So now how does a complaint “establish a nonnegligible probability”?. Plausibility itself was confusing but now we have a definition that leans toward a mathematical model of probability for civil complaints. If this is so, it opens up a whole new field of looking at plausibility in terms of mathematical models. This as strange as it seems is nothing new to the courts. There are scores of disparate impact cases that are in fact evaluated in whole or part by mathematical statistics. So now plausibility pleadings with this new definition may open up even more doors for evalutating complaints with probability models.
I have discovered a Mathematical Formula for Civil Pleadings – I will turn it into a true mathematical expression but here it is. If you are Pro Se – I would recommend that you seek the help of an attorney – If you have to go it alone I can say that there are thousands of readings that you have to go through to get to this point, but this should help. If you are an Attorney then I would like your feedback. At some point, there will be an accepted formula whether mine is accepted or not – but this is the first using Judge Posner’s definition of Plausibility.
Plausibility = NonNegligible Probabilty. This definition is found in IN RE: TEXT MESSAGING ANTITRUST LITIGATION. Appeal of: Verizon Wireless, et al., Defendants. No. 10-8037.
Plausibility exist when Probability of Transaction of Alleged Facts > Probability of Conclusory statements. This exist when (Facts, Events,Comments related to claim are assigned a weight) > absolute(Conclusory statements weighted as Zero or assigned a larger weights because it gives rise to alternative reasons or its ridiculous)). Twombly -“formulaic recitation[s] of the elements” of the plaintiff’s legal claim, and urged district courts to discard those allegations as conclusory.
For the purposes – give your Facts, Events,Comments a value of 1. Give your Direct Evidence a value of 5. Give your conclusory statements a value of 0, Give Key conclusory statements that have no facts linking it a value of 5. John Orenstein and Harry Niska in their Article “That’s not Plausible: Iqbal One Year Later” give some great topics that you might want to immediately assign a weight from zero to five for conclusory. Here they are: Defying Reality, Grave Charges, Context, Inherently Subjective Claim Elements – Read their article at http://hennepin.timberlakepublishing.com/article.asp?article=1442&paper=1&cat=147.
I have made the formula a relation between the plaintiff facts that may make his claim plausible and his conclusions that may destroy the probability. I did this to satisfy, Posner’s additional note “but the probability need not be as great as such terms as “preponderance of the evidence” connote.” I did this because the conclusory side can destroy the probability of plausibility because if the probability of alternative reasons increase then this would reduce the probabilty to negligible.
In addition, allegations of circumstantial evidence may in itself be able to make the claim plausible, if there are no damaging conclusory allegations.
This formula is even more important when amending your complaint if you get a chance to amend your complaint. This of course applies and should apply to Affirmative Defenses.
I am a pro se litigant currently fighting a 12(b)(6) Motion to Dismiss and has already submitted my opposition papers. Unfortunately, for me, I submitted my papers without cracking the Iqbal Code, but four months after my last sur reply – I believe I have decoded Iqbal and now I understand why Swierkiewicz is still good law and not disturbed and even why Iqbal is good law but can be sidestepped.
The funny thing is that I have developed insomnia – and this allows me to spend unnatural hours up at night. To exhaust myself, I have read every thing every posted free on Iqbal, Twombly, Swierkiewicz and think that I have finally figured it out. Thanks to these three authors and their articles.
Luke Meier – Why Twombly is Good Law (But Poorly Drafted) and Iqbal will be overturned.
Joseph Seiner – The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases.
Suja Thomas’ – The New Summary Judgment Motion: The Motion to Dismiss under Iqbal and Twombly .
Suja Thomas – Oddball Iqbal and Twombly and Employment Discrimination
So let’s get to it. Here is the layman’s explanation and you lawyers can do the heavy lifting. Providing that the reader has read the cases of Twombly, Iqbal and Swierkiewicz , you will have enough info to understand what is next.
When a Plaintiff files a complaint, he/she has to be conscious that there is a new sheriff in town and the sherriff’s name is twombly and Iqbal. The defendant will call in the sheriff to inspect your complaint. Your Civil Complaint must be Plausible. Here is what Twombly and Iqbal say:
Twombly – New “plausibility” standard
Plaintiff’s obligation to provide the “grounds” of entitlement to relief requires more than labels and conclusions. Factual allegations must be enough to raise a right to relief above the speculative level, even assuming that all the allegations in the complaint are true. Need sufficient factual allegations to “state a claim to relief that is plausible on its face ….” Here, plaintiff needs a complaint with enough factual matter (taken as true) to suggest that an illegal agreement was made.
