Pleading in the information age

New York University Law Review

Volumn 85, Issue 6, 2010, Pages 2170-2208

  Reardon, Colin T ^a  

^a Honorable Louis Pollak   (United States)

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EID: 78649355119     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (351)

1. 550 U.S. 544 (2007).
2. 129 S. Ct. 1937 (2009).
3. Commentators have offered several major criticisms of the decisions. First, they have faulted the Court for bypassing the Federal Rules amendment process.
4. See, e.g., Kevin C. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821, 846-47 (2010) (expressing "regret" over Court's decision to bypass rulemaking process, because "a design change of this magnitude should occur only after a thorough airing of the choices"). Second, they have criticized the decisions for creating an opaque doctrinal standard that is difficult to apply consistently.
5. See, e.g., Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Access, 94 IOWA L. REV. 873, 881-83 (2009) (discussing confusion created by Twombly). Third, they have criticized the Court's dismissal of the effectiveness of judicial case management techniques.
6. See, e.g., Edward D. Cavanagh, Twombly, The Federal Rules of Civil Procedure and the Courts, 82 ST. JOHN'S L. REV. 877, 882-89 (2008) (arguing that Twombly demonstrated that Court was "out of touch with the judicial system that it is charged with managing" by relying on 1989 law review article critical of discovery costs and ignoring amendments to discovery rules made since 1993). In addition, commentators have offered the information asymmetry criticism discussed in Part I.C, infra.
7. See, e.g., A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 461 (2008) ("Twombly rankles because it is inconsistent with the liberal pleading regime established by the Federal Rules and previously embraced by the Court itself.")
8. see also infra notes 12-13 and accompanying text (discussing Conley v. Gibson, 355 U.S. 41 (1957)).
9. See A. Benjamin Spencer, The Restrictive Ethos in Civil Procedure, 78 GEO. WASH. L. REV. 353, 355-56 (2010) ("[T]he Federal Rules were originally imbued with a clear preference for merits-based, accurate resolutions of disputes Simplified pleading and broad discovery were designed to promote resolution of disputes on the substantive merits as opposed to procedural technicalities." (citations omitted)).
10. See infra Part I.C.
11. See Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009) ("A court shall not dismiss a complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible"); Notice Pleading Restoration Act, S. 1504, 111th Cong. (2009) (similar).
12. See FED. R. CIV. P. 56(f) ("If a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.").
13. For discussions of the growing resemblance between the motion to dismiss and summary judgment
14. see generally Richard A. Epstein, Bell Atlantic v. Twombly: How Motions To Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. & POL'Y 61 (2007)
15. Suja A. Thomas, The New Summary Judgment Motion: The Motion To Dismiss Under Iqbal and Twombly, 14 LEWIS & CLARK L. REV. 15 (2010).
16. Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 10 (1st Cir. 2007) (noting that Rule 56(f) "provides a useful safety valve" when parties need more time to respond to summary judgment motions).
17. Under Rule 8, a complaint need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The Federal Rules, through Rule 9(b), require heightened fact pleading only in cases involving fraud or mistake. FED. R. CIV. P. 9(b). For a discussion of the intent of the framers of the Federal Rules to establish a notice pleading regime distinct from code pleading
18. see Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 990-93 (2003).
19. 355 U.S. 41, 47 (1957) ("[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim.").
20. 355 U.S. at 45-46.
21. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 577 (2007) (Stevens, J., dissenting) (noting that Court cited Conley's "no set of facts" language "in a dozen opinions").
22. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (rejecting heightened pleading standard for employment discrimination cases)
23. Leatherman v. Tarrant Cnty. Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993) (rejecting heightened pleading standard for civil rights cases against municipalities). See generally Fairman, supra note 11 (chronicling lower courts' imposition of heightened pleading standards in types of actions considered likely to be frivolous).
24. Twombly, 550 U.S. at 570 (requiring complaint to contain "enough facts to state a claim to relief that is plausible on its face").
25. The plaintiffs alleged that the Baby Bells, which were the remnants of the 1984 breakup of the AT&T monopoly, conspired to restrain competition in the market for local phone services in the late 1990s. Twombly, 550 U.S. at 550-51. For a comprehensive account of the facts and procedural history of Twombly and the federal government's efforts to foster competition in the telecommunications industry
26. see Epstein, supra note 9, at 72-76, 83-94.
27. The closest thing to direct evidence of a conspiratorial agreement was the public statement, made by the president of one of the defendants, that entering a rival's territory "might be a good way to turn a quick dollar, but that doesn't make it right."
28. Twombly, 550 U.S. at 551. The Court gave little weight to this ambiguous statement
29. see id. at 568 n.13, and, as Richard Epstein points out, "it defies common sense to think that any participant would announce its illegal behavior to a newspaper reporter."
30. Epstein, supra note 9, at 91. 19 Specifically, plaintiffs alleged that the defendants each prevented competitors from entering into their local markets and refused to enter each other's markets. Twombly, 550 U.S. at 551 (citing Consolidated Amended Class Action Complaint ¶ 51
31. Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174 (S.D.N.Y. 2003) (No. 02 Civ 10220)). 20 Id. at 553-54 (noting that "conscious parallelism," standing alone, does not violate the Sherman Act). The Court found plaintiffs' allegations of parallel conduct "just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market."
32. Id. at 554. It also noted that each company had strong economic incentives to resist incursions into its own territory from competitors.
33. Id. at 566.
34. Id. at 557;
35. see also id. at 570 (requiring complaint to contain "enough facts to state a claim to relief that is plausible on its face").
36. Id. at 563. The Court also put new emphasis on the word "show" in Rule 8, noting that despite the Federal Rules' elimination of detailed fact pleading, "Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief."
37. Id. at 555 n.3.
38. See, e.g., Moss v. U.S. Secret Serv., 572 F.3d 962, 968 (9th Cir. 2009) ("Much confusion accompanied the lower courts' initial engagement with Twombly.")
39. Scott Dodson, Comparative Convergences in Pleading Standards, 158 U. PA. L. REV. 441, 458-60 (2010) (summarizing academic debates about meaning and scope of Twombly).
40. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 (1971) (creating implied cause of action against federal actors for constitutional violations).
41. 129 S. Ct. 1937 (2009).
42. See id. at 1949 ("[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" (quoting Twombly, 550 U.S. at 570))
43. Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 19 (2010) ("[T]he Iqbal majority did not once use the word 'notice' in its opinion or cite the Court's other basic pre-Twombly decisions.").
44. Iqbal, 129 S. Ct. at 1953 ("Twombly expounded the pleading standard for 'all civil actions'" (quoting FED. R. CIV. P. 1)).
45. The Court considered this framework to be implicit in Twombly. See id. at 1950 ("Twombly illustrates the two-pronged approach.").
46. Id. In the Court's view, courts are not bound to accept as true "a legal conclusion couched as a factual allegation."
47. Id. (quoting Twombly, 550 U.S. at 555). As a result, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949.
48. Id. at 1950. If the facts do not allow the court "to infer more than the mere possibility of misconduct," then the complaint "has not 'show[n] that the pleader is entitled to relief.'" Id. (alteration in original) (quoting FED. R. CIV. P. 8(a)(2)).
49. Id. at 1942
50. see also Iqbal v. Hasty, 490 F.3d 143, 149 n.3 (2d Cir. 2007) (listing twenty-one claims leveled against various defendants).
51. Iqbal, 129 S. Ct. at 1944 (noting that complaint "names Ashcroft as the 'principal architect' of the policy and identifies Mueller as 'instrumental in [its] adoption, promulgation, and implementation'" (alteration in original) (quoting First Amended Complaint and Jury Demand ¶¶ 10-11, Elmaghraby v. Ashcroft, No. 04 CV 01809 JG SMG, 2005 WL 2375202 (E.D.N.Y. Sept. 27, 2005) (04 CV 1809 (JG) (JA))).
52. Id. at 1949 (noting plaintiff's supervisory liability theory).
53. Id. (rejecting notion that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution"). This substantive law holding may have had a decisive effect on the outcome of the case.
54. See Edward Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473, 497 (2010)
55. (describing supervisory liability holding as "a crucial step in concluding that the Iqbal complaint was insufficient" and noting that "[n]owhere does the majority in Iqbal state that it would be implausible to infer that Attorney General Ashcroft knew about, but did nothing to stop, the actions of his subordinates").
