I'm having some trouble organizing my thoughts this morning, so let me just lay out what's jogging around in my brain right now.....you guys tell me if any of this is somehow related:

You know there's something wrong with Iqbal when Judge Posner questions its application in run of the mill federal cases:

In our initial thinking about the case, however, we were reluctant to endorse the district court's citation of the Supreme Court's decision in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), fast becoming the citation du jour in Rule 12(b)(6) cases, as authority for the dismissal of this suit. The Court held that in complex litigation (the case itself was an antitrust suit) the defendant is not to be put to the cost of pretrial discovery - a cost that in complex litigation can be so steep as to coerce a settlement on terms favorable to the plaintiff even when his claim is very weak - unless the complaint says enough about the case to permit an inference that it may well have real merit. The present case, however, is not complex.

But Bell Atlantic was extended, a week after we heard oral argument in the present case, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) - over the dissent of Justice Souter, the author of the majority opinion in Bell Atlantic - to all cases, even a case (Iqbal itself) in which the court of appeals had ‘promise[d] petitioners minimally intrusive discovery.' Yet Iqbal is special in its own way, because the defendants had pleaded a defense of official immunity and the Court said the promise of minimally intrusive discovery ‘provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from vigorous performance of their duties.

So maybe neither Bell Atlantic nor Iqbal governs here. It doesn't matter. It is apparent from the complaint and the plaintiff's arguments, without reference to anything else, that his case has no merit.

I've often wondered what would happen if some of my favorite cases were anthropomorphized into wrestlers and had to fight each other.

I'm pretty sure Venetian Salami would beat the snot of out Hickman v. Taylor.

However, while being interviewed ringside by Gordon Solie, Venetian Salami was viciously attacked from behind with a folding chair by Professor Toru Tanaka's tag-team partner Chudasama, which inevitably sets up the feud match involving all three of them and that great patriotic superstar, American Pipe.

I can't believe a guy seriously made an entire career out of impersonating Jerry Lewis. RIP Sammy Petrillo.

Problem -- my deep reservoirs of knowledge concerning World War II, films, and the Marvel Universe are beginning to merge -- did Captain America really punch out Hitler or did that just happen in a Tarantino movie?

Triple-oy alert -- Robert Zemeckis is remaking Yellow Submarine.

God do I love Drew Barrymore. Related -- I really hate Justin Long.

Ok folks, it's finally happened -- I have become Larry King.

Are you one of those cheapskates who can't afford $.08 per page just to see how brilliantly some lawyer cites Iqbal in a boilerplate motion to dismiss?

Well, your prayers have been answered (h/t to a loyal reader):

The Solution: RECAP, a Firefox-only plugin, that rides along as one usually uses PACER — but it automatically checks if the document you want is already in its own database. The plug-in’s tagline, ‘Turning PACER around,’ alludes to the fact that its name comes from spelling PACER backwards. RECAP’s database is being seeded with millions of bankruptcy and Federal District Court documents, which have been donated, bought or gotten for free by open-government advocate Carl Malamud and fellow travelers such as Justia.

And if the document you request isn’t already in the public archive, then RECAP adds the ones you purchase to the public repository.

The plug-in was released by Princeton’s Center for Information Technology Policy, coded by Harlan Yu and Tim Lee, under the direction of noted computer science professor Ed Felten.

That’s a pretty good hack, but it’s still just a stop-gap measure until the federal courts figure out that in the age of the internet, charging citizens to search and read public documents should be a federal crime.

Should be fun until Judge Moreno finds out!

You know that whole new "conceivable" no, "plausible" yes pleading standard we've been talking about -- also known as one step over the line, sweet Iqbal?

Well my friend Bobby Brochin understands it --I mean really groks it -- and succinctly explains the otherwise curiously vague standard right here:

Added Robert Brochin of Morgan, Lewis & Bockius, who represents Panamco: "The ruling reiterates that before you can file a lawsuit, particularly one brought under the banner of human rights abuses, you have to be able to plead facts that form a plausible legal theory. The plaintiffs in this case did not do that."

See how easy that was!

Too bad Iqbal was decided after the Coke case was argued to the 11th Circuit:

Plaintiffs lawyer Collingsworth told The Am Law Litigation Daily that the circuit court's reliance on Iqbal is troubling, given that the Supreme Court didn't issue its ruling until after this case was argued. "Iqbal drastically changes the pleading standard," he said. "At a minimum, we should get the chance to replead."

