2009, http//writ.news.findlaw.com/dorf/200907
  29.html.
• Briefs
• Robert, L. Abell, JD Supra.com, Lisa Allen v. Bon
  Secours Health System, Inc., et al, Plaintiffs
  Memorandum in Opposition to Defendants Motion to
  Dismiss, Aug. 18, 2009, available at
  http//www.jdsupra.com/post/documentViewer.aspx?fi
  d413ec683-df84-4322-a7f2-aabb0232c92e.

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• Ashcroft v. Iqbal (continued)
• 129 S. Ct. 1937, 2009 U.S. LEXIS 3472
• May 18, 2009
• For examples of cases applying Iqbal in the
  employment law context, see
• Maxey v. Rest. Concepts II, LLC, 2009 U.S. Dist.
  LEXIS 78514 (D. Colo. 2009) and Zawacki v.
  Realogy Corp., 628 F. Supp. 2d 274 (D. Conn.
  2009) (discussing how Iqbal and Gross affect
  pleading in cases brought under the ADEA and
  factually related claims brought under state
  law).
• United States ex rel. Lacy v. New Horizons, Inc,
  et. al., 2009 U.S. App. LEXIS 22294 (10th Cir.
  Oct. 9, 2009) (applying Twombly and Iqbal in a
  False Claims Act and improper discharge case).
• For examples of cases holding or at least
  suggesting that Iqbal also applies to the
  defendants burden in pleading affirmative
  defenses, see
• Sales Board v. Pfizer, 2009 U.S. Dist. LEXIS
  69714 at 19-20 (D. Minn. Aug. 10, 2009) (holding
  that Iqbal applies to affirmative defenses and
  stating that affirmative defenses must be based
  on factual allegations that give rise to the
  relief requested)
• Kaufmann v. Prudential Ins. Co. of Am., 2009 U.S.
  Dist. LEXIS 68800 at 2 (D. Mass. Aug. 6, 2009)
  (holding that the court is inclined to think
  that a defendant has the same Rule 8 obligations
  with respect to notice pleading as does a
  plaintiff)
• Fogel v. Linnemann (In re Mission Bay Ski Bike,
  Inc.), 2009 Bankr. LEXIS 2495 at 15-16 (Bankr.
  N.D. Ill. Sep. 9, 2009) (Affirmative defenses
  are pleadings and so are subject to all pleading
  requirements under the Federal Rules. That means
  affirmative defenses must meet the
  notice-pleading standards of Rule 8(a) as the
  Supreme Court recently interpreted them in Bell
  Atlantic Corp. v. Twombly and Ashcroft v.
  Iqbal)
• Safeco Ins. Co. of Am. v. O'Hara Corp., 2008 U.S.
  Dist. LEXIS 48399 at 1 (E.D. Mich. June 25,
  2008) (Twombly standards apply to affirmative
  defenses)
• Holtzman v. B/E Aerospace, Inc., 2008 U.S. Dist.
  LEXIS 42630 at 2 (S.D. Fla. May 28, 2008)
  (same).

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• Ashcroft v. Iqbal (continued)
• 129 S. Ct. 1937, 2009 U.S. LEXIS 3472
• May 18, 2009
• For examples of cases distinguishing and/or
  criticizing Iqbal, see
• al-Kidd v. Ashcroft, 2009 U.S. App. LEXIS 20000,
  at 37, 71-81 (9th Cir. September 4, 2009) (in
  another case dealing with detainment for
  terrorism-related charges, the Court held that
  the Plaintiff had pled sufficient facts to
  support his claim that his detention violated the
  Fourth Amendment. In dicta, the Court also
  appeared to downplay the importance of Bell
  Atlantic and Twombly by stating that even before
  those cases, it was likely that conclusory
  allegations of motive, without more, would not
  have been enough to survive a motion to
  dismiss.)
• Smith v. Duffey, 576 F.3d 336, 340 (7th Cir. May
  11, 2009) (affirming dismissal of a suit under
  Rule 12(b)(6), because the plaintiffs case would
  have had no merit even before Bell Atlantic or
  Iqbal, but also suggesting in dicta that the
  heightened pleadings standard espoused by Bell
  Atlantic and Iqbal might be limited to complex
  cases with intrusive discovery such as Bell
  Atlantic or to those cases dealing with other
  compelling interests for avoiding litigation,
  such as ensuring that high-level officials are
  granted official immunity for their official
  actions such as Iqbal).
• Tyree v. Zenk, 2009 U.S. Dist. LEXIS 43872, at
  20-21 (E.D.N.Y. May 22, 2009) (holding that,
  unlike in Iqbal, Plaintiff had pled sufficient
  factual allegations to survive a motion to
  dismiss.)

8
The Implications of Ashcroft v. Iqbal for
Employment Lawyersby Aram Farber

• Iqbal has already influenced judicial
  decision-making. See Maxey v. Rest. Concepts II,
  LLC, 2009 U.S. Dist. LEXIS 78514 (D. Colo. 2009)
  and Zawacki v. Realogy Corporation, 628 F. Supp.
  2d 274 (D. Conn. 2009) (discussing the
  application of Iqbal to age discrimination
  cases).

9
Strategy and Tactics after Iqbal

• For strategic purposes, counsel may conclude
  that it is advantageous to bring an action in
  state court rather than, or sometimes in addition
  to, the federal court when that option is
  available. For example, even if a state court
  discrimination claim is removed to federal court
  and dismissed pursuant to Iqbal, the federal
  court may decline to exercise supplemental
  jurisdiction over the state law claim and may
  remand that claim to state court for further
  proceedings. Maxey v. Rest. Concepts II, LLC,
  2009 U.S. Dist. LEXIS 78514 (D. Colo. 2009)
  (finding that the federal and state law
  discrimination claims were premised on different
  sets of operative facts.)
• For more details on Iqbals significance for
  employment lawyers, see Supreme Court Update to
  Defusing Workplace Time-Bombs