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Bell Atlantic v. Twombly and Its Aftermath

By Linda L. Listrom
January 29, 2008

One of the most important decisions that corporate counsel must make in any case is whether to file a motion to dismiss. While a motion can put an early end to the case, it can also prompt a judge to make damaging pronouncements about the law, without the benefit of a fully developed factual record.

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.

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