What a whiner!

Sorry Terry -- your timing do-over argument is conceivable, but not entirely plausible, making you completely SOL.

Iqbal Iqbal Iqbal.

I'm already sick to death of this opinion, and the mania over it has not yet even started.

As I have written before, Iqbal is the standard of review legal equivalent of flatbread -- inert, tasteless, yet somehow incredibly trendy and inexplicably popular.

Today the Eleventh released its opinion in the closely-followed case of the union organizers who were tortured and killed at a Columbian bottling plant, Sinaltrainal, where claims were being asserted against Coca-Cola under the Alien Tort Statute and the Torture Victims Protection Act.

In an opinion by Judge Black, the Eleventh affirmed the Southern District, and held that the complaints did not state a claim -- probably the right result.

In doing so, however, Judge Black adopted Iqbal (as it must) and attempted to lay out for us the brave new post-Iqbal world:

Although it must accept well-pled facts as true, the court is not required to accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. ---,129 S. Ct. 1937, 1949 (2009) (noting “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). In evaluating the sufficiency of a plaintiff’s pleadings, we make reasonable inferences in Plaintiff’s favor, “but we are not required to draw plaintiff’s inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff’s allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating conclusory allegations are “not entitled to be assumed true”).

A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 129 S. Ct. at 1950 (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-62, 570, 127 S. Ct. 1955, 1968-69, 1974 (2007) (retiring the prior “unless it appears beyond doubt that the plaintiff can prove no set of facts” standard). In Twombly, the Supreme Court emphasized a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S. Ct. at 1964-65 (internal citations and emphasis omitted).

More recently, in Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949. A complaint must state a plausible claim for relief, and “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. The well-pled allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974.

Again, what the difference is between conceivable and plausible is a mystery and this "test" seems to me completely unhelpful to litigants in the real world.

Indeed, does anyone know what any of that means?

By that I mean, is there any complaint that you would not throw an Iqbal challenge against, given the vagaries of the current formulation?

The new test seems to me to vest a huge amount of discretion in the district court at the initial stages to make a good old-fashioned 3d DCA-styled "gut check" and determine -- without discovery or a sustained effort by counsel to flesh out the allegations -- that the case should be gone forever.

Question -- if Rule 8 did not change, then how come the pleading standard did?

That's why I'm intrigued by Senator Spector -- currently being assailed by misinformed angry white folks who want God to rain justice on his cancer-ridden corpus -- and his efforts in Congress to return Rule 8 to its 1957 Conley-era roots.

You know, the good old days....when people just ate bread.

Hi folks!

I don't know about you, but I'm a bit bored today.

Sure I could point out Vanessa Blum's well-written profile of Steve Zack.

BTW, did you know Steve does a Claude Pepper impression?

Hmm, maybe I should say, is there anyone out there who doesn't know Steve does a Claude Pepper impression?

Oh hail, perhaps the right question is -- does anyone even know who Claude Pepper is?

Like Steve, I do a killer George Raft impression, but for some reason the youngsters at the Bar functions just don't get into it like they used to.

Hey, did you know Representative Boehner's plan for transforming health care in America entails....reigning in junk lawsuits?

Oy veh.

For you helpless romantics (semantics?), a friend asks to break down Iqbal again:

The Iqbal court quoted the language from Twombly, that plaintiffs must "nudge[] their claims across the line from conceivable to plausible." I am moved to say that the court's pleading standard has gone from ridiculous to preposterous.

Of course, there is no practical difference between "conceivable" and "plausible," just as there is no real difference between "ridiculous" and "preposterous."

It only took me two minutes to find an opinion where the Court used "conceivable" and "plausible" interchangeably.

Not too long ago there was a case where the Supremes reversed a DC Circuit decision that Congress had violated equal protection with respect to a portion of the Cable Act. Here is F.C.C. v. Beach Communications, 508 U.S. 307, 313-14 (1993):

In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. See Sullivan v. Stroop, 496 U.S. 478, 485 (1990); Bowen v. Gilliard, 483 U.S. 587, 600-603 (1987); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174-179 (1980); Dandridge v. Williams, 397 U.S. 471, 484-485 (1970). Where there are "plausible reasons" for Congress' action, "our inquiry is at an end." United States Railroad Retirement Bd. v. Fritz, supra, at 179.

