# Amicus Curiae Brief — Bell Atlantic Corp. v. Twombly

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0246%3A24

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 544

## Text

8A No. 2 FILED
IN THE OCT 13 2006

Supreme Court of the Anited OF THE CLERK
| SUPREME COURT, U.S.

BELL ATLANTIC CORPORATION, ef ai.,
Petitioners,

Vv.

WILLIAM TWOMBLY, ef a/., Individually and on
Behalf of all others similarly situated,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit

BRIEF OF AMICI CURIAE LEGAL SCHOLARS DEBRA
LYN BASSETT, JOSEPH P. BAUER, JOHN S.
BECKERMAN, KEVIN M. CLERMONT, WILLIAM V.
DORSANEO III, CHRISTOPHER M. FAIRMAN, JACKIE
GARDINA, SUSAN HARTHILL, ALLAN IDES, DANNE L.
JOHNSON, DAVID LEVINE, TYLER T. OCHOA, STEPHEN
A. SALTZBURG, GREGORY C. SISK, JOAN E. STEINMAN,
JEFFREY W. STEMPEL, BETH STEPHENS AND
ELIZABETH G. THORNBURG, AND OF CERTAIN
PURCHASERS OF ELEVATORS AND ELEVATOR
MAINTENANCE SERVICES, INCLUDING TRANSHORN
LTD., ET AL. IN SUPPORT OF RESPONDENTS

MARY JANE FAIT . Eric ALAN ISAACSON *
WOLF HALDENSTEIN ADLER MARK SOLOMON

FREEMAN & HERZ, LLP CHRISTOPHER M. BURKI
55 West Monroe Street, Suite 1111 TAM! FALKENSTEIN HENNICK
Chicago, IL 60603 LERACH COUGHLIN STOIA GELLER
(312) 984-0000 . i RUDMAN & ROBBINS LLP

655 West Broadway, Suite 1900
‘ San Diego, CA 92101

* Counse! of Record . (619) 231-1058

Counsel for Amici Curiae Legal Scholars Debra Lyn Bassett, Joseph P. Bauer,
John S. Beckerman, Kevin M. Clermom, William V. Dorsaneo II].
Christopher M. Fairman, Jackie Gardina, Susan Harthill, Allan Ides,
Danne L. Johnson, David Levine, Tyler 1. Ochoa, Stephen A. Saltzburg.
Gregory C. Sisk, Joan E. Steinman, Jeffrey W. Stempel, Beth Stephens and
Elizabeth G. Thornburg, and for Certain Purchasers of Elevators and
Elevator Maintenance Services, Including Transhorn Ltd, et al

WILSON-EPES PRINTING CO. , INC. = (202) 789-0096 -— WASHINGTON, D.C. 20001

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PETITIONERS’ QUESTION PRESENTED

Whether a complaint states a claim under Section | of the
Sherman Act, 15 U.S.C. §1, if it alleges that the defendants
engaged in parallel conduct and adds a bald assertion that the
defendants were participants in a “conspiracy,” without any
allegations that, if later proved true, would establish the
existence of a conspiracy under the applicable legal standard.

TABLE OF CONTENTS

Page
USES 0 UNIT Orie ssccecedecenscsicierechpicdeimeesocrens i
py) Fas Sy): hy: See emnrER oe iil
ENTERED s OF ARC CURIA .0.cccesvecesoveccsesescovseseeners |
I <iciitticiienisnnphsinhsniibinsichiaahciiciinnieibeaiiinmiiamintini 4

I. NOTICE-PLEADING PRINCIPLES RELIEVE .
PLAINTIFFS OF PLEADING FACTS TO
DEMONSTRATE THEIR CLAIMS. ............:00065 4

A. This Court Holds That Plaintiffs Are Not

B. Notice-Pleading Presumptions Apply With
Particular Force To Antitrust Cases............. 13

C. Notice Pleading Revisited: When Lower
Courts Ignore This Court’s Precedents........ 16

D. Dura Pharmaceuticals Works No Revolu-
tion In Pleading Standards... 21

ll. UNDER FEDERAL RULE OF CIVIL
PROCEDURE 9%b), CONSPIRATORIAL
STATE OF MIND MAY BE AVERRED
GENERALLY WITHOUT SETTING FORTH
ANY FACTS FROM WHICH IT MIGHT BE
STIs hivciintindsiatindanestinllaliintiiininabihactdibeigndisiesiiuha 21

TTY iiiiiichinhiniubishciteechieisilliasappiietesinintintii 26

(ill)

iv
TABLE OF AUTHORITIES
CASES Page
Andrx Pharms., Inc. v. Elan Corp., PLC,
421 F.3d 1227 (11th Cir. 2005) ............ccceeeeeees 20

Associated Gen. Contractors v. Cal. State
Council of Carpenters,

es Ne ED ntchieasidisenecrtinsilttnthinincnabilatnsinn 15
Boston & Maine Corp. v. Town of Hampton,

FOF FB SBo CIRC, Ta pv ceccscsciccctnnsscctssvenice 16
Branch v. Tunnell,

FO Fe SE ee TP evcecsccstniersncesensencneces 19

Breininger v. Sheet Metal Workers
Int'l Ass'n Local Union No. 6,

he Se ee eS 10
Brownlee v. Conine,
Fae Ck See COs CUED cteristactatelacctscinietes ®

Broxmeyer v. Polikoff,
39 Pa. D. & C. 224

(C.P. Phila. County 1940)..............ccccssccesssereeees 23
C.E. Stevens Co. v. Foster & Kleiser Co.,

teh Gf, a ee eee ee 13
Cash Energy, Inc. v. Weiner,

768 F. Supp. 892 (D. Mass. 1991)............ceeee 16
Celotex Corp. v. Catrett,

GFE AEs. BaF ED canibbisinarientceqeniscindeapiennipaitinia 15
Commerzanstalt v. Telewide Sys.,

880 F.2d 642 (2d Cir. 1989) .........ccssserccesscssenees 6
Conley v. Gibson,

Fae Bas G8 COPED ccsehiinttistimininistatnichimiéel passim
Daves v. Hawaiian Dredging Co.,

114 F. Supp. 643 (D. Haw. 1953)... ccc 17
Dickson v. Microsoft Corp.,

309 F.3d 193 (4th Cir. 2002) ..............esccsesseseeees 20

Doe v. Hillsboro Indep. Sch. Dist.,
JR £k tLe | ee 16

Vv

TABLE OF AUTHORITIES—Continued

Page

Dura Pharms., Inc. v. Broudo,

I aioe 21
Elliott v. Perez,

751 F.2d 1472 (Sth Cir. 1985) ........0..ccccceceeeeeeee 16, 17
Estate Constr. Co. v. Miller & Smith

Holding Co.,

fanaa 20
Gladstone, Realtors v. Village of Bellwood,

LS ES 12
H. J. Inc. v. Nw. Bell Tel. Co.,

EES aaa ee eee 10
Hammes v. AAMCO Transmissions,

Rp Ly 19
Harris v. Nelson,

EE EL CEE 5
Hishon v. King & Spalding,

EK Ne 10, 11, 13
Hodgson v. Virginia Baptist Hosp.,

482 F.2d $21 (4th Cir. 1977) ..........ccccecsecsseveceses 7
Hoskins v. Poelstra,

320 F.3d 761 (7th Cir. 2003) ..........cccccccccecceceeees &
Hosp. Bldg. Co. v. Trs. of Rex Hosp.,

I 14, 17
Hutchinson ex rel. Baker v. Spink,

126 F.3d 895 (7th Cir. 1997)............ccccccccesseeeeees 8
In re Enron Corp. Sec., Derivative

& ERISA Litig.,

439 F. Supp. 2d 692 (S.D. Tex. 2006)............... 21
In re GlenFed, Inc. Sec. Litig.,

42 F.3d 1541 (9th Cit. 1994) ooo. ccccccccceeseseseeees 24
In re Tower Air, Inc.,

416 F.3d 229 (3d Cir. 2005) 0... ccceccecceeseeeeee 8, 13

In re Urethane Antitrust Litig.,
409 F. Supp. 2d 1275 (D. Kan. 2005)................ 20

vi

TABLE OF AUTHORITIES—Continued

Page

Ingalls v. Raklios,

21 N.E. 2d 856 (Ill. Ct. App. 1939),

rev'd, 26 N.E. 2d 468 (Ill. Sup. Ct. 1940)......... 23
Karim-Panahi v. Los Angeles Police Dept.,

S59 F.26 621 COGs Cie. 19GB) ..ccccccccccccccsccoscseceses 18
Kimberlin v. Quinlan,