56. But see Iqbal, 129 S. Ct. at 1958 (Souter, J., dissenting) (arguing that majority's supervisory liability holding "has no bearing on its resolution of the case").
57. Iqbal, 129 S. Ct. at 1944 (noting, for example, allegations that Ashcroft was policy's "principal architect," that Mueller was "instrumental" in its adoption, that policy was "approved by Defendants Ashcroft and Mueller in discussions in the weeks after September 11, 2001," and that Ashcroft and Mueller "each knew of, condoned, and willfully and maliciously agreed to subject" Iqbal to policy).
58. But see A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 LEWIS & CLARK L. REV. 185, 192 (2010) (describing allegations in Iqbal as "undeniably non-conclusory and factual in nature").
59. Iqbal, 129 S. Ct. at 1952.
60. Professors Bone and Spencer have offered two leading-and similar-accounts of plausibility. See Bone, supra note 3, at 885 (suggesting that plausibility is judged against a "baseline," defined as "the normal state of affairs for situations of the same general type as those described in the complaint")
61. A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH. L. REV. 1, 1 (2009) (arguing that plausibility depends on whether "a complaint describe[s] events about which there is a presumption of impropriety"). Others have offered alternative descriptions of plausibility.
62. See Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. 1293, 1298 (2010) (providing "transactional" account of plausibility). Or they have rejected the concept as hopelessly malleable.
63. See Clermont & Yeazell, supra note 3, at 841 ("[M]easuring plausibility seems obviously unclear. This measure lies entirely in the mind of the beholder." (citation omitted)).
64. Compare Hartnett, supra note 35, at 491 ("A conclusory allegation is one that asserts 'the final and ultimate conclusion which the court is to make in deciding the case for him,' that is, one that alleges an element of a claim." (quoting CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 234 (2d ed. 1947))),
65. with Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 NOTRE DAME L. REV. 849, 868 (2010) ("[W]hat qualifies an allegation as a 'legal conclusion' or as too 'conclusory' is not that it tracks the elements of a legal claim too closely. Rather it is that the allegation states facts at too high a level of generality." (citation omitted)). Scholars have also criticized the conclusory/nonconclusory distinction for being "unclear" and "subjective."
66. E.g., Clermont & Yeazell, supra note 3, at 841.
67. See generally Fairman, supra note 11 (discussing lower court departures from Conley).
68. See, e.g., Dodson, supra note 23, at 461-62 ("[T]he 'plausibility' standard is a factualsufficiency standard that is more restrictive than the previously prevailing factual standard.)
69. Spencer, supra note 38, at 5 (arguing that Twombly and Iqbal "ratif[ied] the heretofore renegade practice of imposing fact-pleading requirements").
70. See Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553, 598-99 (2010) (finding that rate of grants of motions to dismiss with leave to amend rose from 6% prior to Twombly to 19% after Iqbal, while grants with prejudice fell from 40% to 37%)
71. see also Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (holding that Twombly and Iqbal overruled liberal pleading standard for employment discrimination articulated in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), since Swierkiewicz was based upon Conley).
72. The contextual nature of plausibility may yet limit its impact.
73. See Miller, supra note 26, at 38 (noting that variations in "the substantive law governing a case, whether the action turns on objective facts or subjective matters such as intent or motive of the parties, the complexity or simplicity of the case, and whether or not the litigation will be resource consumptive" may limit exercise of judicial discretion).
74. Epstein, supra note 9, at 98
75. see also Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 LEWIS & CLARK L. REV. 157, 159 (2010) ("The paradigm of federal litigation when the Federal Rules of Civil Procedure took effect in 1938 was diversity-jurisdiction tort, contract, debt, and other business disputes, as well as patent claims.").
76. Wasserman, supra note 43, at 160.
77. The Supreme Court's 1986 summary judgment "trilogy" "brought into the battle against excess litigation a weapon held largely in reserve by the federal courts since the promulgation of the Federal Rules in 1938."
78. Samuel Issacharoff & George Loewenstein, Second Thoughts About Summary Judgment, 100 YALE L.J. 73, 73-74 (1990)
79. see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
80. Anderson v. Liberty Lobby, 477 U.S. 242 (1986)
81. Matsushita Elec. Indus. Corp. v. Zenith Radio, 475 U.S. 574 (1986). Other procedural developments designed to respond to the perception of a litigation explosion have included "greater judicial control over discovery, more demanding application of Rule 9(b), and greater prefiling inquiry obligations under Rule 11."
82. Arthur R. Miller, The Pretrial Rush to Judgment: Are the 'Litigation Explosion,' 'Liability Cases,' and Efficiency Clich ́es Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. REV. 982, 1015 (2003).
83. See infra note 124 (discussing Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U.S.C. (2006)).
84. For a skeptical account of the "litigation explosion" and accompanying procedural reforms, see generally Miller, supra note 45.
85. For a discussion connecting plausibility pleading and earlier reforms, see Miller, supra note 26, at 9-11.
86. See Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings, 88 B.U. L. REV. 1217, 1231-33 (2008) (describing "high discovery expenses" and "nonmeritorious litigation" as Twombly's "animating policy purposes")
87. Spencer, supra note 4, at 453 (suggesting that Twombly was motivated by "troika of policy concerns-litigation expense, discovery abuse, and overburdened caseloads").
88. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 560 n.6 (2007).
89. Id. at 559 (internal quotation marks omitted).
90. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (noting that litigation, although necessary, "exacts heavy costs" in time and resources, detracting from "proper execution of the work of the Government").
91. Discovery costs can vary dramatically depending on the nature of a suit and the stakes involved.
92. See Thomas W. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. REV. 525, 530-31 (1998) (reporting survey results indicating that 15% of cases had no discovery and that discovery expenses were 3% of amount at stake in median case but were 32% or more of amount at stake in 5% of cases).
93. See Scott A. Moss, Litigation Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 DUKE L.J. 889, 894 (2009) ("[E]-discovery can cost tens or hundreds of thousands of dollars in even fairly typical cases.").
94. Commentators have struggled to define a "frivolous" suit.
95. See Robert G. Bone, Modeling Frivolous Suits, 145 U. PA. L. REV. 519, 528 (1997) (noting "lack of a clear and generally accepted definition of a 'frivolous suit'"). Nonetheless, as Paul Stancil notes, the "paradigmatically" frivolous suit is one in which both the plaintiff and the defendant objectively determine that there is zero risk that the defendant will be held liable.
96. Paul Stancil, Balancing the Pleading Equation, 61 BAYLOR L. REV. 90, 121 (2009). In such a situation, the defendant may nonetheless have a powerful incentive to settle because he faces pretrial litigation costs. Id. Despite knowing that her case is meritless, the plaintiff will have an incentive to sue if the defendant's pretrial costs exceed her own pretrial costs.
97. Id. at 122. If the other conditions described in Stancil's model hold, the plaintiff will be able to obtain a nuisance settlement.
98. Id. at 120-24.
99. See Stancil, supra note 55, at 142 ("[F]or certain cases involving significant pretrial cost disparity, even mutual foreknowledge of frivolousness will be insufficient to deter filing."). Plaintiffs face low pretrial costs in cases "for which there will be little inquiry into the plaintiff's activities or damages"-for example, "fraud on the market" claims.
100. Id. At 127. By the same token, a defendant's costs tend to be highest in cases focusing on the defendant's conduct.
101. See id. at 130 (noting that costs are highest where "scope and depth of genuinely discoverable information is significant" and there is no "obvious factual transaction around which to limit discovery")
102. see also Twombly, 550 U.S. at 559 (noting "obvious" expense of discovery in Twombly, nationwide class action "against America's largest telecommunications firms (with many thousands of employees generating reams and gigabytes of business records) for unspecified (if any) instances of antitrust violations that allegedly occurred over a period of seven years").
103. In 2009, 276,397 civil cases were commenced in United States district courts, including 33,761 civil rights cases, 1674 securities cases, 812 antitrust cases, and 741 environmental cases. JAMES C. DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2009 ANNUAL REPORT OF THE DIRECTOR 144-46 (2010), available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2009/JudicialBusinespdfversion.pdf
104. see also Epstein, supra note 9, at 70-71 (describing potentially "great" discovery costs in antitrust cases and suits against local governments)
105. Stancil, supra note 55, at 127 (noting cost disparities in "fraud on the market" and employment discrimination claims).