And then there’s the concurrence:

I continue to believe that, when Congress imposes a burden on one group, but leaves unaffected another that is similarly, though not identically, situated, "the Constitution requires something more than merely a `conceivable' or `plausible' explanation for the unequal treatment." United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 180 (1980) (STEVENS, J., concurring in judgment).

Is there any reason why “conceivable” and “plausible” are synonyms with respect to the rational basis test but not with respect to the pleading standard?

To sum it up, kids, is the Court’s wordplay laughable or risible?

Or as George Raft used to say, "part of it went on gambling, and part of it went on women. The rest I spent foolishly."

Remember when Twombly came out in late 2006 and it showed up in just about every motion to dismiss?

Twombly, Twombly, Twombly.

Everywhere you went, people were talking about "Twombly."

You had to pretend to know something about it at judicial functions, there were teleconferences on it, and associates billed incessantly to copy and paste the part of the brief that dealt with it over and over and over again.

It was the "economic loss rule" of 2007.

Now, it seems, everyone is talking about Iqbal:

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

Even Justice Souter, who wrote for the majority in Twombly, thought Iqbal went too far, what with expecting judges to use "common sense" and determining what's "plausible" -- hah!

Sheesh, they're federal judges, give them a break!

Indeed, just a few days ago Judge Conway of the Middle District dismissed a false marketing suit involving Seroquel, citing Iqbal.

I hate legal trends, and particularly trendy decisions or theories that are untested and which run amuck for a while before things get back to normal.

So now everything is going to be about Iqbal, at least for the near future, before somebody realizes that maybe we went too far and we can go back to normal pleading practices, you know, Rule 1, Rule 8, Rule 12 -- the oldies but goodies.

And so, kids, now you know why I hate flatbread.

So I was reading my WSJ this morning and, in addition to a nice remembrance of DUI attorney Richard Essen, came across this letter from Senator Specter:

William McGurn raises a false alarm that terrorists will flock to sue federal law-enforcement officials if my bill, the Notice Pleading Restoration Act of 2009, were enacted into law ("Terror by Trial Lawyer," Main Street, Dec. 1). Mr. McGurn's argument is so off-base that, during a hearing last Wednesday on the bill before the Senate Judiciary Committee, not a single senator—Republican or Democrat—alluded to, let alone advanced, it.

Under the Congressionally approved Federal Rules of Civil Procedure, adopted in 1938, a complaint need only include a "short and plain statement" showing the plaintiff's entitlement to relief. Two recent decisions of the Supreme Court upset the longstanding interpretations of that rule and, in doing so, bypassed Congress, which by statute must approve any changes to the Federal Rules. Bell Atlantic Corporation v. Twombly, (2007) requires not only that a complaint include specific facts—facts usually in the hands of defendants—but also that it appear "plausible." Ashcroft v. Iqbal, (2009) took Twombly a step further by calling upon judges to indulge their subjective judgment when evaluating a complaint's plausibility. My bill would do no more than restore the pleading standard that prevailed before Twombly and Iqbal.

No one can seriously claim that, before the Supreme Court raised the pleading bar in Twombly and Iqbal, federal litigation threatened national security. For decades government officials have enjoyed various forms of immunity from damages suits. As Justice Stephen Breyer pointed out in his dissent in Iqbal, moreover, the "law . . . provides trial courts . . . with legal weapons" other than heightened pleading requirements, such as tight controls on pre-trial discovery, "designed to prevent unwarranted interference" with government functions when government officials are subject to suit. If the evidence were to show that a small class of suits against government officials might threaten national security, then Congress or the Court could impose a heightened pleading requirement in that small class of cases. No such evidence was provided to the Judiciary Committee at Wednesday's hearing because there is none to provide.

Sen. Arlen Specter (D., Pa.)

Notice pleading a threat to national security?

Seriously, Rule 8(a) represents a threat to our freedoms?

That's a new one.

Perhaps we should indefinitely detain Rule 8(a) without charges and throw it in Gitmo, to be subjected to enhanced interrogation techniques endorsed by 9th Circuit Judge Jay Bybee.

(Boy we got pretty screwed up there for a while.)

I have let the federal judiciary and the bar down and I regret those transgressions with all of my heart. I have not been true to my values and the behavior the court system deserves. I am not without faults and I am far short of perfect. I am dealing with my behavior and personal failings behind closed doors with my brethren. Those feelings should be shared by us alone.

Wait.

Hold on, you thought....?

