Drafting Complaints in the Post-Iqbal World

AGG Partner Robert L. Rothman published an article in Litigation Journal, the magazine of the American Bar Association Section of Litigation. “Drafting Complaints in the Post-Iqbal World” discusses two Supreme Court cases, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which revive Rule 12(b)(6) of the Federal Rules of Civil Procedure giving judges the power examine the factual basis for complaints and dismiss marginal cases before discovery. Mr. Rothman recommends that lawyers write complaints with the judge in mind and putting more thought, diligence and care into the complaints than in the past. He writes, “The lesson for those drafting complaints is that, not only must your complaint include factual allegations that, if proved at trial, would establish each element of your claim, but the quality of the facts must be sufficient to persuade the judge that your claim may have merit and is not a mere pretext to obtain discovery.” Mr. Rothman provides the reader with “basics of pre-complaint due diligence” and reminds those writing complaints that one should first be certain of the facts before inserting them into the complaint, rather than focusing one’s due diligence on finding facts to support one’s preliminary theory of the case. To read the full article, please click here.