Iqbal – Two-pronged plausibility standard
Legal conclusions are not entitled to an assumption of truth (instead legal conclusions must be supported by well-pleaded factual allegations). Well-pleaded factual allegations are taken as true; court must determine whether they “plausibly” give rise to an
entitlement to relief Determining whether a complaint states a plausible claim for relief will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense”
* I want to make a quick note on the plausibility pleadings that are hidden. Conclusory allegations are not necessarily discarded with a Zero Weight – they can an also be given a negative weight.
Both the Twombly and Iqbal cases were found not plausible and dismissed with a 12(b)(6) motion. What you are probably wondering is what is plausibility. We will get to that but first – Here is my Non Lawyer Opinion.
Twombly was an anti-trust case where the Plaintiff tried to show parallel conduct but could not show that there was a meeting where the price was fixed. Twombly failed because of the inferences on inferences without having a transactional event leading to the meeting and they had no one to say that there was a meeting.
The fatal flaw with Iqbal’s complaint is that he attacked Aschroft’s and Mueller’s state of mind with discriminatory intent. To say that the Aschroft and Mueller’s intention was discriminatory was too big of a leap and frankly dangerous and or costly for this country as it fought terrorism. It would have been different if Iqbal came in direct contact with Mueller or Aschcroft and they said something or even someone who worked with them said something or even that someone who worked for someone else down the chain said it was policy from high up. Iqbal had none of this. It was correctly dismissed because he didn’t include a fact connecting Mueller or Aschcroft directly.
What is also missing from all of these great papers on Twombly,Iqbal and Swierkierwicz is the notion of disparate impact. Disparate impact. Here is a definition of disparate impact – “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”
Disparate Impact would probably escape the negative rulings on Twombly and Iqbal, why? Because there is some policy, at least you have to allege one and there is some statistical story that shows some disparate impact. You don’t have to look in the mind of someone. Especially not in the mind’s of men who are saving lives of Americans. Though there may have been a bad policy paper lying around. That’s the whole point, of disparate impact, you don’t have to look for intentional discrimination in someone’s mind. The disparate statistics show the story. Later we will see in fact that the same reason why disparate impact claims survive assuming that there is a policy that creates some disparate statistical disadvantage to one group. The point is that the statistical difference is more than negligible. Not surprising in the a recent anti-trust case we see that plausibility’s definition is nonnegligibly probable.
So the Plaintiff Iqbal may have been successful at his complaint if he claimed disparate impact of those in SHU and may have showed the Disparate Impact existed in SHU but in addition there may have also been some parallel policy at play. Most likely, the disparate impact would have survived given that there may more Muslims or Middle East origin inmates housed in this special unit in SHU vs accused criminals not of these characteristics. If he had a true fact that he heard that the policy was from high up – well that may have moved his case further. Instead his pleadings said this – Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject [him] to harsh conditions . . . solely on account of [his] religion, race, and/or national origin.” And that Ashcroft was the “principal architect” of the policy and that Mueller was “‘instrumental’ in adopting and executing it.” This comments were had no link to them in the factual transaction of real events.
Twombly’s problem was its inferences on inferences and attempting to show that parallel conduct was the result of some alleged illegal agreement. They did not have enough facts to suggest an illegal agreement. So the Twombly complaint was correctly dismissed.
Prior to these cases is a Unanimous Supreme Court ruling on a case called Swierkiewicz v. Sorema. In this case 7 years before Twombly, Akos Swierkiewicz, a 53-year-old native of Hungary, began working for Sorema N. A., a reinsurance company principally owned and controlled by a French parent corporation, in 1989. Six years later, the Chief Executive Officer, a French national, demoted Swierkiewicz from the position of senior vice president and chief underwriting officer to a marketing and services position with fewer responsibilities. A younger French national was promoted to Swierkiewicz’s old position. Swierkiewicz filed suit, alleging that he had been fired on account of his national origin in violation of Title VII of the Civil Rights Act of 1964,and on account of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA). In dismissing the case, the District Court found that Swierkiewicz had not adequately alleged a prima facie case, in that he had not adequately alleged circumstances that support an inference of discrimination. In affirming, the Court of Appeals relied on precedent requiring an employment discrimination complaint to allege facts constituting a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792.
The case found its way to the Supreme Court with a Question:Must a complaint in an employment discrimination lawsuit contain specific facts establishing a prima facie case of discrimination. The court said No. In a unanimous opinion delivered by Justice Clarence Thomas, the Court held that an employment discrimination complaint need not include specific facts establishing a prima facie case under the framework of McDonnell Douglas Corp. v. Green and instead must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief,” pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure. Justice Thomas noted that the prima facie case operates as a flexible evidentiary standard and not a pleading requirement for discrimination cases. “Under the Second Circuit’s heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence,” wrote Justice Thomas. “It thus seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.”
