Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) did not change the pleading standard. That was and is still governed by Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under previous interpretations of this standard, such as that set forth in Conley v. Gibson, 355 U.S. 41, 46-47 (1957), the focus was on keeping the pleading barrier low and on the “short and plain statement” aspect of Rule 8. In Iqbal the court gave renewed vigor to the requirement that the complaint show “that the pleader is entitled to relief.”

Accordingly the court ruled in Twombly that “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements” will no longer suffice. 550 U.S. at 555. In Iqbal, the Court made clear that Twombly’s ruling has general application. 129 S.Ct. at 1949. If Professor Mulligan intends to suggest that Iqbal signals a return to the pre-Rule 8 pleading requirements that mired parties in protracted debates about the technicalities of the complaint, that is not the case. Iqbal recognized that Rule 8 is a “notable and generous departure from the hyper-technical, code pleading regime of a prior era” but at the same time cautioned that the departure was not without bounds and that Rule 8’s requirements do not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id.

Which brings us to the subject of discovery. Professor Mulligan suggests it is not as burdensome as critics suggest and that it is but a fraction of the amounts at stake. Statistics on this issue can be misleading because issues such as how cases are selected for inclusion in a study and whether they were settled to avoid discovery costs will cause wide variations in the results. In antitrust cases, the genesis of Twombly and an area in which I frequently practice, discovery costs are staggering. Once into discovery, plaintiffs can seek every communication relating to pricing from an entire industry for a multi-year time period. That means that every company in the industry needs to advise all of its employees who have anything to do with pricing to preserve all of their documents, expensive e-discovery searches must be undertaken and oftentimes an individual’s files will have to be gone through page-by-page to find responsive documents. All to respond to just a single request. In such cases, discovery can keep substantial teams of lawyers busy for years, literally. This is extraordinarily costly.

Nor are antitrust defendants alone. Just last year the Institute for the Advancement of the American Legal System issued an interim report that was a joint project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System. Among its conclusions, “[d]iscovery costs far too much and has become an end in itself.” “Meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.” In response to the Institute’s survey, “[n]early half of respondents said that notice pleading has become a problem because extensive discovery is required to narrow the claims and defenses and 57 percent said that with notice pleading, motions to dismiss on the pleadings are not effective in limiting claims and narrowing litigation issues.”

Beyond discovery, what I think often gets lost in the analysis is that real people’s lives are affected when they are accused of wrongdoing. A lawsuit gives a veneer of credibility to allegations of wrongdoing and often individuals, or companies, have to live under a cloud for years before the case resolves. When the allegations of wrongdoing are nothing more than conclusory statements asserted with the hope they will open the door to a fishing expedition during discovery, it is right to require more before allowing them to proceed.

Iqbal is a welcome response to these issues. It requires plaintiffs to fulfill their obligation to show that they are entitled to relief, not to just list the elements of a claim as allegations in a complaint. This demands only that a plaintiff show that they have some reasonable basis for believing that they have a legitimate claim. This requirement will focus litigation on the claims with merit and reduce the extraordinary burden of litigation expenses in unmeritorious cases.