No no, that's not me or even Tiger -- that's my fantasy of the Supreme Court finally confessing their sins on Iqbal!

A boy can dream, can't he?

Maybe I'm jazzed up because Senator Leahy has that regrettably vague pleading standard in his sights:

Today, in sometimes tense exchanges, those senators went head-to-head with Gregory Garre, the former solicitor general who argued and won the case almost exactly a year ago.

Garre, now chair of the appellate practice at Latham & Watkins, testified about the case at a Dec. 2 hearing before the Senate Judiciary Committee. He said there has not been enough research to conclude that the Iqbal decision — and the related 2007 decision in Bell Atlantic Corp. v. Twombly — are unfairly restricting plaintiffs.

“We need to know more. We need to know whether meritorious cases are being dismissed. We need to know if these are cases that would have been dismissed before Twombly and Iqbal,” Garre said.

Sen. Patrick Leahy (D-Vt.), the committee’s chairman, said some of that research is impossible because courts are throwing out lawsuits that do not meet the higher pleading standard. “If the cases are dismissed, how are we going to know whether they were meritorious?” Leahy asked.

Garre replied that researchers could at least study whether a case might have been dismissed under the previous standard.

Sure, that'll be easy.

I also like the way the Senators get in Garre's grill over his "study":

And a third witness, University of Pennsylvania law professor Stephen Burbank, criticized Garre for citing research that Burbank considers inadequate: a 156-page memorandum (PDF) from a law clerk to the Judicial Conference’s civil rules committee.

“It is a summary of cases — appellate decisions and a non-random sample of district court cases. It’s not a study. Mr. Garre is confused,” Burbank said.

Garre responded by quoting the chairman of the civil rules committee, U.S. District Judge Mark Kravitz of Connecticut, who told The National Law Journal in September that he thinks judges are “taking a fairly nuanced view of Iqbal.”

Sen. Al Franken (D-Minn.) rebuked Garre at the end of the hearing, accusing him of exaggeration. “I don’t like being told something’s a study when it’s a summary…. Testimony before Congress should be accurate when you talk about something,” Franken said. Garre did not respond.

To be fair, I think our SD FL judges have in fact been fairly nuanced in the way they have approached the Iqbal standard on motions to dismiss.

The point is, though, we shouldn't have to hope and pray for such fairness and nuance on an individual, judge-by-judge basis -- the standard should be straightforward and uniform in its application (and while we're at it, you might as well have it conform to the federal rules).

You know, some idiot bloggers have suggested that certain recent Supreme Court cases have forced litigants to include a lot of extra verbiage in complaints nowadays, most of it entirely irrelevant and unrelated to the actual legal claims for relief.

I don't know about you, but now that Alan Kluger is off the Mr. Chow case, celebrity lawyer Bert Fields has really amped it up with a Second Amended Complaint that reads like a screenplay for the soon-to-be-major-motion-picture about the Life and Times of Michael Chow.

Here's a taste of the pleading:

From Exile comes Reinvention, Revolution and Innovation

20. Michael Chow, the real Mr. Chow, was born in Shanghai, China. His father was a renowned grand master of the Beijing opera and is regarded as a “national treasure,” a rare and highly respected honor in The Peoples Republic of China. In a bipartisan bill introduced into the United States Senate in 2005 by then-Democratic Senator Joseph Lieberman and Republican Senator Lamar Alexander for the purpose of educating American youth about the rich culture of China, Mr. Chow’s father was recognized as one of the eight most influential people in the history of China.

21. As a result of his father’s influence, young Mr. Chow was immersed in China’s venerable and refined arts. The legacy bestowed by his father’s position and artistic accomplishments ultimately inspired the work of Mr. Chow in the West.

22. Mr. Chow was first introduced to Western culture at the tender age of 13, when he was sent to London to further his education. In London, he studied arts and architecture. As an uprooted young man, he was isolated from his family and from the rich Chinese culture. In fact, from the very day he left Shanghai, Mr. Chow was never able to communicate with nor see his father again.

23. Being separated from his family and his heritage left Mr. Chow longing to bring the great culinary tradition of China to the West. Mr. Chow realized his dream in 1968, when he opened his first visionary and revolutionary designer restaurant, the eponymous MR CHOW. The mission of Mr. Chow – both the man and his restaurant – was then and remains today to promote an appreciation and understanding of the complex and varied cuisine of China through authentic interpretations, refinements, and reinventions of classic dishes.