This case survived but Twombly and Iqbal did not. Since Swierkiewicz did not have to undergo the “Plausibility Test”, many believe that Swierkiewicz is dead. I do not.
Meier in his article said “There is no way to reconcile, as a matter of pleading standards, the Court’s approach to “conclusory allegations of discrimination” in Swierkiewicz and Igbal. Both involved conclusory allegations of discriminatory intent; in Iqbal, the Court dismissed these allegations as implausible while in Swierkiewicz the Courd admonished the trial court for engaging in this same type of analysis. Many lower courts and commentators have determined that Iqbal overruled the Swierkiewicz cases. This is a fair conclusion; the cases cannot be reconciled.”
Suja said the same that Swierkiewicz was over-ruled in her article Oddball Iqbal and Twombly and Employment Discrimination. She said “The argument that a revolution is likely is also derived from the state of the law for pleading in employment discrimination after Iqbal and Twombly. In Swierkiewicz v. Sorema, N.A., the Court stated that an employment discrimination plaintiff was not required to plead a prima facie case to defeat a motion to dismiss.59 While others disagree on the status of Swierkiewicz,60 Swierkiewicz is “effectively . . . dead”61 after Iqbal and Twombly.”
I believe that Swiekiewicz was not touched for the following reasons.
Swierkiewicz survived and complaints like Swierkiewicz survive because all of the actors or within the transactional events. So that’s it – If the actors are within the transactional events you do not have to infer a discriminatory state of mind – The events and the adverse action tell the story until summary judgment assuming there are enough facts to give rise to the a claim of relief. The same goes true for the pleadings in disparate impact – the statistics and the adverse circumstance tell the story until summary judgment. However the Twombly and Iqbal have facts that are not in the close transactions and this matters.
So Iqbal and Swierkiewicz are not at odds because Mueller and Aschroft alleged discriminatory intent are not in the close transaction of Iqbal’s complaint – the Plaintiff just sticks them in without a link. In Akos Swierkiewicz his boss is directly in the transaction of events and he pulled from memory a conversation about igniting the underwriting unit with new blood. Swierkiewicz is also not at odds with Twombly for the same reason – facts of an actual meeting where the prices were fixed is not in the transactions. If they had the meeting, then they could have amended.
My point in Twombly and Iqbal is that the conclusions were not just discarded as the Supreme Court seems to mention – They conclusions are given not a zero weight but a negative weight.
If you begin to analyze all of the complaints that survive Iqbal and Twombly you will see this pattern. For the complaints that don’t survive you will see that either the facts themselves don’t give rise to the claim for relief or the Plaintiff makes a leap as in Iqbal and Twombly. When the leap is made without a link pin then the strength of the complaint is weakened. The defendant in his moving papers or now the Judge can intervene by saying that the analysis of a complaint is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. The notes of dismissal will probably point to one or more alternative reasons for the adverse action that will doom the complaint. So don’t make the leap unless you have a strong link!!!
So we return to Plausibility. Until recently in a case called TEXT MESSAGING ANTITRUST LITIGATION. Appeal of: Verizon Wireless, et al., Defendants. No. 10-8037. — December 29, 201. We finally get the definition of plausibility.
Drumroll – Here it is –
Writing for the panel, Judge Richard Posner noted that the trouble courts have had with Twombly and Iqbal — which some wits call Twom-bal, Tw-iqbal, or even Iq-bly — justified the court in granting mid-course review of an order denying a motion to dismiss. Judge Posner also tweaked the Court for claiming in Iqbal that Twombly didn’t create a “probability” test: The Court said in Iqbal that the “plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 129 S. Ct. at 1949. This is a little unclear because plausibility, probability, and possibility overlap. Probability runs the gamut from a zero likelihood to a certainty. What is impossible has a zero likelihood of occurring and what is plausible has a moderately high likelihood of occurring. The fact that the allegations undergirding a claim could be true is no longer enough to save a complaint from being dismissed; the complaint must establish a nonnegligible probability that the claim is valid; but the probability need not be as great as such terms as “preponderance of the evidence” connote.
Plausible means nonnegligible probablility or moderately likely. So it was nonnegligible probablility or moderately likely that there was age discrimination in Swierkiewicz case and it was negligibly probable or not likely that Iqbal could prove that Aschroft and Mueller’s intention was discriminatory. There was also negligibly probable there was an illegal agreement in the form of a meeting in Twombly. Here as said before these conclusions were not assigned a Zero but actually assigned a negative weight.
