In my earlier post, I argued that the Supreme Court’s approach to pleading in Twombly and Iqbal is not necessarily inconsistent with the pre-Twombly notice-pleading framework. On a correct reading, the admittedly-problematic plausibility inquiry is not a basis for disregarding allegations in a complaint. When a complaint provides non-conclusory allegations for each element of a claim for relief, those allegations must be accepted as true, without regard to their “plausibility.”
There is no doubt, however, that the lower federal courts are paying a lot of attention to Twombly and Iqbal. My article The Pleading Problem ranks Supreme Court decisions in terms of the frequency with which they have been cited by federal courts. The figures in my current draft were as of June 30, 2009 (they will be updated in the final version). But even then, Twombly was #17 all-time with over 14,000 citations by federal courts. As of today, its count is nearly 22,000, which will place it very comfortably in the top-10. Iqbal is just getting started, but over the last eight months it has been cited at a remarkable rate of over 600 decisions per month.
That said, an opinion’s citation frequency alone doesn’t tell you what courts are actually doing with that opinion. That’s the far more interesting question. There are certainly federal courts whose approaches to pleading after Iqbal reflect a much stricter standard. Jon Siegel identified a slip-and-fall case in an earlier Concurring Opinions post, Alexi Lahav has noted some others on the Mass Tort Litigation Blog, and I mention a few in my forthcoming article. In this post, I want to flag some cases where the lower federal courts are at least on the right track.