6 F.3d 789 (D.C. Cir. 1993)............ccc.cccccsssserseees 19
Kolupa.v. Roselle Park Dist.,

438 F.3d 713 (7th Cir. 2006) ...0......0..c cece 8
Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit,

954 F.2d 1054 (Sth Cir. 1992)... ee eeeeeeeeeee 17
Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit,

of Sf A eee passim
Love v. Commercial Cas. Ins. Co.,

26 F. Supp. 481 (S.D. Miss. 1939)... 23
Lujan v. Defenders of Wildlife,

Se Gs ED bitintncerqnavtidtprcinccicagmeeniin 11,12, 13
Lujan v. Nat'l Wildlife Fed’n,

ee en ID sachcasdsterntidintncnsitunneiuiniciediiieediin 11,12
Lum v. Bank of Am.,

361 F.3d 217 (3d Cir. 2004) ..........ccccrecescesesseeee 20
MCM Partners v. Andrews-Bartlett & Assocs.,

fk. gf) kg | 19, 20
McLain v. Real Estate Bd.,

Or II tiersiiectesinstctnediasesctiniansitansttnepitd 14
NOW vy. Scheidler,

Se ED eitvintininenagintvsnntnbinpapertans 10, 11, 13
Neitzke v. Williams,

ee BT cirniscecsenittedaninidecimaptanensatneide 10
O'Brien v. Nat'l Prop. Analysts Partners,

936 F.2d 674 (2d Cir. 1991) ...........ccccsececeeseeneees 24

vil
TABLE OF AUTHORITIES—Continued

Page

Palmer v. Board of Education,

46 F.3d 682 (7th Cir. 1995)... ccceeceeeeneeeees 7, 8,27

Poindexter v. Nat'l Mortgage Co.,

No. 94 C 5814, 1995 U.S. Dist. LEXIS 5396

OS Oe 19
Poller v. CBS,

Lk ee ee 14
Ross v. A. H. Robins Co.,

607 F.2d 545 (2d Cir. 1979) ............ccccesccerseneeee 24
Sanjuan v Am. Bd. of Psychiatry &

Neurology, Inc.,

40 F.3d 247 (7th Cir 1994) 00. cccceeeeeeeeeeeeees 7,11
Sargeaunt v. Cardiff Junction Dry Dock Co.,

ee le niche diicisnctintnsieesigiininatvinipiaigcimcutis 23
Scheuer v. Rhodes,

Ss ee itenccenctngcteriemmins 10, 11, 16
Shah v. County of Los Angeles,

797 F.2d 743 (9th Cir. 1986) ........cccceeeceeeeeeee 18
Sparks v. England,

113 F.2d 579 (8th Cir. 1940) 22.00... eeceeeeeeseeeee 9
Sutliff, Inc. v. Donovan Cos., é;

727 F.2d 648 (7th Cir. 1984)... 16, 17, 19, 20
Swierkiewicz v. Sorema N.A.,

ee ele Se etietiiticctdecpetecenennntennacondenecis passim
Syncsort v. Sequential Software, Inc..,

50 F. Supp. 2d 318 (D.N.J. 1999)... ccceccceeeees passim
Thomson v. Washington,

362 F.3d 969 (7th Cir. 2004) ..........cccccecceeseeseees 7
United States v. LSL Biotechnologies,

379 F.3d 672 (9th Cir. 2004) ............cccccsesesseeee 20

Whalen v. Ford Motor Credit Co.,
684 F.2d 272 (4th Cir. 1982) ............-ccccesccseseeees 6

vill

TABLE OF AUTHORITIES—Continued

Page

Zahn v. Int'l Paper Co.,

oe eee 6

STATUTES, RULES AND REGULATIONS

15 U.S.C.

STII tiie ieiciitedhcalindsshtgulindighaisiiuaninbetineltinniatids 25

ne cisdiliiciceadineaeihiisaniiiniea calaidisitlimecansisdmabiontaiaidelie 25

SIU ivicitncemnnieiesttptiasemalilienitasinindnisitentntditiiédin 25

IIIT cide lesbiniishctletacsthasitacacbiitaantiisediietcatainliipeapesiiciiesi 25
18 U.S.C.

SESE ae ee Rear wee veteres wae n Seam 12

SETI irennsociucentipndietipamnancanidblatunteenciintiaiiitndteie 12
42 USC.

TIT iansiicniinstininhiseasnitaipabiclacittechtihideeestilisiatmcentenilalan 17
Federal Rules of Civil Procedure

er MOOR man wae aed Sa NO ade 2

| REI RE E 2 SE IONS Beene NS “SO 4, 20, 22

EERE RRs. SOAP SSS See Mere 5, 7, 20

| RET ee ON ee passim

TES I RENNES eT aE =D 26

I CID ichilititdiniticesbicasieenmitadningdttaaalaitemncliclabiantiin 26

SI dilndessieaesideineninibtnepiineesiieadoitaliptetnenniebisendiniintnnes 11

UNI SII iiidsscichicstemsegtinisnnittieiaishaiinieandtpaieediitiiuni 12
Rules of the Supreme Court of the United States

NE IEC II iii cil dares isecdeeteeiieiicianiinnghintidaniieenigiin 4

SECONDARY AUTHORIZIES | ef

John Avery, Securities Litigation Reform: The
Long and Winding Road to the Private Secur-
ities Litigation Reform Act of 1995,

ix
TABLE OF AUTHORITIES—Continued

Page

Paul D. Carrington, Virtual Civil Litigation: A

Visit to John Bunyan’s Celestial City,

98 Colum., L. Rev. 1516 (1998)..........cccceseescees 6
Charles E. Clark, Simplified Pleading,

CP Ee 5,6, 7,8
Charles E. Clark, Handbook of the Law of Code

Pleading,

Eero ene passim

Charles E. Clark, The New Federal Rules of
Civil Procedure: The Last Phase—Underlying .
Philosophy Embodied in Some of the Basic
Provisions of the New Procedure,
ye eS 8g: ee 6
Charles E. Clark, The Proposed Federal Rules of
Civil Procedure,

Be Fey tic PD i cntnntsecechetnicnieneitiiteesaninne 6.
Charles E. Clark, The Handmaid of Justice,
SS Wass. U.L.G. 297 (19SB) ..ccccesocscesccccsscosenee: 6

The Complaint Under the Federal Rules of Civil
Procedure,
10 Fordham L. Rev. 252 (1941) ..........ccccccceeeeeee 9
Palmer D. Edmunds, The New Federal Rules of
Civil Procedure,
4 John Marshall L.Q. 291 (1938) ............0..0.00. 7
Christopher M. Fairman, An Invitation to the
Rulemakers —Strike Rule 9(b),

38 U.C. Davis L. Rev. 281 (2004)........000..0000... 22
Cfristopher M. Fairman, Heightened Pleadingy -
81 Tex. L. Rev. 551 (2002) ....cs.c.cssssssssssssceseess 7, 16, 19

Christopher M. Fairman, The Myth of Notice
Pleading, |
45 Ariz. L. Rev. 987 (2003)..........:cccceeees 15, 16, 19, 20

x
TABLE OF AUTHORITIES—Continued

William S. Lerach & Eric Alan Isaacson, Plead-
ing Scienter Under Section 21D(b)(2) of the
Securities Exchange Act of 1934: Motive,
Opportunity, Recklessness, and the Private
Securities Litigation Reform Act of 1995,
33 San Diego L. Rev. 893 (1996)............:ccceee 24, 25
Richard L. Marcus, The Puzzling Persistence of
Pleading Practice,

76 Tex. L. Rev. 1749 (1996) .....cerscosssvcsesceseceses 19, 24
Richard L. Marcus, The Revival of Fact Pleading
Under the Federal Rules of Civil Procedure,

86 Colum. L. Rev. 433 (1986)... 6, 24
Minutes of the Advisory Committee on Federal
Rules of Civil Procedure,

1993 WL 761148 (Oct. 21, 1993)......ccccccceseeees 18
Rules of Civil Procedure, ;
PR Re eas 22, 23

Hillary Sale, Heightened Pleading and Discovery

Stays: An Analysis of the Affect of the PSLRA's

Internal Information Standard on '33 and 34

Act Claims,

2, 2% %.),. Sie 25-26
Michael E. Smith, Judge Charles E. Clark and

the Federal Rules of Civil Procedure,

8 eS eee 6
5 Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure: Civil 3d

§1202 91 Gd — Se seaman 5, 20

IN THE

Supreme Court of the United States

BELL ATLANTIC CORPORATION, ef al.,
Petitioners,

v.
WILLIAM TWOMBLY, e? al., Individually and on
Behalf of all others similarly situated,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit

BRIEF OF AMICI CURIAE LEGAL SCHOLARS DEBRA
LYN BASSETT, JOSEPH P. BAUER, JOHN S.
BECKERMAN, KEVIN M. CLERMONT, WILLIAM V.
DORSANEO III, CHRISTOPHER M. FAIRMAN, JACKIE
GARDINA, SUSAN HARTHILL, ALLAN IDES, DANNE L.
JOHNSON, DAVID LEVINE, TYLER T. OCHOA, STEPHEN
A. SALTZBURG, GREGORY C. SISK, JOAN E. STEINMAN,
JEFFREY W. STEMPEL, BETH STEPHENS AND
ELIZABETH G. THORNBURG, AND FOR CERTAIN
PURCHASERS OF ELEVATORS AND ELEVATOR
MAINTENANCE SERVICES, INCLUDING TRANSHORN
LTD., ET AL. INSUPPORT OF RESPONDENTS
INTEREST OF AMICI CURIAE '

Amici filing this brief comprise two distinct groups: (1) legal
scholars and law professors with an academic interest in

‘No counsel for any party before the Court in this proceeding has
authored this brief or any portion of it. As noted in text, counsel of record
represent several of the amici as plaintiffs-appellants in a case currently
pending before the United States Court of Appeals for the Second Circuit.
See In re Elevator Antitrust Litig., No. 06-3128-cv (2d Cir.), on appeal
from In re Elevator Antitrust Litig., No. 04-cv-01178 (TPG) (S.D.N.Y.).
They may ultimately seek compensation in that case for the work and
expenses incurred in preparing this brief.

2

sound development of procedural law having no financial
interest in the outcome of this case, and (2) purchasers of —
elevators and elevator maintenance services who are currently
litigating antitrust claims in the Second Circuit.

The amici who are legal scholars teach, write about, or
have an interest in Federal Civil Procedure. They care deeply
about the fundamental principles underlying the pursuit of
justice in the American legal system, and are committed to
ensuring that procedural law continues to develop in
accordance with those principles. They have a strong interest
in assisting this Court to interpret the law in a way that is
consistent with both the Federal Rules of Civil Procedure’s
text and their underlying purpose—‘to secure the just,
speedy, and inexpensive determination of every action.” Fed.
R. Civ. P. 1. They have no interest in the outcome of this
litigation except as it pertains to these cor cerns.

The academic amici are:

Debra Lyn Bassett, Loula Fuller and Dan Myers Professor
of Law, Florida State University College of Law;

Joseph P. Bauer, Professor of Law, Notre Dame Law
School;

John S. Beckerman, Associate Dean for Academic Affairs,
Rutgers School of Law-Camden;

Kevin M. Clermont, James and Mark Flanagan Pistheoen
of Law, Cornell Law School;

William V. Dorsaneo III, Chief Justice John and Lena.
Hickman Distinguished Faculty Fellow and Professor of Law,
Southern Methodist University Dedman School of Law;

Christopher M. Fairman, Visiting Professor of Law, Emory
University School of Law, Associate Professor of Law, The
Ohio State University Moritz College of Law;

Jackie Gardina, Associate Professor of Law, Vermont Law
School;

.
Susan Harthill, Assistant Professor of Law, Florida Coastal
School of Law;

Allan Ides, Professor of Law and William M. Rains
Fellow, Loyola Law School (Los Angeles);

Danne L. Johnson, Assistant Professor of Law, Oklahoma
City University School of Law;

David Levine, Professor of en Senay of California
Hastings College of the Law;

Tyler T. Ochoa, Professor of Law, Santa Clara University
School of Law;

Stephen A. Saltzburg, Wallace and Beverly Woodbury
‘University Professor of Law, The George Washington
University Law School;

Gregory C. Sisk, Professor of Law, University of St.
Thomas School of Law;

Joan E. Steinman, Distinguished Professor of Law, Chicago-
Kent College of Law, Illinois Institute of Technology;

Jeffrey W. Stempel, Doris S. & Theodore B. Lee Professor
of Law, University of Nevada, Las is oc William S: Boyd
School of Law;

Beth Stephens, Professor of Law, Rutgers School of Law-
Camden; and

Elizabeth G. Thornburg, Professor of Law, Southern
Methodist University Dedman School of Law.

Finally, the following amici are purchasers of elevators and
elevator maintenance services, who are serving as repre-
sentative plaintiffs in an antitrust action currently pending
before the United States Court of Appeals as /n re Elevator
Antitrust Litigation, No. 06-3128-cv (2d Cir.), a case in which
briefing is likely to be completed after the scheduled oral
argument in this matter: Transhorn, Ltd.; 1775 Housing
Associates; Triangle Housing Associates L.P.; Rochdale

4

Village, Inc.; Birmingham Building Trades Towers, Inc.;
Riverbay Corp.; D.F. Chase, Inc.; Towers of Coral Springs
Ltd.; 181 Maple Avenue Associates; Lenox Road Associates;
Olen Commercial Realty Corp.; Bay Crest Condominium
Ass’n; Joseph M. Bennardi d/b/a Nedmac Associates, [nc.;
and Joseph M. Bennardi d/b/a Building Supers of Camden,
Inc. These amici have an interest in the outcome of this case
because it may constitute a controlling precedent for the
pleading standards in their own antitrust case.

On August 18, 2006, the parties filed written consent with
this Court to the filing of amicus curiae briefs, including this
brief. See S. Ct. Rule37.3(a).

ARGUMENT

I. NOTICE-PLEADING PRINCIPLES RELIEVE
PLAINTIFFS OF PLEADING FACTS TO
DEMONSTRATE THEIR CLAIMS

Petitioners’ Brief presents the case as one that turns upon
general pleading rules—which they contend require detailed
fact pleading. Their Argument opens: :

This Court’s decisions establish two fundamental
pleading rules that bear decisively on this case. First, a
complaint must allege facts, not merely conclusions, that
show the plaintiff is entitled to relief under the gov-
erning substantive law. Second, it is the facts alleged,
not alleged facts that the plaintiff might later prove, that
must support the claim to relief.

Petitioners’ Brief at 16. Petitioners’ central contention is
stated bluntly in their Argument’s subheading I.A.: “Rule 8
Requires Pleading of Facts, Not Mere Conclusory Assertions,
To Support a Plaintiff's Claim.” /d.

Petitioners’ argument runs counter to this Court’s long-
standing notice-pleading decisions, which all hold that plain-
tiffs need only provide the short statement required by

5

Federal Rule of Civil Procedure 8(a) to place defendants on
notice of the nature of the claims against them—without
providing the facts and evidence that might ultimately be
used to prove those claims. Petitioners’ argument also runs
counter to the very purpose of the Federal Rules of Civil
Procedure which were designed to replace both the techni-
calities of common law pleadings and the detail of “code” or
“fact-pleading” with a new regime of simplified notice plead-
ing. See generally Charles E. Clark, Simplified Pleading, 2
F.R.D. 456, 456-67 (1943); Charles E. Clark, Handbook of
the Law of Code Pleadings §38, at 241-43 (2d ed., 1947).

“Under the codes the emphasis was placed on developing
the facts through the pleadings.”” The Federal Rules’ framers
rejected that approach for one that requires a pleading only to
give “the opposing party fair notice of the nature and basis or
grounds of the pleader’s claim and a general indication of the.
type of litigation that is involved.”?

It was the design-of the rulemakers that the discovery
procedures should give the parties an opportunity for
securing an elaboration of the allegations and that
process and not the pleadings bears the burden of filling
in the details of the dispute for the parties and the court.
In federal practice, the test of a complaint’s sufficiency
simply is whether the document’s allegations are de-
tailed and informative enough to enable the defendant to
respond.‘

Judge Charles E. Clark, who as Dean of the Yale Law
School “served as Reporter of the Advisory Committee on the
Federal Rules,” is widely recognized as the Rules’ “principal

?'§ Charles Alan Wright & Arthur R. Miller, Federal Practice & Pro-
cedure: Civil 3d §1202, at 91 (3d ed. 2004).

* Id., §1215, at 172-73.
* Id., §1215, at 174-93.
* Harris v. Nelson, 394 U.S. 286, 290 n.1 (1969).

6

architect,”° and has even been called their “father.”’ He
explained that the goal for pleadings is to “emphasize only
the setting forth of the factual situation as a whole,” and not
“all the fine details” or evidentiary facts that may be needed
to prove the claim.* The Rules’ framers understood that even
‘in the simplest negligence case, where percipient witnesses
viewed an automobile accident,

the testimony of even honest eyewitnesses may vary or
conflict, and a slight difference in the timing of events,
such as when a pedestrian stepped into the street in front

® Zahn v. Int'l Paper Co., 414 U.S. 291, 296-97 (1973) (Clark “a prin-
cipal architect”).