106. See, e.g., Miller, supra note 26, at 53 (arguing that frequently voiced concerns about frivolous litigation and discovery costs "often reflect[] ideology or economic self-interest" and present picture of civil litigation that "is incomplete and is distorted by a lack of definition and empirical data").
107. Spencer, supra note 38, at 2.
108. E.g., Scott Dodson, New Pleading, New Discovery, 109 MICH. L. REV. 53, 73 (2010) (noting difficulties created by new pleading standard "for plaintiffs who are faced with information asymmetry" and proposing limited presuit discovery as solution)
109. Hoffman, supra note 49, at 1261 (arguing that "the Twombly Court assume[s] that it will be obvious when allegations made are 'hopeless,'" but that this assumption "ignores information asymmetries").
110. Dodson, supra note 60, at 53.
111. Spencer, supra note 4, at 481.
112. Bone, supra note 39, at 873
113. see also Richard A. Nagareda, 1938 All Over Again? Pre-Trial as Trial in Complex Litigation, 60 DEPAUL L. REV. (forthcoming 2011) (manuscript at 28-29), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1568127 (arguing that Twombly and Iqbal "effectively inhibit[] the emergence of an informational base for rulings on motions to dismiss," creating same danger "as in any other regulatory enterprise in which the would-be regulator systematically lacks pertinent information- namely, that the regulator will act based upon ideological or at least idiosyncratic predilections");
114. Spencer, supra note 38, at 35 (arguing that information asymmetries are particularly acute in actions that "require suppositions about subjective motivations, states of mind, or concealed activities").
115. Miller, supra note 26, at 45.
116. Id. at 18.
117. Id.; see also Hoffman, supra note 49, at 1262 ("[C]orporate wrongdoing suits, civil rights suits, libel suits, intellectual property claims, and labor and employment matters are prominent examples where prospective claimants may face challenges and varying degrees of access to information.")
118. Spencer, supra note 38, at 33 (arguing that "products liability, civil conspiracy, antitrust, and civil rights claims" face information asymmetry problems).
119. Dodson, supra note 60, at 68 (emphasis added); see also Bone, supra note 39, at 873 (arguing that information regarding "the defendant's state of mind" and "actions taken in private" is "often within the exclusive knowledge of the defendant and the plaintiff will usually have considerable difficulty learning much about it before filing").
120. See generally Hatamyar, supra note 42
121. Alex A. Reinert, The Costs of Heightened Pleading, 86 IND. L.J. (forthcoming 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666770. These studies, as Reinert acknowledges, are subject to numerous methodological limitations which suggest that their results should be interpreted with great caution.
122. See id. (manuscript at 12-13) (discussing difficulties with studies that "focus[] on the differences in dismissal rates pre-Twombly, pre-Iqbal, and post-Iqbal"); id. (manuscript at 48-50) (discussing and responding to methodological objections to his own attempt to assess how cohort of appellate cases from 1990s that survived under Conley standard would fare under plausibility standard).
123. See generally, e.g., Bone, supra note 39
124. Stephen B. Burbank, Pleading and the Dilemmas of "General Rules," 2009 WIS. L. REV. 535
125. Cavanagh, supra note 3
126. Dodson, supra note 60
127. Dodson, supra note 23
128. Hartnett, supra note 35
129. Hatamyar, supra note 42;
130. Hoffman, supra note 49
131. Miller, supra note 26
132. Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. ILL. L. REV. 1011
133. Spencer, supra note 38
134. Spencer, supra note 4
135. Steinman, supra note 38
136. Thomas, supra note 9
137. Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 MINN. L. REV. 1851 (2008).
138. Richard Epstein is the notable exception to this trend. See infra notes 72-74 and accompanying text.
139. See generally Bone, supra note 55
140. Stancil, supra note 55.
141. See, e.g., Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 VAND. L. REV. 1609, 1610-11 (1999) ("By generating comprehensive records of online behavior, information technology can broadcast an individual's secrets in ways that she can neither anticipate nor control. Once linked to the Internet, the computer on our desk becomes a potential recorder and betrayer of our confidences.")
142. Daniel J. Solove, Privacy and Power: Databases and Metaphors for Information Privacy, 53 STAN. L. REV. 1393, 1393 (2001) ("[T]he problem is the powerlessness, vulnerability, and dehumanization created by the assembly of dossiers of personal information where individuals lack any meaningful form of participation in the collection and use of their information.").
143. See Epstein, supra note 9, at 74 ("The plaintiff class alleged no direct evidence of agreement, save arguably one isolated public comment six years later, but pointed instead to public, inherently innocent facts such as their contiguous territory and the clear advantage that each side is said to gain from having as little competition as possible."). Epstein likewise emphasized that plaintiffs relied on evidence "that the defendant firms have extensive opportunities to collude with each other because they are drawn together under a common scheme of regulation," noting that such evidence will be "easily available against all regulated industries," particularly network industries-like telecommunications- in which firms of necessity must interact with each other to connect their networks.
144. Id. at 84-85.
145. Id. at 84.
146. Id. at 81.
147. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.4 (2007) ("Commentators have offered several examples of parallel conduct allegations that would state a [Sherman Act] § 1 claim under [the plausibility standard]. [For example,] 'complex and historically unprecedented changes in pricing structure made at the very same time by multiple competitors, and made for no other discernible reason' would support a plausible inference of conspiracy." (quoting Brief for Respondents at 37, Twombly, 550 U.S. 544 (No. 05-1126))).
148. See generally sources cited supra note 69. A notable exception is Dawinder S. Sidhu, First Korematsu and now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court's Disregard for Claims of Discrimination, 58 BUFF. L. REV. 419, 429-30, 448 (2010) (discussing OIG REPORT, infra note 77). Sidhu was the author of an amicus brief in support of Iqbal. Id. at 428.
149. See generally OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, THE SEPTEMBER 11 DETAINEES: A REVIEW OF THE TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE INVESTIGATION OF THE SEPTEMBER 11 DETAINEES (2003), available at http://www.justice.gov/oig/special/0306/full.pdf [hereinafter OIG REPORT]. Iqbal's complaint was filed after the OIG Report was published, and Iqbal's merits brief in the Supreme Court encouraged the Court to examine it, noting that although his "complaint does not incorporate the OIG Report in its pleadings, the courts below have looked to the report to place respondent's allegations in context."
150. Brief for Respondent Javaid Iqbal at 4, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No. 07-1015).
151. The Office of the Inspector General also published a shorter supplementary report presenting the results of the Office's investigation of allegations that staff members at a detention center in Brooklyn physically and verbally abused detainees. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, SUPPLEMENTAL REPORT ON SEPTEMBER 11 DETAINEES'ALLEGATIONS OF ABUSE AT THE METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK (2003), available at http://www.justice.gov/oig/special/0312/final.pdf.
152. USA PATRIOT Act directing the OIG to examine allegations of civil rights violations by Department of Justice personnel. See id. at 3 & n.6 (citing USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 1001, 115 Stat. 272, 391 (codified at 5 U.S.C. app. § 8E (2006)).
153. Id. at 6-7.
154. Id. at 197 ("[T]he evidence indicates a pattern of physical and verbal abuse by some correctional officers at the [Metropolitian Detention Center] against some September 11 detainees, particularly during the first months after the attacks.")
155. see also Iqbal v. Hasty, 490 F.3d 143, 149 n.3 (2d Cir. 2007) (identifying plaintiffs' various claims including excessive force claim against warden and staff of detention facility where Iqbal was held).
156. The district court, writing before Twombly, found that the OIG Report "suggests the involvement of Ashcroft, the FBI Defendants, and the BOP Defendants in creating or implementing a policy under which plaintiffs were confined in restrictive conditions until cleared by the FBI from involvement in terrorist activities." Elmaghraby v. Ashcroft, No. 04 CV 01809 JG SMG, 2005 WL 2375202, at *20 n.20 (E.D.N.Y. Sept. 27, 2005). The district court highlighted several passages from the OIG Report indicating the direct personal involvement of various defendants in the challenged policy, including a statement by a senior Department of Justice official that the policy of holding September 11 detainees until cleared by the FBI "came from 'at least' the Attorney General."