So we now see Plausibility as a mathematical expression – where Plausibility is Nonnegligible probability and that conclusory facts can be assigned a zero or weighted negative that could bring the mathematical expression to negligible.
To Whither Iqbal then if you are a Plaintiff then you had better create a transactional complaint where all of the actors are closely linked by dates, times, events, conversations are you may suffer a Twiqbal. Otherwise form your complaint more like a Swierkiewicz or Swierkiewicz Plus case with some direct evidence and or facts alleging strong circumstantial evidence and you will survive. Do what you must to make your facts nonnegligibly probable or moderately likely. The courts will have no choice to let it through the gates unless the Supreme Court knocks down Swierkiewicz.
What is more a concern is what all the authors of the other blogs seem to say and that is what triggers this search for plausibility. For now the Defendants have gotten away as in my my case – globally condemning my complaint as failed to state a claim instead of invoking a motion to strike, a motion for a more definitive statement or invoking a rule 11.
Until now Defendant Attorneys have gotten away with the Global Failure to Dismiss instead of directly attacking the particular conclusory statement.
So Twombly decision was made because the Plaintiff claimed of a meeting that must have set off this price fixing and tried to show parallel conduct to show that it occurred. Iqbal should never had looked for discriminary intent of Aschroft or Mueller but blamed it on some policy of treatment that came from higher up – John Doe. If most prisoners are getting waterboarded then there is some policy somewhere – where did it start, where did it occur, what prisoners complained and did the higher ups know about it. Finally, Swierkiewicz is like neither of these. All of his allegations are in the transaction of events and alleged comments.
Iqbal and Twombly are not here for chance – they are here to safeguard opening the doors not to meritorious discrimination claims (they are just a casualty of war). Twombly and Iqbal is a protective meaure to put a stronger barrier to getting into the files of powerful corporations and the government as it goes through several adjustments to fight terrorism. I don’t agree with this locked door but unfortunately, I have to deal with it as I fight a motion to dismiss in front of me.
Of course, my opinion is only my opinion and it is open for discourse, agreement and disagreement. Unexpectedly but Graciously, Professor Luke Meire responded to a note that I sent him and he said this.
Thanks for the note. I see what you are saying but that isn't how I read Iqbal. What the court found "implausible" in Iqbal were the allegations of discriminatory intent. It wasn't that the court doubted that Ashcroft and Mueller were involved in the discussions that formed the policies that Iqbal challenged. Instead, the court essentially said: "We doubt that Ashcroft and Mueller were motivated by a discriminatory intent." I don't see how you can reconcile that conclusion with Sweikerwicz. Adam Steinman has put forward an argument similar to the one you advance in your note to me. I understand it, I just don't think it is a fair interpretation of what the court actually said in Iqbal. I hope your litigation goes well; thanks for your comments on my article. Luke Meier
I at one point read Adam Steinman’s – The Pleading Problem and m currently rereading it. I think his important article shows guidance as the others but I also think that Twombly, Swierkiewicz and Igbal are three different animals not necessarily in the claims for relief but how the transaction of facts were presented. Both Twombly and Iqbal pleaded themselves out of court not because they said too much but because they leaped further then they should have.
So let’s apply the formula to an upcoming case
Plausibility exist when Probability of Transaction of Alleged Facts > Probability of Conclusory statements. This exist when
(Facts,Events,Comments related to claim give a weight to Plausibility) > absolute(Conclusory Facts weighted as Zero or assigned Negative Weights give a weight to NonNegligible Probability)). Twombly -“formulaic recitation[s] of the elements” of the plaintiff’s legal claim, and urged district courts to discard those allegations as conclusory.
For the purposes – give your Facts, Events,Comments a value of 1. Give your Direct Evidence a value of 5. Give your conclusory statements a value of 0, Give Key conclusory statements that have no facts linking it a value of 5. John Orenstein and Harry Niska in their Article “That’s not Plausible: Iqbal One Year Later” give some great topics that you might want to immediately assign a weight from zero to five for conclusory. Here they are: Defying Reality, Grave Charges, Context, Inherently Subjective Claim Elements – Read their article at http://hennepin.timberlakepublishing.com/article.asp?article=1442&paper=1&cat=147.
Here is a case information gotten from a document entitled Paul Weiss Client Memorandum where this formula could may have. In Burtch v. Milberg Factors, Inc., a case that is currently on appeal in the Third Circuit.13 In Burtch, the district court granted defendants’ motion to dismiss in a price fixing case involving “factors” – financial services firms that purchase the accounts receivable of manufacturers, primarily in the garment industry. The court held that plaintiff had alleged no more than parallel conduct by the defendants and that, at best, it was just as likely that defendants had engaged in such conduct independently as it was that they were acting pursuant to an unlawful agreement.