” Commerzanstalt v. Telewide Sys., 880 F.2d 642, 646 (2d Cir. 1989)
(quoting M. Schick, Learned Hand's Court 30-31 & n.81 (1970)); see
Richard L. Marcus, The Revival of Fact Pleading Under the Federal
Rules of Civil Procedure, 86 Colum. L. Rev. 433, 433 (1986) (“As Dean
of Yale Law School and reporter of the committee that drafted the Federal
Rules of Civil Procedure, Charles Clark was the principal architect of the
Rules and leading proponent of the liberal ethos that underlies them.”);
Michael E. Smith, Judge Charles E. Clark and The Federal Rules of Civil
Procedure, 85 Yale L. J. 914, 915 (1976) (“he was principally responsible
for the drafting of the Federal Rules, which became law in 1938.”); Paul
D Carrington, Virtual Civil Litigation: A Visit to John Bunyan’s Celestial
City, 98 Colum. L. Rev. 1516, 1518 & n.10 (1998) (noting that the
movement to reform the Federal Rules “was led by Charles Clark and his
associates, who drafted the Federal Rules of Civil Procedure promulgated
in 1938”); Whalen v. Ford Motor Credit Co., 684 F.2d 272, 277 (4th Cir.
1982) (“Clark, as reporter [was] necessarily the member most familiar
with the rules.”).

* Clark, Simplified Pleading, 2 F.R.D. at 457; see also Charles E.
Clark, The New Federal Rules of Civil Procedure: The Last Phase—
Underlying Philosophy Embodied in Some of the Basic Provisions of the
New Procedure, 23 A.B.A. J. 976, 977 (1937) (Moreover, through the
weapons of discovery and summary judgment we have developed new
devices, with more appropriate penalties to aid in matters of proof, and do
not need to force the pleadings to their less appropriate function.”);
Charles E. Clark, The Proposed Federal Rules of Civil Procedure, 22
A.B.A. J. 447, 449-50 (1936); Charles E. Clark, The Handmaid of Justice,
23 Wash. U.L.Q. 297, 316 (1938). _

7

of an approaching car, may be absolutely decisive. A
lawyer, therefore, cannot safely or wisely restrict the
case he offers to prove before he knows what the
testimony will actually show.

Clark, Simplified Pleading, 2 F.R.D. at 457.

Even in the simplest of cases, a lawyer cannot, in fine,
plead all the facts that ultimately will be needed to prove a
case. /d. Much less can he do so when the case turns on a
- complex conspiracy, rather than a simple tort.” Summarizing
the then-new “notice pleading” in 1938, Commissioner
Palmer D. Edmunds wrote: “The idea is that you are not to
be compelled to state a cause of action giving all of the
elements which we now think necessary to a case. All that
should be needed is an informal statement of what you are
suing about.” Palmer D. Edmunds, The New Federal Rules of
Civil Procedure, 4 John Marshall L.Q. 291, 298 (1938). -

Petitioners ask this Court to require much more—the
pleading of facts to support a claim. But that is a requirement
that the Federal Rules’ framers deliberately eliminated to
‘mark a clear departure from past pleading practice. In Rule
‘8(a), “the drafters of the Federal Rules substituted the word
‘claim’ for ‘cause of action,’ dropped the requirement that the
complaint allege ‘facts,’ and expanded discovery proce-
dures,” to ensure that a claim may be simply stated with the
critical facts to be developed in discovery. Hodgson v.
Virginia Baptist Hosp., 482 F.2d 821, 823 (4th Cir. 1977).
“Any need to plead facts that, if true, establish each element
of a ‘cause of action’ was abolished by the Rules of Civil
Procedure in 1938.” Sanjuan v Am. Bd. of Psychiatry &
Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (Easter-
brook, J.). Simply put: “The federal rules replaced fact
pleading with notice pleading.” Thomson v. Washington,
362 F.3d 969, 970 (7th Cir. 2004) (Posner, J.); see also

* See, e.g., Palmer v. Bd. of Educ., 46 F.3d 682, 688 (7th Cir. 1995).

—_.

8

Christopher M. Fairman, Heightened Pleading, 81 Tex. L. R.
551, 556 (2002).

The Rules’ chief architect explained: “By omitting any
reference to ‘facts’ the Federal Rules have avoided one of the
most controversial points in code pleading.” Clark, Hand-
book of the Law of Code Pleading §38 at 242. “This
departure from the traditional code-pleading requirement has
been liberally applied by the courts and lauded by the legal
writers,” Judge Clark noted in 1947. Jd. at 242-43. Sound
decisions follow it still: “Complaints need not plead facts . . . .
It is enough if the complaint puts the defendants on notice of
the claim and that some set of facts could be presented that
would give rise to a right ‘9 relief.” Hutchinson ex rel. Baker
v. Spink, 126 F.3d 895, 900 (7th Cir. 1997)."°

Demanding particularized facts, the Rules’ framers under-
stood, “leads to a waste of time while counsel and court
attempt to pursue the will-o’-the wisp of pleading certainty,”
and it far too “often leads to a denial of justice,” when
meritorious claims are dismissed on the pleadings. Clark,
Simplified Pleading, 2 F.R.D. at 457-458. That is why this
Court’s precedents allow a plaintiff to proceed who may be
able to prove any set of facts to support the claim asserted.

' Accord, e.g., Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th
Cir. 2006) (“complaints need not plead facts and need not narrate events
that correspond to each aspect of the applicable legal rule” to survive a
motion to dismiss); /n re Tower Air, Inc., 416 F.3d 229, 237 (3d Cir.
2005) (“By requiring [a plaintiff] to allege specific facts, the District
Court erroneously preempted discovery on certain claims by imposing a
heightened pleading standard not required by Federal Rule of Civil
Procedure 8.”); Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003)
(“Rule 8 does not require—or permit district judges to require—fact
pleading.”); Palmer, 46 F.3d at 688 (“[c]omplaints need not plead facts”);
Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992) (“The Federal
Rules of Civil Procedure establish a system of notice pleading rather than
of fact pleading, so the happenstance that a complaint is ‘conclusory,’
whatever exactly that overused lawyers’ cliche-means, does not automati-
cally condemn it.” (citation omitted)). ;

9

A. This Court. Holds That Plaintiffs Are Not
Required To Plead Facts Establishing Their
Claims

Since the Federal Rules of Civil Procedure took effect in
1938, replacing both common-law pleading and code or “fact
pleading” with the new rule of notice pleading, this Court has
had many occasions to reiterate that plaintiffs are entitled to
plead a case without detailing the facts that ultimately may be
used to prove it. Rather, a claim is sufficient if a plaintiff

might prove any set of facts that would entitle it to relief.

In Conley v. Gibson, 355 U.S. 41, 45-46 (1957), this Court
held that “[{i]n appraising the sufficiency of the complaint, we
follow, of course, the accepted rule that a complaint should
not be dismissed for failure to state a claim 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.”"'
Thus, there must be enough factual detail for the defendants
to understand the nature of the case against them, and for the
Court to hypothesize that some set of facts might be proved to
warrant relief. But that is all. The respondents in Conley had
argued “that the complaint failed to set forth specific facts to
support its general allegations of discrimination and that its
dismissal [was] therefore proper.” Conley, 355 U.S. at 47.
“The decisive answer to this,” this Court bluntly held, “is that
the Federal Rules of Civil Procedure do not require a

'' Id. at 45-46 (emphasis added). This was, as Conley noted, clearly
“the accepted rule.” /d. Early decisions were emphatic: “The Rules of
Civil Procedure do not require that a plaintiff shall plead every fact
essential to his right to recover the amount of which he claims . . . . If it is
conceivable that, under the allegations of his complaint, a plaintiff can,
upon trial, establish a case which would entitle him to the relief prayed
for, a motion to dismiss for insufficiency of statement ought not to be
granted.” Sparks v. England, 113 F.2d 579, 581-82 (8th Cir. 1940); see
The Complaint Under the Federal Rules of Civil Procedure, \0 Fordham
L. Rev. 252, 258-59 (1941) (quoting Sparks), Clark, Handbook of the Law
of Code Pleading, § 38 at 242-43 & nn.104-105.

10

claimant to set out in detail the facts upon which he bases his
claim.” Id. (emphasis added). This Court found a claim
under the Railway Labor Act sufficiently stated by employing
conclusory or “general” allegations of discrimination. /d.
Whether facts existed to flesh out and sustain those claims
would have to be left to discovery. See id.

