Motions to Dismiss Under Twombly

The Supreme Court’s 2005 decision in Twombly v. Bell Atlantic Corp has been widely interpreted as imposing a heightened fact-pleading standard and thus a significant burden on plaintiffs. Many in the defense bar think it is almost malpractice not to bring a motion to dismiss. However, as lower courts have grappled with the standards, it’s become apparent it’s more nuanced than that, writes Jeffery M. Cross in this Today’s General Counsel column. He looks at some key decisions that shape those nuances, including one from the Seventh Circuit that says the fact that the allegations undergirding a claim could be true is no longer enough. “Rather,” he writes, “the complaint must establish a probability that is not negligible that the claim is valid, but that probability may not be as great as a standard such as ‘preponderance of the evidence.” Another important consideration is that a trial court must take a well-pled fact is true, but it can ignore “conclusory” allegations. It’s a thin line, but it can be drawn.