Bell Atlantic v. Twombly and Its Aftermath

Until now, a defendant who moved to dismiss faced an uphill battle. Federal courts routinely held that a complaint was sufficient, as long as it provided the defendant with fair notice of the plaintiff's claims. Most courts followed the 'accepted rule' that a complaint should not be dismissed 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-6 (1957). The courts preferred to use discovery, not the pleadings, to weed out frivolous claims. The results were often frustrating for defendants. Armed with almost no facts, a plaintiff could file a complaint, defeat a motion to dismiss, and then go on a protracted and expensive fishing expedition.

All of this began to change last year, when the United States Supreme Court decided Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). Bell Atlantic was a class action alleging an unlawful conspiracy under the antitrust laws. The plaintiffs, subscribers of local telephone and high speed internet services, alleged that the Regional Bell Operating Companies or 'Baby Bells' conspired to restrain trade in two ways: 1) they engaged in parallel conduct intended to prevent independent carriers from competing effectively; and 2) they agreed not to compete with one another. The United States District Court for the Southern District of New York dismissed the complaint, holding that the plaintiffs had failed to plead facts suggesting a conspiracy, but the Second Circuit reversed.