24. Successfully accomplishing these goals, Mr. Chow has devoted his entire life to carefully constructing at his restaurant a universe of experiences for his clients, with each detail intended to bridge the gap between East and West through the medium of Chinese cuisine, creating a unique fine dining experience. Over time, and through painstaking effort, Mr. Chow has been able to convert a misunderstood and largely unfamiliar cuisine into an art form with a cult following by providing clients of the MR CHOW Restaurants with a dining experience that both enlightens and entertains.

Bert also does an extended riff on the ancient art of "hand-pulled noodle-making":

27. In addition to preparing authentic Chinese cuisine, Mr. Chow has always been keenly interested in educating and entertaining his clients, with a view towards honoring and sharing China’s cultural heritage. Among the many things Mr. Chow has done to accomplish this objective was to bring the ancient art of hand-pulled noodle-making to his restaurants, where he created and introduced a nightly noodle-making show in the dining room at his first restaurant some forty-one years ago which has continued ever since in each MR CHOW Restaurant. This show has been exhibited on national television and has even been demonstrated in the Kung Fu Panda movie DVD.

28. The ancient art of stretching hundreds of fine noodle strands from a mound of dough entirely by hand and without knives or other utensils, remained first in Asia and then in the kitchen, until Mr. Chow brought it to England and America and into the dining room in his nightly noodle show. The rapid, skillful transformation of dough into noodle strands from a trolley in the center of the dining room is one of Mr. Chow’s many signature innovations, and is inextricably associated with the MR CHOW Restaurants.

Ok fine, but Ramen noodles got me through college.

Seriously though, does Judge Hoeveler need to read all that?

Lamar Alexander, "tender age of 13," London, East meets West, Beijing Opera, trolleys, Kung Fu Panda -- oy!

Last I checked, it's still Chinese food.

(BTW, there's a great recent book on how Chinese food got so amazingly uniform and ubiquitous in American culture here.)

I'd never thought I'd say this, but we may need to bring back Alan.

Remember when we discussed the impending changes to the Federal Rules and the adoption of the new "days are days" time calculation standard?

Well, even though we live here in South Florida, it appears that things are actually under control, in that Chief Judge Moreno just signed this Administrative Order reconciling our local rules with the new changes.

Sure it took a few tries, but the main thing is they got it right:

Due to several discrepancies in the attachments to Administrative Order 2009-34 and Supplemental Administrative Order 2009-34, the Court vacates those orders.

This Administrative Order is intended to supercede those orders in their entirety.

For the reasons set forth below, the petition of the Ad Hoc Committee on Rules and Procedures for an Administrative Order concerning the calculation of time periods under the Local Rules is GRANTED.

This Court amends its various local rules on an annual cycle corresponding to the issuance of new rules books for Florida federal practitioners by West Publishing Company, after a period of public comment, notice, and an opportunity to be heard in accordance with Fed. R. Civ. P. 83 and Fed. R. Crim. P. 57.

Substantial changes to the manner in which dates are calculated in the various Federal Rules of Procedure have been approved this year and will go into effect on December 1, 2009. The Committee has prepared corresponding amendments to the Local Rules, the Discovery Handbook, the Rules Governing Attorney Discipline, the Magistrate Judge Rules, and the Admiralty Rules.

These, however, will not go into effect until April 15, 2010, subject to the notice and comment procedures described above.

To avoid any discrepancy between the manner in which time is calculated under the various Federal Rules of Procedure and the Local Rules of this District during the interim period of December 1, 2009 when the amendments to the Federal Rules go into effect and April 15, 2010 when the corresponding amendments to the Local Rules will go into effect, the Committee has requested that time-calculation changes to the above rules be set forth as an attachment to an Administrative Order,
to be in effect during the interim period. The Court has determined that this is appropriate, and it is

ORDERED that the modifications to the Local Rules, the Discovery Handbook, the Rules Governing Attorney Discipline, the Magistrate Judge Rules, and the Admiralty Rules shown on the attached table shall be effective as of December 1,2009. This Order shall expire on April 15,201 0.

It is further

ORDERED that the Clerk of the Court is directed to post this Order, with the attached table, on the Court's website, and to take such other measures as he deems necessary to advise members of the Bar of the United States District Court for the Southern District of Florida of the forthcoming changes in time calculations in the Local Rules.

Thanks to the Chief Judge and all the folks working on this for your hard work and diligence.