Nearly. two decades later, in Scheuer v. Rhodes, 416 U.S.
232, 236 (1974), this Court held again that a complaint cannot
be dismissed because the plaintiff fails to plead facts showing
that he or she will likely prevail. “Indeed it may appear on
the face of the pleadings that a recovery is very remote and
unlikely but that is not the test,” the Court concluded,
reiterating Conley’s rule that “‘a complaint should not be
dismissed for failure to state a claim 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.” Jd at 236
(quoting Conley, 355 U.S. at 45-46).

_In Hishon v. King & Spalding, 467 U.S. 69 (1984), this
Court reiterated once more: “A court may dismiss a com-
plaint only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the
allegations.” /d. at 73 (citing Conley, 355 U.S. at 45-46)
(emphasis added). And this is the standard that it has consis-
tently applied—that a complaint cannot be dismissed if relief
could be granted “under any set of facts” that the plaintiff
might prove. See, e.g., Swierkiewicz v. Sorema N.A., 534
U.S. 506, 514 (2002) (quoting Hishon); NOW v. Scheidler,
510 U.S. 249, 256 (1994); H. J, Inc. v. Nw. Bell Tel. Co., 492
U.S. 229, 249-50 (1989) (quoting Hishon); Neitzke v. Williams,
490 U.S. 319, 327 (1989) (quoting Hishon); see also Brein-
inger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6,
493 U.S. 67, 98-99 (1989) (Stevens, J., joined by Scalia, J.,
concurring and dissenting in part) (quoting Hishon).

These decisions, allowing plaintiffs to proceed if “any set
of facts” might be proved entitling them to relief, surely

11

foreclose Petitioners’ argument that “it is the facts alleged,
not unalleged facts that the plaintiff might later prove, that
must support the claim to relief.” Petitioners’ Brief at 16. If
a plaintiff might later prove “any of set facts” supporting the
claim presented, then the complaint must not be dismissed.
Hishon, 467 U.S. at 73; accord Scheuer, 416 U.S. at 236;
Conley, 355 U.S. at 45-46. “At this stage the plaintiff
receives the benefit of imagination, so long as the hypotheses
are consistent with the complaint,” as Judge Frank Easter-
brook has aptly observed. Sanjuan, 40 F.3d at 251 (Easter-
brook, J., citing Conley). “Matching facts against legal
elements comes later.” /d. |

This Court restated this notice-pleading rule in Lujan v.
National Wildlife Federation, 497 U.S. 871, 889 (1990), in
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), and
in NOW, 510 U.S. at 256. All three decisions reaffirmed
“that ‘at the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support the
claim."” NOW, 510 U.S. at 256 (quoting and following
Defenders of Wildlife, 504 U.S. at 561 (quoting and following
National Wildlife Federation, 497 U.S. at 889)).

The Court’s decisions draw a sharp distinction between
pleading a claim, when general or conclusory allegations
suffice, and proving it—when facts are required. National
Wildlife Federation and Defenders of Wildlife both held that
to survive a Rule 56 motion for summary judgment the plain-
tiff must present specific facts supporting its claim. This, the
Court emphasized, was in direct contrast to the requirements
of 12(b)(6), that general allegations suffice, with any specific
' facts that might be needed to support the claim presumed.
See Nat'l Wildlife Fed'n, 497 U.S. at 889 (citing Conley, 355
U.S. at 45-46). In Defenders of Wildlife this Court explained:

12

At the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we “presume that
general allegations embrace those specific facts that are
necessary to support the claim.” National Wildlife
Federation, supra, [497 U.S.] at 889. In response to a
summary judgment motion, however, the plaintiff can no
longer rest on such “mere allegations,” but must “set
forth” by affidavit or other evidence “specific facts,”
Fed. Rule Civ. Proc. 56(e), which for purposes of the
summary judgment motion will be taken to be true. And
at the final stage, those facts (if controverted) must be
“supported adequately by the evidence adduced at trial.”
[Gladstone, Realtors v. Village of Bellwood, 441 U.S.
91, 115 n. 31 (1979)}.

Defenders of Wildlife, 504 U.S. at 561. Clearly, a plaintiff is
not required to plead the facts that will later be required either
to survive a summary judgment motion, or to prevail at trial.

Indeed, in NOW, the Court applied these principles to a
motion to dismiss. Women’s health clinics alleged that anti-
abortion activists had “conspired to use force to induce clinic
staff and patients to stop working and obtain medical services
elsewhere.” NOW, 510 U.S. at 256. Tracking RICO’s
statutory text, and in rather conclusory fashion, the “[p]eti-
tioners claimed that this conspiracy ‘has injured the business
and/or property interests of the [petitioners]."” Jd. at 256
(quoting complaint); compare 18 U.S.C. §1964(c) (“Any
person injured in his business or property by reason of a
violation of section 1962 of this chapter may sue there-
Diwace

Although the lower courts had dismissed the case, this
Court reversed, explaining:

We have held that “at the pleading stage, general
factual allegations of injury resulting from the defen-
dant’s conduct may suffice, for on a motion to dismiss
we presume that general allegations embrace those

13

specific facts that are necessary to support the claim.”
[Defenders of Wildlife, 504 U.S. at 561] (citations
omitted). The District Court dismissed petitioners’
claim that the pleading stage pursuant to Federal Rule of
Civil Procedure 12(b)(6), so their complaint must be
sustained if relief could be granted “under any set of
facts that could be proved consistent with the
allegations.” [Hishon, 467 U.S. at 73].

NOW, 510 U.S. at 256 (emphasis added).

Thus, where a complaint states a potentially valid claim,
the question is not whether facts necessary to support that
claim have been pleaded, but whether “any set of facts”—
whether or not specifically pleaded—might ultimately be
proved that would entitle the plaintiff to relief. The plaintiff
need not allege a specific fact for each element of the
claim. Jn re Tower Air, 416 F.3d at 237.

B. Notice-Pleading Presumptions Apply With Par-
ticular Force To Antitrust Cases

Petitioners’ contention that antitrust claims must meet .a
heightened standard are flatly at odds with this Court’s
controlling precedents. For this Court has repeatedly em-
phasized that notice-pleading principles apply with particular
force to antitrust cases.

This Court’s first opinion reviewing the sufficiency of a
complaint following the adoption of the Federal Rules upheld
general allegations of a conspiracy to drive billposting
companies out of business in violation of the Sherman Act.
The plaintiff charged that it “‘has been damaged in that its
business was rendered unprofitable, and the profits of its said
trade and commerce have diminished, and the plaintiff
company has suffered loss and been damaged thereby.”” C.E.
Stevens Co. v. Foster & Kleiser Co., 311 U.S. 255, 261
(1940). “While these allegations are general,” this Court
held, “we cannot say that they are inadequate,” excusing

14

antitrust claimants from any requirement of pleading partic-
ularized facts. /d.

In Hospital Building Co. v. Trustees of Rex Hospital, 425
U.S. 738, 746 (1976), this Court held that dismissal at the
pleading stage should be granted “very sparingly” in antitrust
cases because “the proof is largely in the hands of the
alleged conspirators’” (quoting Poller v. CBS, 368°U.S. 464,
473 (1962)). The Court explained:

We have held that “a complaint should not be dis-
missed for failure to state a claim 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, 355 U.S. at 45-46] (footnote omitted).
And in antitrust cases, where “the proof is largely in
the hands of the alleged conspirators,” [Poller, 368
U.S. at 473], dismissals prior to giving the plaintiff
ample opportunity for discovery should be granted very
sparingly.

Hospital Bldg. Co., 425 U.S. at 746.

In McLain v. Real Estate Board, 444 U.S. 232 (1980), this
Court deemed it “axiomatic 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,” holding once again that this rule of
notice pleading applies “with no less force to a Sherman Act
claim.” /d at 246 (quoting Conley, 355 U.S. at 45-46).
Petitioners’ contenticn that plaintiffs must meet a heightened
standard for antitrust claims is flatly inconsistent with this
Court’s precedents.

Petitioners make much of a footnote of dictum from Asso-
ciated General Contractors v. California State Council of
Carpenters, 459 U.S. 519, 528 n.17 (1983), which dealt with
claims of a construction workers’ union that the antitrust laws
were violated when members of a multi-employer association
allegedly coerced their own customers and competitors to

15

give business to nonunion firms. See id. at 528 n.17;
Christopher M. Fairman, The Myth of Notice Pleading, 45
Ariz. L. Rev. 987, 1013 (2003). This Court held that “the
Court of Appeals properly assumed that such coercion might
violate the antitrust laws,” but that the union, which was not
directly injured by the alleged conspiracy, was not the proper ©
plaintiff. Associated Gen. Contractors, 459 U.S. at 528, 544-
46. Obviously skeptical that the union could prove the
conspiracy it alleged, this Court added in a footnote that had
the district court employed its power—presumably under
Rule 12(e}—to demand a more definite statement and “re- |
quired. the Union to describe the nature of the alleged
coercion with particularity before ruling on the motion to
dismiss, it might well have been evident that no violation of
law had been alleged.” Associated Gen. Contractors, 459
U.S. at 528 n.17. “In making the contrary assumption for
purposes of our decision,” the Court wrote in dictum, “we are
perhaps stretching the rule of [Conley, 355 U.S. at 47-48}, too
far.” Jd. It applied Conley nonetheless.

In. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986),
moreover, this Court formulated summary judgment stan-
dards against the background provided by notice-pleading.
rules that preclude termination of an antitrust case on a
motion to dismiss:

Before the shift to ‘notice pleading’ accomplished by the
Federal Rules, motions to dismiss a complaint or to
strike a defense were the principal tools by which
factually insufficient claims or defenses could be iso-
lated and prevented from going to trial with the attendant
unwarranted consumption of public and private re-
sources. But with the advent of ‘notice pleading,’ the
motion to dismiss seldom fulfills this function any more,
and its place has been taken by the motion for summary
judgment.

Celotex, 477 U.S. at 327.

16

The time for plaintiffs to produce facts supporting their
claims is in response to a motion for summary judgment—
after a reasonable opportunity for discovery. An antitrust
case cannot be dismissed merely because plaintiffs do not
plead facts proving their claims.

C. Notice Pleading Revisited: When Lower Courts
Ignore This Court’s Precedents

- The significance of this Court’s many notice-pleading
precedents should have been clear. Yet lower courts have
nonetheless from time to time fashioned heightened pleading
standards that they thought were good policy.'? Some courts
decided that civil-rights claims against governmental offi-
cials, or against municipalities, should be subject to height-
ened pleading standards, for example, with the Fifth Circuit
requiring plaintiffs to “state with factual detail and particular-
ity the basis for the claim.” Elliott v. Perez, 751 F.2d 1472,
1473 (Sth Cir. 1985); see also Boston & Maine, 987 F.2d at
866; Fairman, Heightened Pleading, 8\ Tex. L. Rev. at 575-
82. Others demanded specific facts for antitrust claims—as
in Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.
1984), when the Seventh Circuit brushed aside this Court’s
notice-pleading precedents on the ground that they cannot
mean what they very clearly say. :

With Sutliff, the Seventh Circuit expressly rejected the
standard of Conley and Scheuer, that a complaint cannot be
dismissed if the plaintiff might prove any set of facts
supporting its claim, on the ground that this Court’s oft-
repeated formulation “has never been taken literally.” Su¢liff,
727 F.2d at 654. After denigrating this Court’s standard, the

2 See Boston & Maine Corp. v. Town of Hampton, 987 F.2d 855, 863-
64 (Ist Cir. 1993) (surveying cases); Cash Energy, Inc. v. Weiner, 768
F. Supp. 892, 897 (D. Mass. 1991) (surveying cases); see generally,
Fairman, Heightened Pleading, 8\ Tex. L. Rev. at 575-96; Fairman, The
Myth of Notice Pleading, 45 Ariz. L. Rev. at 1011-62.

17

Seventh Circuit took as more “authoritative the statement in
an earlier [district court] case that the pleader must ‘set out
sufficient factual matter to outline the elements of his cause
of action or claim, proof of which is essential to his
recovery.”” Jd. (quoting Daves v. Hawaiian Dredging Co.,
114.F. Supp. 643, 645 (D. Haw. 1953)). Although this Coust
had held in Hospital Building Co., 425 U.S. at 746, that
antitrust cases should seldom be dismissed before discovery,
the Seventh Circuit disagreed, citing “heavy costs of modern
* federal litigation, especially antitrust litigation.” Sutliff, 727
F.2d at 654. If one “claims an antitrust violation, but the facts
he narrates do not at least outline or adumbrate such a
violation, he will get nowhere merely by dressing them up in
the language of antitrust.” /d.

This position—that plaintiff may be required to plead facts
demonstrating a violation—was put to rest by this Court’s
decisions in Leatherman v. Tarrant County Narcotics Intel-
ligence & Coordination Unit, 507 U.S. 163 (1993), and
Swierkiewicz, 534 U.S. 506.

In Leatherman, this Court unanimously reversed the Fifth
Circuit for requiring a plaintiff pursuing civil rights claims to
plead “all material facts establishing a plaintiff's right of re- -
covery.” Leatherman v. Tarrant County Narcotics Intelli-
gence & Coordination Unit, 954 F.2d 1054, 1055 (Sth Cir.
1992), rev'd, 507 U.S. at 167-69. This Court noted the Fifth
Circuit’s practice of requiring litigants pursuing civil rights
claims against government officials to “‘state with factual
detail and particularity the basis for the claim.’” Leatherman,
507 U.S. at 167 (quoting Elliott, 751 F.2d at 1473). “In later
cases, the Fifth Circuit extended this rule to complaints
against municipal corporations asserting liability under
§ 1983.” Leatherman, 507 U.S. at 167 (citing Palmer v. San
Antonio, $10 F.2d 514 (Sth Cir. 1987)). The Ninth Circuit, in
stark contrast, had held that a “*“claim of municipal liability
under [42 U.S.C.] section 1983 is sufficient to withstand
a motion to dismiss even if the claim is based on nothing

18

more than a bare allegation that the individual officers’
conduct conformed to official policy, custom, or practice.”””
Leatherman, 507 U.S. at 165 (quoting Karim-Panahi v. Los
Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988)
(quoting Shah v. County of Los Angeles, 797 F.2d 743, 747
(9th Cir. 1986))).

This Court opted for the Ninth Circuit’s rule, flatly re-
jecting the Fifth Circuit’s as contrary to notice-pleading,
reaffirming once more that the Federal Rules “‘do not require
a claimant to set out in detail the facts upon which he bases
his claim.’” Leatherman, 507 U.S. at 168 (quoting Conley,
355 U.S. at 45-46. Only for averments of fraud or mistake
does Rule 9(b) require a “greater particularity in pleading.”).
That Rule 9(b) specifies heightened pleading standards only
for averments of fraud or mistake was dispositive: “Expressio
unius est exclusio alterius.” Leatherman, 507 U.S. at 168.
The Court concluded that heightening pleading requirements
for any other allegations or claims—-whether for civil rights
or antitrust violations—“must be obtained by the process of
amending the Federal Rules, and not by judicial inter-
pretation.” Jd.

Following this Court’s decision in Leatherman, “the
Advisory Committee on the Federal Rules of Civil Procedure,
... father pointedly, on October 21, 1993, rejected the idea of
adding antitrust claims to the category of claims one must
plead with particularity.”'? The Committee noted that “many
courts have exacted heightened pleading requirements in
specific types of litigation,” including antitrust cases, often
“without any explicit articulation or justification.” Minutes of
the Advisory Committee on Federal Rules of Civil Procedure,
1993 WL 761148, at *4. After discussing the values of notice
pleading, the Committee suggested that “all that is needed is

'’ In re Hydrogen Peroxide Antitrust Litig., 401 F. Supp. 2d 451, 458
(E.D. Pa. 2005) (citing Minutes of the Advisory Committee on the Federal
Rules of Civil Procedure, 1993 WL 761148, at *6-*7 (Oct. 21, 1993)).

‘ 19
some means of encouraging greater use of tools already in the
Rules,” concluding that to “encourage more pleading motions
may be less satisfactory.” /d., at *5. Indeed, “increasing the
Rule 9 categories of claims that must be pleaded with
particularity seemed undesirable to virtually all committee
members who spoke to the question.” /d., at *6.

The Seventh Circuit, at least, got Leatherman's message,
and reversed its previous course—holding “that judicial
attempts to apply a heightened pleading standard in antitrust
cases had been ‘scotched’ by the Supreme Court’s decision in
Leatherman,” and “that after Leatherman, an antitrust plain-
tiff need not include ‘the particulars of his claim’ to survive a
motion to dismiss. It is instead sufficient for the plaintiff to
include in its complaint only ‘a short and plain statement of
the claim’ showing an-entitlement to relief.”'*

Yet some courts continued to require plaintiffs to ailege the
proof for some claims by pleading facts.'* Some lower courts
still applied heightened pleading standard to many civil rights
claims.'® Others did so in antitrust cases. '”

'* MCM Partners v. Andrews-Bartlett & Assocs., 62 F.3d 967, 976 (7th
Cir. 1995) (citing Hammes v. AAMCO Transmissions, 33 F.3d 774, 778,
782 (7th Cir. 1994) (noting that Sué/iff “cannot be considered aut!.oritative
after Leatherman’’)), see also Poindexter v. Nat'l Mortgage Co., No. 94 C
5814, 1995 U.S. Dist. LEXIS 5396, at *5-*6 (N.D. Ill. Apr. 18, 1995)
(“[t}]he Seventh Circuit’s flirtation with heightened pleading requirements
ended. with the Supreme Court’s reaffirmation of liberal pleading
standards in Leatherman”).