157. Id. (quoting OIG REPORT, supra note 77, at 38). Writing after Twombly, the Second Circuit agreed that Iqbal's procedural due process claim was adequately pleaded, but it found that the defendants' conduct did not violate a clearly established procedural due process right and accordingly ordered the claim dismissed. Hasty, 490 F.3d at 167-68. Given the OIG Report's detailed support for plaintiff's procedural due process claim, it seems hard to dispute that that claim would have survived plausibility review under the test articulated in the Supreme Court's decision in Iqbal.
158. See OIG REPORT, supra note 77, at 70 (criticizing "indiscriminate and haphazard manner in which the labels of 'high interest,'of interest,'or'of undetermined interest' were applied to many aliens who had no connection to terrorism").
159. Id. at 70-71 (finding that clearance process was "understaffed" and characterized by "substantial delay[s]").
160. The OIG Report provided evidence of racial discrimination by correctional officers where Iqbal was held. See id. at 143-44, 177, 185 (noting statements by detainees that correctional staff had used racial and ethnic slurs in referring to them). However, the OIG Report provided scant support for the claim that higher level officials-such as Ashcroft and Mueller-had imposed harsher conditions of confinement on the September 11 detainees because of their religious beliefs and race.
161. See generally id.; accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009) (noting that complaint "alleges that various other defendants, who are not before us, may have labeled him a person 'of high interest' for impermissible reasons," but holding that the complaint did not adequately allege that Ashcroft and Mueller "purposefully housed detainees in [more restrictive conditions] due to their race, religion, or national origin"). Revealingly, the district court, which cited theOIG Report at length for the procedural due process claim, see supra note 81, did not cite the OIG Report in its discussion of Iqbal's racial and religious discrimination claims against higher-level officials, stating instead that it could not "conclude as a matter of law that there is no set of facts consistent with plaintiffs' allegations that could entitle them to relief."
162. Elmaghraby, 2005 WL 2375202, at *28-29.
163. Iqbal did attempt to use the OIG Report as support for his racial and religious discrimination claim against Ashcroft and Mueller. See Brief for Respondent Javaid Iqbal at 4-5, Iqbal, 129 S. Ct. 1937 (citing OIG REPORT, supra note 77, at 12-13, 16, 21, 118)
164. see also Sidhu, supra note 76, at 448 (sympathetically recounting Iqbal's argument). However, the pages of the OIG Report cited by Iqbal provide little direct evidence in support of the specific claim Iqbal brought against Ashcroft and Mueller. For example, the most troubling passage cited suggested that FBI officials in New York pursued leads that were based-at least in part-on a suspect's race. See OIG REPORT, supra note 77, at 16 ("[L]eads that resulted in the arrest of a September 11 detainee often were quite general in nature, such as a landlord reporting suspicious activity by an Arab tenant."). However, this passage and the others cited provided little evidence that Ashcroft and Mueller imposed harsher conditions of confinement upon detainees after they were arrested-the conduct that was the basis for Iqbal's complaint-on the basis of race or religion. Accord Iqbal, 129 S. Ct. at 1952 ("[E]ven if the complaint's well-pleaded facts give rise to a plausible inference that respondent's arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent's complaint challenges neither the constitutionality of his arrest nor his initial detention.").
165. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Supreme Court granted certiorari only on the racial and religious discrimination claims against Ashcroft and Mueller.
166. Id. At 1942-43.
167. Nagareda, supra note 63 (manuscript at 32)
168. see also Iqbal, 129 S. Ct. at 1951-52 ("It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the [September 11] attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims All [the complaint] plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.").
169. See Inspector General Act of 1978, Pub. L. No. 95-452, § 2(1), 92 Stat. 1101, 1101 (codified as amended in scattered sections of 5 U.S.C. (2006)) (listing twelve departments and agencies); Inspector General Act Amendments of 1988, Pub. L. No. 100-504, § 102(a), 102 Stat. 2515, 2515 (codified as amended in scattered sections of 5 U.S.C. (2006)) (establishing Office of Inspector General in Department of Justice).
170. We might expect, however, that many of the most egregious allegations of civil rights violations will lead to such investigations, as they did in the case of the September 11 detainees.
171. See Bone, supra note 55, at 589 (arguing that strict pleading rules risk "screening out meritorious cases when investigation costs are too high for plaintiffs to obtain the necessary information before filing").
172. See generally CAROLE A. LEVITT & MARK E. ROSCH, THE LAWYER'S GUIDE TO FACT FINDING ON THE INTERNET (3d ed. 2007) (identifying hundreds of websites helpful for factual research).
173. See, e.g., Intellectual Property (IP) Infringement Monitoring, CYBER ALERT, http://www.cyberalert.com/app_intellectual_property_infringement.html (last visited Oct. 21, 2010) (offering "online surveillance for copyright infringements, trademark infringements and other types of IP infringements"). Of course, while the Internet facilitates monitoring of these intellectual property rights, it also enables the rampant violation of such rights, as with music file sharing.
174. See LEVITT & ROSCH, supra note 90, at 79-80.
175. See id. at 535-38 (describing how to use online database NLM Gateway to find medical literature).
176. See Filings and Forms, U.S. SEC. & EXCH. COMM'N, http://www.sec.gov/edgar.shtml (last visited Oct. 21, 2010).
177. See, e.g., RECALLS.GOV, http://www.recalls.gov (last visited Oct. 21, 2010).
178. Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (codified as amended in 5 U.S.C. § 552 (2006)).
179. 5 U.S.C. § 552(a)(2) (2006) (outlining requirements for electronic reading rooms).
180. Modern technology has likely had another, more indirect effect upon factual asymmetries: By lowering the cost of legal research, Internet databases have freed up resources for additional factual investigation. Commercial legal databases such as Lexis and Westlaw "increasingly market their databases to solo and small firm practitioners" and offer "[l]ower cost pricing plans for subscriptions to portions of the database."
181. Randy Diamond, Advancing Public Interest Practitioner Research Skills in Legal Education, 7 N.C. J.L. & TECH. 67, 73 n.16 (2005). Free websites also provide much useful legal information.
182. See, e.g., GOOGLE SCHOLAR, http://scholar.google.com (last visited Oct. 21, 2010) (permitting searches of "[l]egal opinions and journals"); Legal Info. Inst., U.S. Code, CORNELL U. L. SCH., http://www.law.cornell.edu/uscode (last visited Oct. 21, 2010) (searchable version of entire U.S. Code)
183. Securities Class Action Clearinghouse, STAN. L. SCH., http://securities.stanford.edu/ (last visited Oct. 21, 2010) (providing filings related to federal class action securities fraud litigation since 1995).
184. See Elizabeth Chamblee Burch, Litigating Groups, 61 ALA. L. REV. 1, 23 (2009) (discussing example of Yahoo! discussion group formed by plaintiffs in Vioxx litigation).
185. Ashley Phillips & Ki Mae Heussner, Apple Hit with 3G iPhone Lawsuit, ABC NEWS (Aug. 20, 2008), http://abcnews.go.com/Technology/story?id=5617800&page=1.
186. See Brian Michael Goodwin & Lori V. Berke, Informal Witness Investigation, in THE LITIGATION MANUAL: PRETRIAL 202, 208 (John G. Koeltl & John S. Kiernan eds., 1998) ("[A lawyer] may need to hit entire neighborhoods, manufacturing plants, or universitycampuses, interviewing hundreds of persons on the chance that one or two will know something helpful.").
187. See LEVITT & ROSCH, supra note 90, at 255-60 (noting free online telephone directories and fee-for-search sites).
188. See, e.g., KNOW X, https://www.knowx.com/statmnts/priceinfo.jsp (last visited Oct. 27, 2010) (permitting searches for, among other things, marriage and divorce records, lawsuits and judgments, corporate records, bankruptcy filings, and professional licenses).