On appeal, plaintiff contends that the district court improperly applied a “probability” standard that is inconsistent with the Supreme Court’s holding in Twombly. Defendants counter that plaintiff’s complaint fails to raise even a plausible inference of conspiracy because there are obvious alternative explanations for the facts alleged that the complaint fails to rule out.
The crux of plaintiff’s complaint in Burtch is that defendants exchanged forward-looking credit information in the context of trade association meetings, and thereby violated Section 1 of the Sherman Act. Defendants maintain, and the district court held, that the information sharing alleged in the complaint is not alone sufficient to establish an antitrust claim.
On appeal, plaintiff contends, among other things, that the district court improperly applied a “probability” standard that is inconsistent with the Supreme Court’s holding in Twombly. Defendants counter that plaintiff’s complaint fails to raise even a plausible inference of conspiracy because there are obvious alternative explanations for the facts alleged that the complaint fails to rule out.
This is a perfect scenario to look at. The question the court will ultimately ask itself is did defendants exchanged forward-looking credit information in the context of trade association meetings, and thereby violated Section 1 of the Sherman Act. This will be held against the District Court’s holding and the Defendants that the information about the exchange of information alone in not sufficient to establish an antitrust claim and .
Since the plausibility standard will be looked at on appeal Posner’s new nonnegligible probability explanation will come into play. Since the facts of the matter is closed – we have if you apply my simple formula on the left side the fact that sharing the credit information in the context of trade association meetings. On the Right Side we have the obvious alternative explanations raised by the defendants. As a test, I don’t see any other facts so the left side gets a 1. The obvious alternative explanations get a 5 because the district court held that the info is not enough. The Plaintiff burden would now be to prove with his facts that a nonnegligible probability existed. His case would have been stronger if the Plaintiff alleged more facts about the dates of the trade meetings, who was there, what documents were shared. What principals were at the trade meetings if any. Did they see any sharing of the documents, etc.
Recently, in Atkins v. City of Chicago – US 7th Circuit- Argued Sept. 8, 2010. — January 25, 2011 – The court used “nonnegligible probablity” again to decide the plausibility of the complaint.
This is what the court said:
We are left in darkness as to whether the plaintiff is actually alleging that Atkins was denied food or water for four days, or for a lesser, but still constitutionally significant, length of time. The plaintiff’s lawyer has had four bites at the apple. Enough is enough. United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378-79 (7th Cir.2003).
All this is apart from the futility of the suit. Atkins is the only witness for the plaintiff, and Atkins is dead. His widow would be happy to testify to what he told her had happened to him, but her testimony would be inadmissible hearsay. There is no other evidence to support the charge of unconstitutional conditions of confinement, and no suggestion that any defendants, or other members of the prison staff, are prepared to support the plaintiff’s version of the facts-or, should we say, any one of the plaintiff’s versions.
The district court was correct to dismiss the suit. Affirmed.
Well in this case – there is no facts that would have evidence. So on the left side of my formula there will be a Zero on the right side against plausibility there would be the plaintiff’s multiple amendments with contradictions as well as allegations that are not believable.
For analysis I want to leave you some complaints that have survived the 12(b)(6) motion to dismiss.
LINDA HARPER, Plaintiff, -against- NEW YORK CITY, HOUSING AUTHORITY, Defendant. 09-Civ-5303 (SHS) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2009 U.S. Dist. LEXIS 105427 – November 6, 2009, Decided
November 6, 2009, Filed
DiPetto v. United States Postal Service
Boykin v. KeyCorp
ARISTA RECORDS LLC BMG LLC BMG UMG LLC v. DOE 16
I am not a lawyer and have no training in law and some of you attorneys are laughing at me, but I do have training in logic and data discrimination for I have a degree in Computer Science and over 2o years experience, 17 years managing the information systems of my defendant.
Excuse my short hand, I am pro se and my writings should be liberally construed 🙂 This blog was really created to give Pro se litigants a fighting chance against a formidable Wall that experts of the court are struggling with.
Yours truly Reggie
Resources
Luke Meier
Why Twombly is Good Law (But Poorly Drafted) and Iqbal will be Overturned
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734791
Joseph Seiner
The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273713
Suja Thomas’ The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly http://www.lcark.edu/livewhale/downlaod/?id=4099
Suja Thomas – Oddball Iqbal and Twombly and Employment Discrimination –
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1680591
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1442786
Ryan Gist
Transactional Pleading – A Proportional Approach to Rule 8 in the Wake of Bell Atlantic Corp v Twombly
Nonnegligible Probability Formula for Federal Pleadings 