The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Thursday, November 21, 2013
by Lydell C. Bridgeford
Professor Jonah B.
Gelbach of the University of Pennsylvania Law School talks
about research that shows the U.S. Supreme Court's rulings in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have had little effect on
plaintiffs' win rates in summary judgment motions in employment
Gelbach, who served as the principal investigator to the
research, spoke with Bloomberg BNA about the study and its
implications. The study's findings are discussed in a report titled "Measuring the Effects of a
Heightened Pleading Standard under Twombly and
In analyzing 1,068 employment discrimination cases,
researchers found no statistically significant difference in
plaintiffs' win rates on summary judgment in the
pre-Twombly cases compared with the
post-Iqbal cases, the report said.
The Supreme Court cases created a new pleading standard under
Federal Rule of Civil Procedure 12(b)(6), the motion to dismiss for
failure to state a claim, that allows judges to dismiss complaints
in cases in which the plaintiff fails to establish a "plausible''
claim. The research breaks stride with
other Twombly/Iqbal studies by focusing on the
summary judgment stage instead of the motion to dismiss stage.
Gelbach and his team compared data from federal court cases
filed between Oct 1, 2005, and June 30, 2006 (the
pre-Twombly cases), with that from federal court
cases filed between Oct. 1 2009, and June 30, 2010
The legal scholars examined employment discrimination cases
(excluding Americans with Disabilities Act cases) and contract
cases filed in federal district courts, in which a defense summary
judgment motion was ruled on and no pro se plaintiff was
The findings revealed that discrimination plaintiffs won on all
challenged claims in summary judgment in 17.3 percent of the
pre-Twombly cases compared with 17.1 percent of the
post-Iqbal cases, the report noted. The difference of
0.2 percentage points, when the margin of error is considered, is
not statistically significant, the report stated
The research also considered the percentage of cases in which
discrimination plaintiffs won on at least one challenged claim in a
summary judgment motion.
Researchers found that plaintiffs had a
36.6 percent win rate in the pre-Twombly cases compared
with a 38 percent win rate in the post-Iqbal cases, the
report said. The roughly 1.5 percentage point increase for
plaintiffs is not statistically significant when an estimated 3.1
percentage point margin of error is considered, researchers
The report was issued by the
Searle Civil Justice Institute, a nonpartisan public policy
institute based at George
Mason University's Law & Economics Center.
Bloomberg BNA: Why did you decide to examine
the impact of Twombly and Iqbal as the
rulings relate to the summary judgment stage?
Gelbach: The reason why we decided to look
at summary judgment is that summary judgment typically happens
after at least some discovery has taken place. One typically
presumes that summary judgment occurs after most or all of
discovery in a case.
The idea was that if we wanted to try to understand whether
Twombly and Iqbal had had an important
effect on the quality of cases that are getting through the
pleading stages, then we might be able to look at what share of
cases get through to the summary judgment stage when the defendant
challenges the summary judgment.
You can basically think of Twombly and
Iqbal as asking trial court judges to forecast, at
the pleading stage, whether there is likely to be any meat to the
case once discovery happens. If the justices in the majority of
Twombly and Iqbal are right, then the
district court judges should be able to select the weakest cases
and get rid of them early.
So when the pleading standard asks more of plaintiffs, the cases
that get past that stage might be expected to be more favorable to
plaintiffs. If the justices in the majorities in Twombly
and Iqbal are right, then a more demanding standard will
cut off more cases at the pleading pass. So the cases that
are left to go through discovery following the motion to dismiss
stage will be stronger cases.
If we then look at what happens to cases that face summary
judgment motions--the stage after the Twombly and
Iqbal effect is supposed to occur--that might give us a
window as to whether Twombly and Iqbal have
had the effect that the Supreme Court justices who supported those
cases wanted them to have.
Bloomberg BNA: What should individuals who
focus on pleading policy take away from this research?
Gelbach: I don't want to oversell the study's
statistical power. But broadly speaking, if
Twombly and Iqbal really
had positive effects on case quality of the sort I
was talking about earlier, then we would expect plaintiffs would be
winning more at the summary judgment stage in opposition to
defendants' summary judgment motions.