189. For an example of such research derailing a lawsuit already on file, see Sean Wajert, Informal Discovery Leads to Dismissal in MDL, MASS TORT DEF. (Feb. 2, 2010, 5:52 AM), http://www.masstortdefense.com/2010/02/articles/informal-discovery-leads-to-dismissal-inmdl/ (discussing case in which "plaintiff's claims of severe disability were refuted by Internet (specifically Facebook) photos discovered by defendants that appeared to show plaintiff competing in strenuous high-speed powerboat races").
190. See MONSTER.COM, http://www.monster.com/ (last visited Oct. 21, 2010); Web Site Reviews: Monster.com.
191. FORBES.COM, http://www.forbes.com/bow/b2c/review.jhtml?id=5567 (last visited Oct. 21, 2010) (noting that Monster'srésumé database contains more than 41 million resumes)
192. see also Resume Database, CAREERBUILDER, http://www.careerbuilder.com/jobposter/products/searchresumesinfo.aspx? (last visited Oct. 21, 2010) (offering employers access to "36 million potential candidates"). Résumé searches are particularly useful for identifying a company's former employees, who may be more willing than current employees to talk about wrongdoing at the company. Communications with former employees are also less likely to be barred by ethical no-contact rules
193. See Mark H. Aultman, The Story of a Rule, 2000 LAW REV. MICH. ST. U. DETROIT C.L. 713, 737 (noting that in most states "former employees are not included" under ethical no-contact rules). Such searches can generate leads for witness interviews, which may, in turn, provide enough factual information to survive the plausibility standard
194. Using Monster.com in this fashion would appear to violate the site's terms of use. See Terms of Use, MONSTER.COM, http://my.monster.com/terms/default.aspx (last visited Oct. 21, 2010) (stating that Monster's "resume database. may be used only for lawful purposes by individuals seeking employment and career information and employers seeking employees"). Nonetheless, in researching this Note this author spoke to a partner at one prominent plaintiff-side firm in New York who confirmed that investigators at his firm regularly searched Monster.com and similar sites in this way. The same firm also searches for former employees of companies it is investigating on the professional networking website LinkedIn.
195. See About Us, LINKEDIN, http://press.linkedin.com/about (last visited Oct. 21, 2010).
196. See Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 613 (1999) ("[I]nformational regulation, or regulation through disclosure, has become one of the most striking developments in the last generation of American law." (emphasis omitted)).
197. Id. at 618 (noting duties to disclose imposed by common law on sellers and establishment of Securities and Exchange Commission during New Deal).
198. Id. at 618-19.
199. See id. at 619, 624 tbl.1 (drawing distinction between "market-enhancing" statutes and statutes that "enhance democratic processes" and listing examples of each). By subjecting those who disclose information to the risk of consumer or political backlash, such statutes may make more coercive forms of regulation-such as direct administrative oversight or private litigation-unnecessary in the first place.
200. See id. at 619 (arguing that where information regulations are in place, "[t]he risk of sanctions from shareholders and state legislatures may well produce. improvement even without regulation").
201. Information regulation is not without drawbacks. As Sunstein notes, "[p]eople have a limited ability to process information" and have difficulty evaluating how to respond to low-probability events (such as the risk of cancer from ingesting a substance).
202. Id. at 627. These criticisms are of less relevance to information processing by plaintiffs' attorneys for several reasons. Plaintiffs' attorneys typically are (and have every economic incentive to be) skilled investigators capable of searching for, and filtering, relevant information efficiently. Plaintiffs' attorneys also often specialize in particular areas of law-employment, antitrust, securities, etc.-which enables them to learn what types of information sources are likely to be most valuable to them. In the context of Internet research, there are investigative handbooks designed to train attorneys on how to effectively use various types of search engines and other databases.
203. See, e.g., LEVITT & ROSCH, supra note 90. In addition, an ever-increasing proportion of the legal profession has grown up with and is comfortable navigating the Internet.
204. However, we might expect that many pro se plaintiffs will have difficulty taking advantage of increases in the availability of information. As Sunstein notes, "[d]isclosure strategies may. have disproportionately little effect on people who are undereducated, elderly, or poor." Sunstein
205. supra note 108, at 628.
206. This Note's claims are therefore limited to plaintiffs represented by attorneys, who are, as a group, more likely to be proficient at gathering and filtering information. For an argument against applying Twombly and Iqbal to pro se plaintiffs.
207. see generally Rory K. Schneider, Comment, Illiberal Construction of Pro Se Pleadings, 159 U. PA. L. REV. (forthcoming 2010) (on file with the New York University Law Review).
208. See Sunstein, supra note 108, at 619-24 (collecting examples)
209. see also William M. Sage, Regulating Through Information: Disclosure Laws and American Health Care, 99 COLUM. L. REV. 1701, 1701 (1999) (assessing various justifications for laws "requiring insurance organizations and health care providers to disclose information to the public").
210. As Richard Epstein notes in his discussion of Twombly, "in many regulated industries, such as securities or telecommunications, all sorts of regulatory proceedings [exist] that can sniff out signs of antitrust violations."
211. Epstein, supra note 9, at 93.
212. 42 U.S.C. § 11023 (2006).
213. Stephen M. Johnson, Junking the "Junk Science" Law: Reforming the Information Quality Act, 58 ADMIN. L. REV. 37, 46 (2006).
214. The same statute permits plaintiffs to bring suit when regulated entities fail to meet their disclosure obligations. 42 U.S.C. § 11046(a)(1) (2006).
215. Johnson, supra note 115, at 46 & n.27 (noting that 1990 amendments to Clean Air Act require facilities storing or handling hazardous substances to prepare and make public risk management plans (citing 42 U.S.C. § 7412(r)(1) (2000); 40 C.F.R. § 68.165 (2000))).
216. Id. at 46 & n.28 (noting that 1996 amendments to Safe Drinking Water Act "require drinking water suppliers to notify consumers within 24 hours of certain violations of the law" and to distribute to consumers annual reports describing "the source and quality of their drinking water, the health and environmental effects of contaminants in their drinking water, and the compliance history of the drinking water supplier" (citing 42 U.S.C. § 300g-3(c) (2000))).
217. See Residential Lead-Based Paint Hazard Reduction Act of 1992, Pub. L. No. 102-550, § 1018, 106 Stat. 3897, 3910-11 (codified at 48 U.S.C. § 4852d (2006)).
218. Pub. L. No. 105-115, § 113, 111 Stat. 2293, 2311 (1997) (codified at 42 U.S.C. § 282(j) (2006)) (directing National Institutes of Health to establish clinical trial "data bank").
219. About ClinicalTrials.gov, CLINICALTRIALS.GOV, http://clinicaltrials.gov/ct2/info/about (last visited Oct. 21, 2010).
220. See, e.g., Barry Meier, Medicine's Data Gap: Selective Disclosure; Two Studies, Two Results, and a Debate Over a Drug, N.Y. TIMES, June 3, 2004, at C1 (discussing controversy over SmithKline Beecham's decision not to publicize negative results of study of antidepressant Paxil).
221. Food and Drug Administration Amendments Act of 2007, Pub. L. No. 110-85, § 801,
222. Stat. 823, 904-22 (to be codified at 42 U.S.C. § 282).
223. Id. § 901, 121 Stat. at 922 (to be codified at 21 U.S.C. § 355(o)).
224. See Securities Act, 15 U.S.C. §§ 77f-77h, 77j (2006) (requiring, among other things, registration of securities publicly offered by companies and issuance of prospectuses in connection with public offerings)
225. Securities Exchange Act, 15 U.S.C. §§ 78l(a), 78m(a)(2) (2006) (requiring, among other things, registration of securities listed and traded on exchange and filing of annual and quarterly forms with SEC).
226. Although securities fraud claims are subject to the more stringent pleading standards enacted in the Private Securities Litigation Reform Act of 1995 (PSLRA), securities law nonetheless provides instructive examples of how disclosure requirements can help plaintiffs overcome factual pleading standards. The PSLRA requires that a plaintiff's complaint identify "each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed." 15 U.S.C. § 78u-4(b)(1) (2006)
227. For allegations of scienter, plaintiffs must, "with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." Id. § 78u-4(b)(2)
228. see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314 (2007) (requiring inference of fraudulent scienter to be "more than merely plausible or reasonable-it must be cogent and at least as compelling as any opposing inference"). Of course, due to the greater stringency of the PSLRA pleading standards, there is a heightened risk that information asymmetries will block meritorious securities claims. For an argument that the PSLRA screens out nonnuisance claims, particularly claims lacking hard evidence of fraud or unusual insider trading
229. see Stephen J. Choi et al., The Screening Effect of the Private Securities Litigation Reform Act, 6 J. EMPIRICAL LEGAL STUD. 35, 37 (2009) ("PSLRA has had a screening effect; a substantial percentage of suits that would have resulted in a nonnuisance settlement prior to the PSLRA would not have been filed after Congress adopted the PSLRA.").