'S See Fairman, Heightened Pleading, 8\ Tex. L. Rev. at 583-90 (not-
ing post-Leatherman circuit split); Fairman, The Myth of Notice Pleading,
45 Ariz. L. Rev. at 1018-20 (antitrust), 1029-30 (civil rights), 1035-36
(conspiracy); Richard L. Marcus, The Puzzling Persistence of Pleading
Practice, 76 Tex. L. Rev. 1749, 1763 & n.106 (1998) (listing cases). .

'® See, e.g., Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1402 &
n.23 (Sth Cir. 1996); Branch v. Tunnell, 14 F.3d 449, 455-57 (9th Cir.
1994); Kimberlin v. Quinlan, 6 F.3d 789, 794 n.9 (D.C. Cir. 1993), cert.
granted, 513 U.S. 1123.

20

In Swierkiewicz, 534 U.S. at 511, this Court had to
intervene once again, unanimously reversing Second Circuit
precedent requiring employment discrimination plaintiffs to
allege facts supporting a claim. Once more this Court had to
say that “under a notice pleading system, it is not appropriate
to require a plaintiff to plead facts establishing a prima
facie case.” Id. (emphasis added). Rule 8’s “simplified
notice pleading standard relies on liberal discovery rules and
summary judgment motions to define disputed facts and
issues and to dispose of unmeritorious claims.” Jd. at 512.
Through those provisions, any “attempted surprise in federal
practice is aborted very easily, synthetic issues detected, and
the gravamen of the dispute brought frankly into the open for
the inspection of the court.” /d. at 513 (quoting 5 Wright &
Miller, supra, §1202, at 76).

It should be clear, then, that antitrust complaints need
contain no evidentiary facts. “While courts had previously
applied a heightened pleading requirement in antitrust cases,
this view has subsequently been rejected in favor of applying
Rule 8(a)’s notice pleading standard.”"*

'’ Fairman, The Myth of Notice Pleading, 45 Ariz. L. Rev. at 1018-20
& n.207 (citing e.g., Dickson v. Microsoft Corp., 309 F.3d 193, 212-13
(4th Cir. 2002); Estate Constr. Co. v. Miller & Smith Holding Co., 14
F.3d 213, 220-22 (4th Cir. 1994); and Syncsort Inc. v. Sequential Soft-
ware, Inc., 50 F. Supp. 2d 318, 328 (D.N.J. 1999)).

'§ Andrx Pharms., Inc. v. Elan Corp., PLC, 42\ F.3d 1227, 1234-1235
(11th Cir. 2005); accord, e.g., Lum v. Bank of Am., 361 F.3d 217, 220 (3d
Cir. 2004) (antitrust claims “generally are not subject to the heightened
pleading requirement of Rule 9(b)”); MCM Partners, 62 F.3d at 976
(Le .erman “scotched” Sutliff), In re Urethane Antitrust Litig., 409 F.
Supp. 2d 1275, 1282 (D. Kan. 2005) (“heightened pleading standards do
not apply to antitrust claims, particularly in light of the Supreme Court's
reasoning in Leatherman and Swierkiewicz”), see also United States v.
LSL Biotechnologies, 379 F.3d 672, 698-99 (9th Cir. 2004) (Aldisert, J.
dissenting).

21

D. Dura Pharmaceuticals Works No Revolution In
Pleading Standards

The Petitioners insist that Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336 (2005), which dealt with requirements
- for proving and pleading loss in connection with a securities
fraud claim, requires pleading of the facts that ultimately will
be needed to support the plaintiff's claims, so that in antitrust
cases, any “pleading of conspiracy requires factual allega-
tions that directly support the existence of an agreement or,
- failing that, facts that support an inference that defendants
conspired.” Petitioners’ Brief at 21 (emphasis added). But
_ Dura merely holds that one who purchases a security at an
inflated price thereby suffers no injury—for she might sell it
at a similarly inflated price and suffer no loss. 544 US. at
342. Thus, a complaint asserting that investors purchased a
security at an inflated price fails to plead a claim even under
Conley’s liberal notice-pleading rules. Dura Pharms., 544
U.S. at 346-47. This Court emphasized that it “should not
prove burdensome for a plaintiff who had suffered an eco-
nomic loss to provide a defendant with some indication of the
loss and the causal connection that the plaintiff has in mind.”
Id. at 347 (emphasis added); see also In re Enron Corp. Sec.
Derivative & ERISA Litig., 439 F. Supp. 2d 692, 700-01 &
nn.9-10 (S.D. Tex. 2006).

Il. UNDER FEDERAL RULE OF CIVIL PRO-
CEDURE 9%(b), CONSPIRATORIAL STATE OF
MIND MAY. BE AVERRED GENERALLY
WITHOUT SETTING FORTH ANY FACTS
FROM WHICH IT MIGHT BE INFERRED

Petitioners say that any “pleading of conspiracy requires
factual allegations that directly support the existence of an
agreement or, failing that, facts that support an inference that
defendants conspired.” Petitioners’ Brief at 21 (emphasis
added). This notion that plaintiffs must plead facts demon-
strating a conspiratorial state of mind runs afoul not only of

-~

22

this Court’s notice-pleading precedents under Rule 8, see
supra, it also conflicts with Rule 9(b)’s proviso that, when-
ever relevant, the “condition of mind of a person may be
averred generally”—that is to say, without setting forth any
evidentiary facts from which it might be inferred. Fed. R.
Civ. P. 9(b).

Rule 9(b)’s Advisory Committee Notes direct those who
wish to understand this provision to “[s]lee English Rules
Under the Judicature Act (The Annual Practice, 1937) O. 19,
r. 22,” on which Rule 9(b) is based. And Order 19, Rule 22,
states the underlying rule quite clearly: “Wherever it is
material to allege malice, fraudulent intention, knowledge, or
other condition of the mind of any person, it shall be
sufficient to allege the same as a fact without setting out the
circumstances from which the same is to be inferred.” The
Annual Practice, Order 19, Rule 22 (1937) (emphasis added);
see generally, Christopher M. Fairman, An Invitation to the
Rulemakers—Strike Rule 9(b), 38 U.C. Davis L. Rev. 281,
286-87 (2004).

From the beginning, leading treatises identified Rule 9(b)’s
lineage and acknowledged its meaning. See, e.g., | Palmer D.
Edmunds, Federal Rules of Civil Procedure, Comment 49 at
432 (1938) (quoting Order 19, Rule 22 as Rule 9(b)’s source).
Rule 9(b)’s principal drafter, the Reporter for the Federal
Rules himself, the Honorable Charles E. Clark, confirmed in
his Handbook of the Law of Code Pleading, §48 at 313
'n.87, that Rule 9(b) was based on Order 19, Rule 22—and its
proviso that facts indicating state of mind need not be
pleaded."

'? Judge Clark also cited model Rules of Civil Procedure in the Ameri-
can Judicature Society Bulletin 14, 1919, art. 15 §18, which similarly
provided:

In all cases in which the party pleading relies on any misrep-
resentation, fraud, breach of trust, wilful default, or undue influence,

23

From the outset, decisional law similarly recognized the
obvious, applying Rule 9(b) to reject contentions that any
facts must be alleged to show state of mind. In Love v.
Commercial Casualty Insurance, 26 F. Supp. 481, 481-82
(S.D. Miss. 1939), for example, the plaintiff conclusorily
asserted that a letter had been written with malice. The
defendants insisted “that facts must be alleged in the com-
plaint from which it can be inferred that the letter was written
in fact with malice, and to aver generally that it was
maliciously written is not sufficient as being a conclusion of
the pleader.” /d at 481-82. The district court rejected such
contentions, noting that Rule 9(b) “is very clear and is not
open to any such construction as contended for by the
defendants.” Jd at 482. “This rule very probably was
adopted from the rules of the Supreme Court of England,
Order XIX, Rule 22, which provides that whenever it is
material to allege malice, etc., it shall be sufficient to allege
[the] same as fact without setting out the circumstances from
which it is to be inferred.” /d. at 482 (citing Sargeaunt v.
Cardiff Junction Dry Dock Co., (1926) W.N. 263).

the facts must be stated with full particularity, but whenever it is
material to allege malice, fraudulent intention, knowledge, or other
condition of the mind of any person, it shall be sufficient to allege
the same as a fact, without setting out the circumstances from which
the same is to be inferred.
Clark, Handbook of the Law of Code Pleading, § 48 at 313 n.87 (quoting -
Rules of Civil Procedure, Am. Jud. Soc. Bull. 14, 1919, art. 15 §18). The
model was embraced by several states. See, e.g., Ingalls v. Raklios, 21
N.E. 2d 856, 857 (Ill. Ct. App. 1939) (quoting Ill. Mun. Ct. Rule 72:
“Whenever it is material to allege malice, fraudulent intention, knowledge
or other condition of mind, it shall be sufficient to allege the same as a
fact without setting out the circumstances from which the same is to be
inferred.”), rev'd, 26 N.E. 2d 468 (ill. Sup. Ct. 1940); Broxmeyer v.
Polikoff, 39 Pa. D. & C. 224, 231 (C.P. Phila. County 1940) (quoting
Common Pleas Rule 50: “Whenever it is material to allege . . . intent,
knowledge or other condition of mind of any person, it shall be sufficient
to allege the same as fact without setting out the circumstances from
which the same is to be inferred.”’).