And the reason is that we would expect the weakest cases would
have been filtered out at the Twombly and
Iqbal stage. The results that we see for contract cases seem to suggest at
least some evidence that that's happened. I don't want to claim
that it is definitively or overwhelmingly clear statistically. But
the results are at least indicative.
For the employment discrimination cases, we have not actually
seen in our data any real changes in the frequency with which
plaintiffs are winning at the summary judgment stage against
defense challenges. This suggests that there has not been the kind
of quality increase that the reasoning motivating Twombly
and Iqbal would predict.
There are different possible explanations for that. One of those
explanations is that while some of these weak cases are being
filtered out in the way that Twombly and
Iqbal suggest they should be, perhaps at the same
time some strong cases are also being filtered out by accident.
This could happen if district court judges are having a hard time
predicting which cases in the employment discrimination context are
likely to wind up with material evidence post discovery and which
The question arises as to why that would happen. The answer that
some critics of Twombly and Iqbal offer
is that there are some fundamental differences between contract
cases and employment discrimination cases. In contract cases,
you would expect that the plaintiff has a pretty good ability to
explain why he or she thinks there has been a breach in the
contract or other contractual problems in the case.
In the employment discrimination context, there is a concern
that plaintiffs might not have access to the data they need to show
the court at the early stages of litigation that their complaint is
really plausible. The employer might control information [related to the claim].
It is the differences in access to information across different
type of cases that might potentially explain why we are seeing no
changes in the employment discrimination cases summary judgment
Bloomberg BNA: Were you surprised by the
Gelbach: I am not particularly surprised. The
findings were entirely in line with what I thought would be
Bloomberg BNA: Why are legal
scholars fascinated with these two cases, which were decided in
2007 and 2009?
Gelbach: Twombly and
Iqbal are blockbuster cases in that they changed the
standards for getting in the door to federal courts. They
potentially affect an enormous array of cases. Up until now, the
formal standard for getting past the pleading stage was really
And even cases that didn't seem to be affected by the pleading
standards might have been affected. For example,
Twombly and Iqbal might have changed
the amount of money paid in a settlement that would have been
reached before the case gets filed. And settlement amounts might
also have changed in cases that would have been filed before
Twombly but settled before the motion to dismiss
We could have big changes in the share of cases that parties are
willing or able to settle at all. So even though not that many
cases actually face these motions, many more cases could be subtly
affected then might be apparent. Another reason why Twombly and Iqbal have
been so controversial is that many liberal critics of the Supreme
Court see these cases as fitting into a pattern of tightened up
access to the federal courts. One can point to exceptions to that
pattern, but that is perception among some quarters for sure.
Bloomberg BNA: Do the findings
raise other legal issues that you think legal scholars should explore in the future?
Gelbach: For the most part, this was a
pretty focused project. We knew from the start what we wanted to
analyze. The heightened pleading standard has been a heated policy
debate. I do think that there is something for everyone in this
report; it is not a slam dunk for one side of the debate. Who
knows? Maybe it will be a bit of a Rorschach test in that sense.
However, it would have been nice to have more data, because I think
if we had bigger sample sizes we might be able to draw more
Bloomberg BNA: Any final thoughts about
the report and its findings?
Gelbach: Particularly among critics of
Twombly and Iqbal, there has been a suggestion
that one of the things that was wrong with what the Supreme Court
did by weighing in on these issues is that the court stepped on the
institutional role of the Judicial Conference. There's a
statutorily designated process for revising the Federal Rules of
Civil Procedure, and many of Twombly and Iqbal's
critics believe the Supreme Court overreached by reinterpreting
Rule 8, the rule that governs pleading, rather than allowing that
process to play out as it normally does.
Among the reasons for the criticism is that the court is not
situated very well institutionally to make use of empirical
information. I hope that this is the kind of empirical
analysis that can be helpful for people in thinking about whether
pleading policy is being chosen appropriately. I certainly don't
think this report would shut the door on anybody's position, but I
think the style of the work and the idea of trying to look at
actual outcomes and cases quantitatively can be a useful thing.
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