230. See id. § 78p (requiring directors and officers of company to file statement with SEC disclosing sales and purchases of company's securities).
231. See Marilyn F. Johnson et al., Do the Merits Matter More? The Impact of the Private Securities Litigation Reform Act, 23 J.L. ECON. & ORG. 627, 635 (2006) ("To establish intent, plaintiffs' lawyers frequently point to stock sales by executives and directors, arguing that these insiders knowingly perpetrated fraud to inflate stock prices and profit from selling their company stock holdings.").
232. See Stephen J. Choi & A.C. Pritchard, The Supreme Court's Impact on Securities Class Actions: An Empirical Assessment of Tellabs 13 (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 09-016, N.Y.U. Sch. of Law Law & Econ. Research Paper Series, Paper No. 09-34, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457085 ("The presence of. a restatement indicates a higher likelihood of wrongdoing and thus a stronger case for the plaintiffs.")
233. Johnson et al., supra note 125, at 633-34 ("Some of the strongest evidence to satisfy [the material misstatement or omission] requirement available to plaintiffs' lawyers is a violation of generally accepted accounting principles (GAAP) that results in an earnings restatement, which is required only when earnings have been materially misstated."). Restatements can also provide support for an inference of scienter, although courts have generally been unwilling to find that the existence of restatements, without more, establishes an inference of scienter.
234. See, e.g., Ezra Charitable Trust v. Tyco Int'l, Ltd., 466 F.3d 1, 13 (1st Cir. 2006) (holding that existence of restatement "does not raise a significant inference of scienter"). However, where GAAP violations are particularly large in dollar terms, the existence of a restatement may be sufficient to establish scienter.
235. See, e.g., In re MicroStrategy, Inc. Sec. Litig., 115 F. Supp. 2d 620, 637 (E.D. Va. 2000) ("[T]he alleged GAAP violations and the subsequent restatements are of such a great magnitude. as to compel an inference that fraud or recklessness was afoot.").
236. Pub. L. No. 111-203, § 115, 124 Stat. 1376, 1403-06 (2010).
237. For example, the Act permits the newly created Bureau of Consumer Financial Protection to prescribe rules to ensure that the features of financial products are "fully, accurately, and effectively disclosed to consumers."
238. Id. § 1032(a). In addition, the Act grants consumers the right to request information concerning the financial products they obtain
239. id. § 1033(a), and provides for disclosure of information concerning executive compensation.
240. id. § 953, assetbacked securities.
241. id. § 942, and residential mortgages
242. id. §§ 1419-20.
243. See Government in the Sunshine Act of 1976, Pub. L. No. 94-409, 90 Stat. 1241 (codified at 5 U.S.C. § 552b (2006)) (requiring, absent presence of statutorily specified exception, that "every portion of every meeting of an agency shall be open to public observation")
244. Scott M. Noveck, Campaign Finance Disclosure and the Legislative Process, 47 HARV. J. ON LEGIS. 75, 100-06 (2010) (providing overview leading types of campaign finance disclosure laws).
245. 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (2007).
246. Originally enacted in 1966, FOIA creates a court-enforceable right for any member of the public to access federal agency records upon request. Id. For a guide to state freedom of information laws
247. see State FOI Laws, FREEDOM OF INFO. CENTER, http://www.nfoic.org/state-foi-laws (last visited Oct. 21, 2010).
248. See 5 U.S.C. 552(b) (2006) (listing exemptions). One exemption incorporates into FOIA various civil discovery privileges, such as the attorney-client, attorney work-product, and deliberative process privileges.
249. See id. § 552(b)(5) (exempting intra-agency memoranda); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (holding that exemption 5 exempts from disclosure documents privileged in civil litigation). The other exemptions extend to a variety of records that a plaintiff might be able to obtain in discovery, including records concerning secret national security matters, records outlining agency personnel rules, records containing trade secrets and confidential financial information, personnel and medical files, records prepared for law enforcement purposes, and records prepared in the course of the regulation of financial institutions. 5 U.S.C. § 552(b)(1)-(4), (6)-(8) (2006).
250. See PETE WEITZEL, SUNSHINE IN GOV'T INITIATIVE, FEWER REQUESTS, FEWER RESPONSES, MORE DENIALS 2 (2009), available at http://www.sunshineingovernment.org/stats/highlights.pdf ("[A]gencies continue to miss the statutory response deadline in a majority of cases.").
251. Each year, federal agencies process several hundred thousand FOIA requests. See Costs Rise as Work Force Declines, Backlog Soars, SUNSHINE IN GOV'T INITIATIVE, http://www.sunshineingovernment.org/stats/costs98-08.pdf (last visited Oct. 21, 2010) (tracking number of FOIA requests processed annually from 1998 to 2008)
252. see also U.S. DEP'T OF JUSTICE, FREEDOM OF INFORMATION ACT ANNUAL REPORT: FISCAL YEAR 2009, pt. V.B.1 (2009), available at http://www.justice.gov/oip/annual_report/2009/sec5.pdf (indicating 21,793 requests were fully granted and 7339 were partially granted or partially denied by Department of Justice during 2009 fiscal year). Agencies also disclose increasing amounts of information online.
253. See supra notes 96-97 and accompanying text
254. see also Barack Obama, Memorandum of Jan. 21, 2009, 74 Fed. Reg. 4683 (Jan. 21, 2009) (urging agencies to "take affirmative steps to make information public" and to "use modern technology to inform citizens about what is known and done by their Government").
255. See Patricia M. Wald, The Freedom of Information Act: A Short Case Study in the Perils and Paybacks of Legislating Democratic Values, 33 EMORY L.J. 649, 660-61 (1984) (explaining that consumer group used FOIA "to report on unleaded gasoline additives, hazardous denture cleaners, dangerous home car repair ramps, and other unsafe products")
256. id. at 660 (describing FOIA request which uncovered that "[t]ests of drinking water near uranium mines in western New Mexico disclosed high levels of radioactivity and toxic wastes")
257. id. at 661 (providing examples of misuse of government funds uncovered through FOIA).
258. See Accountability for Torture: Documents Released Under FOIA, AM. CIV. LIBERTIES UNION, http://www.aclu.org/accountability/released.html (last visited Oct. 29, 2010) (providing links to numerous documents concerning abuse and torture released in response to ACLU FOIA requests). Of course, actions seeking relief for such abuses may still be blocked by other doctrines, such as the state secrets privilege.
259. See Beth George, Note, An Administrative Law Approach to Reforming the State Secrets Privilege, 84 N.Y.U. L. REV. 1691, 1697-98 (2009).
260. See 20 U.S.C. § 1092(f) (2006) (requiring universities participating in federal student financial aid programs to prepare annual reports concerning campus security policies and crime statistics).
261. Of. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999) (holding that universities "may be liable for their deliberate indifference to known acts of peer sexual harassment").
262. Federal law requires financial aid program participants to disclose racial and gender data for their athletic programs. 20 U.S.C. § 1092(g) (2006). The U.S. Department of Education makes this information available online.
263. See Equity in Athletics Data Analysis Cutting Tool, U.S. DEP'T OF EDUC., http://ope.ed.gov/athletics/ (last visited Oct. 28, 2010) ("This database consists of athletics data that are submitted annually as required by the Equity in Athletics Disclosure Act.").
264. State foster care agencies receiving federal funding must cooperate with the U.S. Department of Health and Human Services in the creation of Child and Family Services Reviews (CFSRs) concerning their compliance with federal child welfare standards
265. See 45 C.F.R. § 1355.31-37 (2009) (outlining requirements for CFSRs)
266. see also Complaint ¶ 98, Dwayne B. v. Granholm, No. 06-13548 (E.D. Mich. filed Aug. 8, 2006) (citing CFSR review findings as evidence that defendants "have long been on notice of the severe failures in the child welfare system they operate").
