Just the Facts
While Congress, the Department of Labor, and the plaintiffs' bar seem intent on pushing the envelope toward new claims and new employer liability, care should be taken to consider the teaching of the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (May 18, 2009). The case involved a Muslim Pakistani pretrial detainee who claimed he had suffered under harsh prison conditions and brought suit against the former Attorney General and the FBI director. The question presented for review was a narrow one: did the plaintiff "plead factual matter that, if taken as true, states a claim that [Ashcroft and Mueller] deprived him of his clearly established constitutional rights." However, the 5-4 ruling by Justice Kennedy applies to all complaints filed in US District Courts, and carries the potential for more rigorous scrutiny of such pleadings given the heightened standard the Court explained.
Iqbal builds on the 2007 precedent established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, which had announced a "flexible 'plausibility standard'" - reciting conclusory statements in the complaint will not always suffice to keep a case alive. In other words, a complaint needs more than legal conclusions - it must provide some factual context, which crosses the line between possibility and plausibility, in order to survive a motion to dismiss. Accordingly, the Court found that two claims in the complaint did not meet that threshold:
(1) that the defendants "knew of, condoned, and willfully and maliciously agreed to subject" [Iqbal] to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race and/or national origin and for no legitimate penological interest"; and
(2) that Ashcroft was "the principal architect" of the policy and that Mueller was "instrumental" in adopting and executing it.
The problem was in the failure of the complaint to explain the chasm between those assertions and the conclusion that the defendants' purpose in formulating the policy was based on race, religion or national origin. Iqbal argued that these issues could be dealt with in the discovery process, the the Court disagreed on grounds that "it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed" just because the plaintiff has put together a complaint which, if all the allegations were proved, might result in liability for the defendant. In the most significant aspect of the decision for employment litigation, the Court warned that it is not enough to claim discrimination; there must be a factual context presented to allow the judge to assess whether the case should be allowed to proceed.
The four dissenters - Justices Souter, Stevens, Ginsburg and Breyer - deemed the majority's analysis "cursory," contending that the two claims discussed above were selected without regard for other concessions made by the defendants. It is instructive to note, however, that whatever concessions a defendant might make in an answer or otherwise are not pertinent to an analysis of the complaint itself. Iqbal stands for the proposition that something is needed beyond leaps of faith to enable a complaint to be answered at all.
How does this lesson apply? Using FLSA litigation as an example, there are plaintiffs' attorneys who file complaints which are formulaic, bare-bones documents in which the changes from one case to another are so minimal as to suggest a simple filling in of the blanks. Often there is no identification of the plaintiff's job, department, or working conditions; instead, there is a simple assertion that the employer violated the law by failing to pay plaintiff (and all those similarly situated) in accordance with the law. Nor are Department of Labor complaints much better (and often, since there is no plaintiff other than the Secretary of Labor, there may be even less detail). Will this become an issue in FLSA litigation? Will plaintiffs' counsel need to be a bit more specific in drafting their complaints? The answer to the first question is clearly yes; the answer to the second will be provided over the next few years, assuming, of course, that there is no revisiting of the subject by the Supreme Court.
Iqbal builds on the 2007 precedent established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, which had announced a "flexible 'plausibility standard'" - reciting conclusory statements in the complaint will not always suffice to keep a case alive. In other words, a complaint needs more than legal conclusions - it must provide some factual context, which crosses the line between possibility and plausibility, in order to survive a motion to dismiss. Accordingly, the Court found that two claims in the complaint did not meet that threshold:
(1) that the defendants "knew of, condoned, and willfully and maliciously agreed to subject" [Iqbal] to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race and/or national origin and for no legitimate penological interest"; and
(2) that Ashcroft was "the principal architect" of the policy and that Mueller was "instrumental" in adopting and executing it.
The problem was in the failure of the complaint to explain the chasm between those assertions and the conclusion that the defendants' purpose in formulating the policy was based on race, religion or national origin. Iqbal argued that these issues could be dealt with in the discovery process, the the Court disagreed on grounds that "it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed" just because the plaintiff has put together a complaint which, if all the allegations were proved, might result in liability for the defendant. In the most significant aspect of the decision for employment litigation, the Court warned that it is not enough to claim discrimination; there must be a factual context presented to allow the judge to assess whether the case should be allowed to proceed.
The four dissenters - Justices Souter, Stevens, Ginsburg and Breyer - deemed the majority's analysis "cursory," contending that the two claims discussed above were selected without regard for other concessions made by the defendants. It is instructive to note, however, that whatever concessions a defendant might make in an answer or otherwise are not pertinent to an analysis of the complaint itself. Iqbal stands for the proposition that something is needed beyond leaps of faith to enable a complaint to be answered at all.
How does this lesson apply? Using FLSA litigation as an example, there are plaintiffs' attorneys who file complaints which are formulaic, bare-bones documents in which the changes from one case to another are so minimal as to suggest a simple filling in of the blanks. Often there is no identification of the plaintiff's job, department, or working conditions; instead, there is a simple assertion that the employer violated the law by failing to pay plaintiff (and all those similarly situated) in accordance with the law. Nor are Department of Labor complaints much better (and often, since there is no plaintiff other than the Secretary of Labor, there may be even less detail). Will this become an issue in FLSA litigation? Will plaintiffs' counsel need to be a bit more specific in drafting their complaints? The answer to the first question is clearly yes; the answer to the second will be provided over the next few years, assuming, of course, that there is no revisiting of the subject by the Supreme Court.
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