24

Some Second Circuit decisions, in derogation of Rule
9(b)’s command, began to require plaintiffs alleging securi-
ties fraud to plead iacts raising “a strong inference of
scienter.”””

In Jn re GlenFed, Inc. Securities Litigation, 42 F.3d 1541,
1545 (9th Cir. 1994) (en banc) the Ninth Circuit convened en
banc to construe Rule 9(b) in light of it: history and the
drafters’ intent. The Court acknowledged Order 19, Rule 22
as “[t]he model for Rule 9(b),” and observed that the “Second
Circuit's test is . . . irreconcilable with the second sentence of
Rule 9(b),” which permits state of mind in all cases to be
“averred generally.” GlenFed, 42 F.3d at 1545. Requiring
plaintiffs to plead facts raising any inference of scienter
“conflicts both with the English rule which was the model for
Rule 9(b) and with the second sentence of Rule 9(b) itself,
which declares unequivocally that state of mind may be
averred generally and says absolutely nothing about required
inferences.” /d. at 1546.

Whether the Second Circuit’s more-demanding pleading
standard might be good policy was “beside the point,” in light
of this Court’s holding in Leatherman that such a result
““must be obtained by the process of amending the Federal
Rules, and not by judicial interpretation.” /d. (quoting
Leatherman, 507 U.S. at 168). “We are not permitted to add

® See, e.g., O'Brien v. Nat'l Prop. Analysts Partners, 936 F.2d 674,
676 (2d Cir. 1991); Ross v. A. H. Robins Co., 607 F.2d 545, 588 (2d Cir.
1979); see also Marcus, The Puzzling Persistence of Pleading Practice,
76 Tex. L. Rev. at 1760 (“Not only did it contradict the rule, the Second
Circuit's approach also thrust upon the courts the difficult problem of
defining a ‘strong inference’ of scienter.”); Marcus, The Revival of Fact
Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev.
at 447-48, 485 (an “ironic result”); William S. Lerach & Eric Alan
Isaacson, Pleading Scienter Under Section 21D(b)(2) of the Securities
Exchange Act of 1934: Motive, Opportunity, Recklessness, and the
Private Securities Litigation Reform Act of 1995, 33 San Diego L. Rev.
893, 906 & n.77 (1996).

25

new requirements to Rule 9(b) simply because we like the
effects of doing so,” wrote the en banc court, in an exercise of
judicial restraint. /d. “This is a job for Congress, or for the
various legislative, judicial and advisory bodies involved in
the process of amending the Federal Rules.” /d.

Congress, of course, acted in 1995, enacting the Private
Securities Litigation Reform Act to require that in private
actions under the Securities Exchange Act of 1934, plaintiffs
shall be required to plead facts raising a strong inference of
scienter: “In any private action arising under this title in
which the plaintiff may recover money damages only on
proof that the defendant acted with a particular state of mind,
the complaint shall . . . state with particularity facts giving
rise to a strong inference that the defendant acted with the
required state of mind.” 15 U.S.C. §78u-4(b).”" |

Notably, Congress chose to alter pleading standards only
for securities fraud claims arising under the 1934 Act but not
for any other claims—not even for ones arising under the
Securities Act of 1933. The PSLRA enacted other reforms—
to class-action procedures—adding parallel provisions to both
the 1933 and 1934 Acts. See Private Securities Litigation
Reform Act of 1995 (“PSLRA”), Pub. L. No. 104-67, §101,
109 Stat. 737-49 (1995); compare 15 U.S.C.-§77z-| with 15
U.S.C. §78u-4. It also enacted parallel provisions concerning
liability for forward-looking statements in both the 1933 and
1934 Acts. Compare 15 U.S.C. §77z-2 with 15 U.S.C. §78u-S.
But only 1934 Act claims are subject to heightened pleading
standards of any kind. See 15 U.S.C. §78u-4(b); see gen-
erally Hillary A. Sale, Heightened Pleading and Discovery
Stays: An Analysis of the Effect of the PSLRA’s Internal

** See generally John Avery, Securities Litigation Reform: The Long
and Winding Road to the Private Securities Litigation Reform Act of
1995, 51 Bus. Law. 335, 345-47, 357-58 (1996); Lerach & Isaacson,
supra, 33 San Diego L. Rev. at 893, 906-07.

26

Information Standard on ‘33 and 34 Act Claims, 76 Wash. U.
L.Q. 537, 583-90 (1998).

That Congress chose to adopt a narrowly limited heightened
pleading requirement—overriding Rule 9(b)’s proviso that state
of mind may be generally averred—only for securities fraud
cases under the 1934 Act should be dispositive: “‘Expressio
unius est exclusio alterius.” Swierkiewicz, 534 U.S. at 513
(quoting Leatherman, 507 U.S. at 168). Petitioners can point to
‘no similar legislative action authorizing heightened pleading
standards for antitrust claims. Accordingly, conspiratorial state
of mind may be “generally averred” under Rule 9(b), without
setting forth any facts from which it might be inferred.

CONCLUSION

This is no time to abandon the notice-pleading principle
adopted in the Federal Rules in 1938, and restated so many
times by this Court’s rulings—that plaintiffs need not plead the
facts necessary to prove their case. Requiring fact pleading is —
particularly inappropriate in cases that deal with complex
conspiracies stretching over months or years. In a civil rights
case, Judge Easterbrook explained for the Seventh Circuit: _

The district court dismissed the complaint to the extent it
sought relief from the nine individual defendants,
observing that “the complaint does not . . . say of any
defendant, as an individual, that he or she has done
something.” Nor did it need to. Complaints need not
plead facts ....It is enough to specify the wrong done
and leave details to later steps, such as motions for more
definite statement, Fed. R. Civ. P. 12(e), and affidavits
concerning summary judgment. When a collective body
such as a school district takes a complex series of actions
over a span of years, it may be difficult to pin down
individual responsibility without discovery. If the com-
plaint cannot survive a motion under Rule 12(b)(6) until
each person’s role is known, however, it may be
impossible as a practical matter to obtain complete

27

relief. The school desegregation claim should proceed -
against all of the original defendants.

Palmer, 46 F.3d at 688 (citations omitted).

Antitrust conspiracies are apt to be all the more complex—
and surreptitious. Plaintiffs should not be required to plead
particularized facts prior to discovery.

Respectfully submitted,

MARY JANE FAIT _ ERIC ALAN ISAACSON *
_ WOLF HALDENSTEIN ADLER MARK SOLOMON
FREEMAN & HERZ, LLP CHRISTOPHER M. BURKE
55 West Monroe Street, Suite 1111 TAM! FALKENSTEIN HENNICK
Chicago, IL 60603 LERACH COUGHLIN STOIA
(312) 984-0000 GELLER RUDMAN &
ROBBINS LLP

655 West Broadway, Suite 1900
San Diego, CA 92101
* Counsel of Record (619) 231-1058

Counsel for Amici Curiae Legal Scholars Debra Lyn Bassett,

_. Joseph P. Bauer, John S. Beckerman, Kevin M. Clermont,
William V. Dorsaneo III, Christopher M. Fairman, Jackie Gardina,
Susan Harthill, Allan Ides, Danne L. Johnson, David Levine,
Tyler T. Ochoa, Stephen A. Saltzburg, Gregory C. Sisk, Joan E.
Steinman, Jeffrey W. Stempel, Beth Stephens and Elizabeth G.
Thornburg, and for Certain Purchasers of Elevators and
Elevator Maintenance Services, Including Transhorn Ltd., et al.

October 13, 2006

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0246%3A24. Public record. Not legal advice.