Pleading after Tellabs

Wisconsin Law Review

Volumn 2009, Issue 2, 2009, Pages 507-534

  Miller, Geoffrey P ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78650696473     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (4)

1. See, e.g., Hillary A. Sale, Heightened Pleading and Discovery Stays: An Analysis of the Effect of the PSLRA's Internal-Information Standard on '33 and '34 Act Claims, 76 WASH. U. L.Q. 537, 538 (1998).
2. One consequence of the combination of a discovery stay and heightened pleading is that the PSLRA may weed out cases where the evidence of fraud is highly inferential. There is some evidence that the rules have screened out cases that would otherwise have been brought. See T.S. FOSTER ET AL., NAT'L ECON. RESEARCH ASSOCS., TRENDS IN SECURITIES LITIGATION AND THE IMPACT OF THE PSLRA (2000) (finding that a higher percentage of securities-fraud cases have been screened out at the pleading stage post-PSLRA). It also appears, however, that the rules may have eliminated meritorious cases as well as well as frivolous ones.
3. See Stephen J. Choi, Do the Merits Matter Less After the Private Securities Litigation Reform Act?, 23 J.L. ECON. & ORG. 598 (2007) (stating that meritorious as well as frivolous suits appear to have been dismissed at the pleading stage).
4. For an argument that, in consequence, the motion to dismiss under Tellabs contravenes the Seventh Amendment right to jury trial, see Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 MINN. L. REV. 1851, 1882 (2008).