267. See New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (rejecting government's request for injunction to prevent publication of Pentagon Papers)
268. see also Butterworth v. Smith, 494 U.S. 624, 632 (1990) (prohibiting punishment for publication of lawfully obtained truthful information about matter of public significance "absent a need to further a state interest of the highest order" (quoting Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979))).
269. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (establishing "actual malice" standard for defamation actions brought by public officials).
270. See Communications Decency Act of 1996, 47 U.S.C. § 230(c)(1) (2006)
271. see also Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (noting that Congress created immunity for third party statements made on websites to protect "freedom of speech in the new and burgeoning Internet medium").
272. See Elletta Sangrey Callahan & Terry Morehead Dworkin, The State of State Whistleblower Protection, 38 AM. BUS. L.J. 99, 99 (2000) (noting proliferation of such statutes in recent decades).
273. Elizabeth C. Tippett, The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes Oxley Mean for Employment Law, 11 EMP. RTS. & EMP. POL'Y J. 1, 4 (2007) ("The primary means by which state and federal law has sought to protect whistleblowers is by providing them with a cause of action against their employer if they suffer retaliation for blowing the whistle.").
274. See, e.g., Asbestos School Hazard Detection & Control Act of 1980, 20 U.S.C. § 3608 (2006) (prohibiting retaliation against whistleblowers)
275. Energy Reorganization Act of 1978 § 10, 42 U.S.C. § 5851(a) (2006) (same). The Sarbanes-Oxley Act of 2002 also prohibits retaliation against whistleblowers who pass information to federal law enforcement, to Congress, or to their supervisors. 18 U.S.C. § 1514A (2006).
276. See Orly Lobel, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations, 97 CALIF. L. REV. 433, 442 (2009) (discussing modification of traditional common law at-will employment doctrines to make room for wrongful termination tort).
277. Sarbanes-Oxley Act of 2002, 18 U.S.C § 1513 (2006) (making retaliation against employee who provides to law enforcement "truthful information relating to the commission or possible commission of any Federal offense" crime punishable by up to ten years in prison).
278. See Tippett, supra note 143, at 3, 5 n.23 (summarizing state and federal variations, describing whistleblower protections in Sarbanes-Oxley Act, and noting that majority of states provide protection for disclosures concerning civil rights violations).
279. See Makor Issues & Rights, Ltd. v. Tellabs, Inc., 513 F.3d 702, 711 (7th Cir. 2008) (suggesting that plaintiffs in securities actions can plead complaints "without assuring confidentiality to the employees whom they interview,. [because] it is unlawful for an employer to retaliate against an employee who blows the whistle on a securities fraud").
280. See infra notes 155-56 and accompanying text (noting that government enforcement actions may provide valuable information to private plaintiffs).
281. See Tippett, supra note 143, at 2 (noting that fears of social ostracism limit willingness of many employees to become whistleblowers).
282. For examples of cases providing protection against wrongful retaliation, see Tabb v. District of Columbia, 605 F. Supp. 2d 89, 97-98 (D.D.C. 2009) (refusing to grant defendant's summary judgment motion in action where plaintiff alleged she was wrongfully retaliated for revealing that children in foster care were sleeping in agency offices because of lack of foster homes) and Collins v. Stolzenberg, 970 F. Supp. 303, 304-05 (S.D.N.Y. 1997) (noting jury verdict in favor of and awarding attorneys fees to plaintiff who was fired for exposing "hazardous health and safety conditions" at hospital at which she worked).
283. Pub. L. No. 111-203, 124 Stat. 1376 (2010).
284. The False Claims Act permits private citizens to bring what are known as qui tam actions on behalf of the United States government for acts of fraud against the government. Successful plaintiffs are entitled to receive a portion of the government's recovery. 31 U.S.C. § 3730(d) (2006).
285. Pub. L. No. 111-203, § 922(a), 124 Stat. 1376, 1841-49 (2010). The Dodd-Frank Act also contains a similar provision providing financial incentives to disclose information to the Commodity Futures Trading Commission.
286. Id. § 748, 124 Stat. at 1739-46.
287. It should be noted that unlike the False Claims Act, which allows private plaintiffs to maintain their actions unless the government opts to assume control of the case
288. see 31 U.S.C. § 3730(b)-(c), the Dodd-Frank Act requires the government to prosecute all suits in which whistleblowers are compensated. Pub. L. No. 111-203, § 922(a), 124 Stat. 1376, 1841-49 (2010) (permitting compensation only for "any judicial or administrative action brought by the Commission"). In addition to providing financial incentives, the Dodd-Frank Act also provides anti-retaliation protections for whistleblowers who disclose information to the SEC. Pub. L. No. 111-203, § 922(h), 124 Stat. 1376, 1845-87.
289. See HAROLD S. BLOOMENTHAL, SARBANES-OXLEY ACT IN PERSPECTIVE § 11:1 (2009) ("The Act may also assist plaintiffs' counsel to the extent additional information may become available as the result of increased enforcement activity by the Commission, the [Public Company Accounting Oversight Board], and the Department of Justice resulting from the adoption of the Act.").
290. Assessing relative levels of these kinds of government enforcement over time is beyond the scope of this Note. Enforcement levels depend on a variety of factors, including the priorities of the political party currently in power.
291. See supra note 87 and accompanying text (noting establishment of OIGs by Congress). Similar investigative bodies have also arisen at the state and local level. For example, since its founding in 1944, the jurisdiction of the New York City Commission on Human Rights has steadily expanded and now includes the power to investigate discrimination in employment, housing, and public accommodations, as well as bias-related harassment. History of the Human Rights Commission, N.Y.C. COMM'N ON HUM. RTS., http://www.nyc.gov/html/cchr/html/history.html (last visited Oct. 21, 2010). Recent decades have also seen the expansion of nonprofit advocacy organizations that prepare research reports that can inform litigation by the organization and by those with similar goals.
292. See, e.g., Publications, BRENNAN CENTER FOR JUST., http://www.brennancenter.org/content/resources/publications/ (last visited Oct. 21, 2010) (linking to dozens of research reports concerning, among other topics, voting rights, campaign finance law, and criminal justice reform).
293. COUNCIL OF THE INSPECTORS GEN. ON INTEGRITY AND EFFICIENCY, http://www.ignet.gov/ (last visited Oct. 21, 2010).
294. Id. (noting that OIGs have mandate to "detect and prevent fraud, waste, abuse, and violations of law. in the operations of the Federal Government").
295. See Inspector General Act, 5 U.S.C. app. 3 § 6(a) (2006) (granting OIGs access to "all" agency records, power to subpoena "the production of all information" necessary in performance of their investigations, and power to conduct interviews of agency staff under oath).
296. Of course, not all new agencies armed with investigative powers are effective
297. See, e.g., Theodore W. Wern, Note, Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second Class Agency?, 60 OHIO ST. L.J. 1533, 1580 (1999) (noting criticisms of effectiveness of Equal Employment Opportunity Commission).
298. 580 F.3d 949 (9th Cir. 2009), cert. granted, No. 10-98, 2010 WL 2812283 (U.S. Oct. 18, 2010). Al-Kidd sued former Attorney General John Ashcroft, alleging that he created a policy under which the federal material witness statute was illegally used to preemptively detain him.
299. Id. at 951-52. Al-Kidd's complaint cited DOJ memoranda quoted in the OIG Report "which describe the use of 'aggressive arrest and detention tactics in the war on terror,' including the use of material witness warrants to confine aliens suspected of terrorist involvement."
300. Id. at 954-55 (quoting OIG REPORT, supra note 77, at 12). In finding Al-Kidd's claim that Ashcroft misused the material witness statute plausible, the Ninth Circuit relied, in part, on the complaint's "extensive citations to the OIG Report" to support an inference that Ashcroft was aware of and purposefully supported the "abuses occurring under the material witness statute."
