'Iqbal' Fails to Find Fan Base at House Judiciary Committee Hearing

Alison Frankel

10-29-2009

On Wednesday, the Judiciary Committee of the U.S. House of Representatives held a hearing called "Access to Justice Denied -- Ashcroft v. Iqbal," on the outsize effect the U.S. Supreme Court's May 2009 ruling has had on civil litigation. The ruling, you'll recall, requires plaintiffs to plead specific factual allegations in their complaints. It has already been cited in almost 3,000 lower court rulings in just five months on the books. (Check here, here and here for our previous coverage of complaints dismissed on Iqbal grounds.)

Given the title of the Judiciary Committee's hearing, it's no shocker that only one witness, former Justice Department Civil Division Assistant AG Gregory Katsas, who will rejoin Jones Day as a partner in November, defended the ruling as "consistent with the vast bulk of prior precedent." Moreover, he warned, overturning Iqbal through the sort of legislative rollback action suggested by Senator Arlen Specter would "open the floodgates" to "intrusive and expensive discovery into implausible and insubstantial claims."

With all the furor over Iqbal, we decided to check in with the lawyer who won the case at the Supreme Court, former U.S. Solicitor General Gregory Garre, who just began life in the private sector at Latham & Watkins. Garre told us that, contrary to reports that called Iqbal a Supreme Court sleeper, "we perceived it to be a very important case all along," not just because the named defendants were former U.S. Attorney General John Ashcroft and former FBI Director Robert Mueller. Garre and his team understood that their case had the potential to establish whether the Court's ruling in Twombly applied only to antitrust cases or constituted a broader interpretation of the Federal Rules of Civil Procedure.

And because the Court's Iqbal opinion specifically addressed the old pleading standard established in a case called Conley, he said, "it was significant in clarifying standards in evaluating the sufficiency of pleading."

We asked Garre if he'd had the opportunity to cite Iqbal in any of the cases he's worked on so far. "I've only been in private practice a month!" he said. Garre added that it's too soon to judge the ruling's true impact. "Only two things are clear," he said. "The decision is being cited an extraordinary number of times by defense counsel. And courts are coming out with decisions on both sides."