301. Id. at 976.
302. National Security Letters (NSLs) are a type of administrative subpoena used to obtain information from telephone companies and Internet service providers concerning the activities of their subscribers. Doe v. Mukasey, 549 F.3d 861, 864 (2d Cir. 2008). Recipients of NSLs were not permitted to disclose the fact that the FBI sought information from them to anyone other than their attorney or those to whom disclosure was necessary in order to comply with the NSL. 18 U.S.C. § 2709(a), (c) (2006). The report's criticisms of the FBI's misuse of NSLs clearly resonated with the district court
303. see Doe v. Gonzales, 500
304. F. Supp. 2d 379, 395 (S.D.N.Y. 2007) ("[T]he NSL. poses profound concerns to our society, not the least of which, as reported by the OIG, is the potential for abuse in its employment."), aff'd in part & rev'd in part, Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), and the Second Circuit
305. see 549 F.3d at 880 (citing report's conclusion that FBI had violated NSL statute as support for its holding that government must seek judicial review when it imposes nondisclosure requirement for NSLs), both of which found portions of the NSL statute unconstitutional.
306. See also OFFICE OF THE INSPECTOR GEN., DEP'T OF JUSTICE, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION'S USE OF NATIONAL SECURITY LETTERS 124 (2007), available at http://www.justice.gov/oig/special/s0703b/final.pdf ("[T]he FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies."). Although the Doe case began before Twombly and was at the summary judgment stage when the report was released
307. see 500 F. Supp. 2d at 396 (explaining government's motion to dismiss must be considered motion for summary judgment), the weight these courts gave to the report suggests that the plaintiff could have relied on it to survive plausibility review had the case been filed after Twombly.
308. A disturbing example is Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009). In rejecting Arar's Bivens claim arising from the conditions of his confinement in the United States (prior to his extraordinary rendition to Syria), the majority found that Arar failed to adequately specify the actions taken by the individual defendants and therefore failed Iqbal's plausibility standard.
309. Id. at 569. However, as Judge Parker noted in dissent, an OIG Report on Arar's rendition "confirmed the broad contours of Arar's mistreatment" and supported his allegations that high level officials were personally involved in approving the conditions under which he was held.
310. Id. at 618.
311. See FED. R. CIV. P. 11(b) (requiring attorney submitting any pleading to certify that she conducted "an inquiry reasonable under the circumstances"). Of course, it would be a mistake to demand that a potential plaintiff search every nook and cranny of the public domain for information about the defendant.
312. See Miller, supra note 26, at 44 ("It is much too facile to say that the pleader should be obliged to explore the entire public domain."). Nonetheless, as technological and regulatory developments make it easier to cheaply and quickly search for information, it seems fair to expect plaintiffs to engage in more thorough investigations prior to suit.
313. See supra notes 128, 152-54 (noting that recently passed Dodd-Frank Act contains both mandatory disclosure and whistleblower provisions).
314. In this Part, I leave aside the contested doctrinal issue of the "contextual" nature of the plausibility standard. For greater discussion of the debates this issue has triggered, see supra notes 31, 38-39 and accompanying text.
315. See supra Part I.C.
316. See supra note 20 (noting that Twombly defendants had strong incentives to engage in parallel course of conduct even without colluding).
317. For antitrust cases, one solution to the information problem is to look, as the Twombly Court did, to the economic incentives of the defendants within the structure of their industry.
318. See generally Epstein, supra note 9 (analyzing economic incentives of telecommunications firms in Twombly).
319. In addition, such defendants are likely to have less of a presence on the Internet, and their current and former employees may be more difficult to identify and less willing to share information, rendering the Internet less useful as an investigative tool.
320. For an argument that the plausibility standard may block certain kinds of public interest environmental lawsuits
321. see S. Scott Foster, Breaking the Transsubstantive Pleading Mold: Public Interest Environmental Litigation After Ashcroft v. Iqbal, 35 WM. & MARY ENVTL. L. & POL'Y REV. (forthcoming) (manuscript at 14-17), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1564294.
322. See supra notes 136-38 and accompanying text.
323. See Wasserman, supra note 43, at 180 (noting that "FOIA might be useful as a prefiling discovery tool for uncovering formal and official agency policies and memoranda," but not for allegations concerning "a sub rosa policy-a widely accepted custom not reduced to writing or formal rule")
324. see also supra note 131 (discussing FOIA exemptions).
325. In addition, there are some civil rights claims-such as excessive force claims-for which a plaintiff's own firsthand experience should provide an adequate basis of knowledge to survive plausibility review.
326. See, e.g., Poff v. Gempler, No. 09-CV-1165, 2010 WL 1172607, at *2-3 (E.D. Wis. Mar. 23, 2010) (finding prisoner's allegations of use of excessive force and failure to protect by correctional officers adequate under Iqbal).
327. See supra notes 76-83 and accompanying text.
328. Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 LEWIS & CLARK L. REV. 65, 89 (2010).
329. See, e.g., Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) ("[W]hile discriminatory conduct persists, violators have learned not to leave the proverbial 'smoking gun' behind.").
330. See Malveaux, supra note 177, at 89 ("[B]ecause complaints alleging intentional discrimination will often set forth factual allegations consistent with illegal and legal conduct, such complaints are more vulnerable to dismissal under the plausibility standard.")
331. See also Aman, 85 F.3d at 1082 ("Discrimination continues to pollute the social and economic mainstream of American life, and is often simply masked in more subtle forms. It has become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality discriminatory behavior.").
332. See Dodson, supra note 60, at 67-68 (discussing employment discrimination plaintiffs' lack of access to information).
333. By contrast, plaintiffs bringing hostile work environment claims should presumably be able to describe the hostile and unwelcome conduct they witnessed firsthand in their workplace. It thus seems not unreasonable to apply the plausibility standard to such claims.
334. But see Seiner, supra note 69, at 1051 (describing hostile workplace claims and arguing that "plaintiff[s] should not be required to plead the specific acts that comprise the hostile work environment, as this would go well beyond the scope of notice pleading").
335. See supra note 147 and accompanying text (noting state variations in whistleblower protections).
336. By contrast, victims of discrimination in the public sector can access FOIA and its state counterparts, and federal employees have the benefit of federal whistleblower protections.
337. See 5 U.S.C. § 2302(b)(8) (2006) (protecting federal employees against retaliation for disclosing legal violations, gross mismanagement, or dangers to public safety unless such disclosures are specifically prohibited by law).
338. See FREEDOM OF INFOR. CENTER, supra note 130 (providing guide to state freedom of information laws).
339. Contra supra note 7 (noting recent proposals in Congress to revert to notice pleading).
340. See supra note 9.
341. See FED. R. CIV. P. 56(f) ("If a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order."). The Rule seeks to "safeguard non-moving parties from summary judgment motions that they cannot adequately oppose." Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006).
342. C.B. Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 44 (1st Cir. 1998) (quoting Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994)).
343. Professor Epstein has likewise suggested that courts should allow defendants to point to information in the public realm to counter the inferences drawn in a plaintiff's complaint.
344. See supra notes 72-74 and accompanying text. Where this proposal differs from his is in its focus on assessing whether there is enough information in the public realm to justify dismissing a case prior to discovery.
345. In Twombly, for example, the defendants-major telecommunications companies- were heavily regulated entities subject to the authority of the FCC.
346. See Verizon Comms. Inc. v. Law Offices of Trinko LLP, 540 U.S. 398, 411-16 (2004) (discussing regulation of telecommunications industry). Likewise, the plaintiff in Iqbal had access to the extensive research presented in the OIG Report.
347. See supra notes 76-87 and accompanying text.
348. For such a proposal, see generally Dodson, supra note 60. A modified version of Rule 56(f) could be combined with Dodson's proposal as follows: Where a plaintiff succeeds on her modified Rule 56(f) motion by demonstrating that she has had limited access to information about the defendant's conduct, she could be granted limited discovery to attempt to amplify the allegations in her complaint. If this effort is successful, she would proceed to full discovery. The addition of a mechanism like Rule 56(f) to Dodson's proposal could help address one of the risks he acknowledges about limited initial discovery: that it "may open the doors to fishing expeditions that would otherwise be deterred by the investment of filing a formal lawsuit."
349. Id. at 40-41.
350. See supra notes 53-57.
351. Where such disparities are not present, and the risk of nuisance litigation is thus less serious, there should be a presumption that the plaintiff should succeed on her modified Rule 56(f) motion.