(I wonder if the Ad Hoc Committee can do something about that new pleading standard I've heard something about.......)

Anyone remember that old arrest involving UM Law Professor D. Marvin Jones?

The one everyone told me they already knew about and I was such a schmuck for not being clued in?

Yep, that one.

Well as David reports here, and our friend Guest Blogger at MaL does too, the ole' Perfesser has decided to go pro se and sue AboveTheLaw in Miami federal court!

You can read the complaint here, which is pending before Judge Cooke.

ATL's prior coverage on Professor Jones is collected here.

Call me crazy, but this one's easy; I have a feeling you don't even have to go all-Iqbal-chronic to make it fade away.

See, Arlen Specter was right -- Conley v. Gibson works just fine.

I now return you to your regularly scheduled Scott Rothstein programming.

UPDATE: Here's a fantastic analysis of the glaring deficiencies in Professor Jones' complaint by lawyer/blogger Ben Sheffner.

Well you know what they say -- "Halloween is for windsurfing" -- so I am going to cut out of here early and catch some glistening, chocolate-covered waves all afternoon.

Before I go, I see my crazy-eyed zoftig birther mama caught some more federal judicial flak today, this time coming from C.D. CA Judge David O. Carter, who wrote:

"Plaintiffs have attacked the judiciary, including every prior court that has dismissed their claim, as unpatriotic and even treasonous for refusing to grant their requests and for adhering to the terms of the Constitution which set forth its jurisdiction. Respecting the constitutional role and jurisdiction of this Court is not unpatriotic."

No, it just means you too had a little visit from an olive-skinned Eric Holder lookalike at the courthouse coffeeshop.

(BTW, I had no idea Alan Keyes was a plaintiff in the above suit -- talk about the loony leading the crazy.)

Then we have Hunton & Williams, which filed an odd suit on behalf of the US Chamber of Commerce against some pranksters who spoofed their position on climate change the other day.

You can read Hunton lawyer Richard L. Wyatt Jr.'s masterwork here.

Someone remind me -- what's that new opinion on pleading standards again?

In local news, Coral Springs attorney Scott Salomon was finally disbarred.

He certainly gave us plenty of good material over the years (see here and here) so we wish him (not to mention his former clients) farewell and godspeed.

I don't know about you, but like any good deputy assistant AG, I too have a goody bag of things "just in case." But dude -- in a cemetery?

Guess it is that time of the year.

And like many of you, I thought of some costume ideas so I put a few up there for your consideration -- guess which one I'm going as? (NO HINTS!)

Finally, remember whatever you do this weekend to think young, get a good night's rest, and since it's Halloween, get your blood on.

Have a great weekend everybody!

I had some time on my hands yesterday, so I went ahead and did a Jay Z-White Album-style mashup of the Congressional testimony on Iqbal yesterday and John Lennon's seminal Plastic Ono Band album from 1970 -- it starts with a gong and a raspy-voiced John primal screaming "Mama don't GOOOOOOOOOO!!, Iqbal stay home" and ends with Lennon cooing to Arlen Specter "Rule 8 and me, that's reality."

I think it came out pretty.....what, was I the only one to think of that?

But can you believe a group of Congresspeople actually got together yesterday on the Hill and discussed Iqbal, which has already been cited 2700 times in federal court:

"The Iqbal decision will effectively slam shut the courthouse door on legitimate plaintiffs based on the judge's take on the plausibility of a claim, rather than on the actual evidence," Nadler said. The bill will be similar to one introduced earlier this year in the Senate by Sen. Arlen Specter (D., Penn.) but will spell out the new standards more specifically.

The proposed legislation would return pleading standards to where they were after the Supreme Court's 1957 Conley v. Gibson decision, which stated that defendants should have "fair notice" of any claim, but said only cases lacking strong evidence should be dismissed.

Hmm, I've heard of that before -- it's called Rule 8(a).

I knew Specter was old, but he's going all the way back to 1957 and Conley v. Gibson -- hail, that's pre-Mad Men old.

Not so fast, says the dude who actually argued Iqbal, who predicts Gloom and Doom, cats and dogs etc. if we go back to the way things used to be just five months ago:

If passed, the bill could raise legal fees for companies. Electronic discovery proceedings can cost millions of dollars and even tens of millions in anti-trust and other complicated cases, said Gregory Katsas, former U.S. assistant attorney general who helped represent the U.S. government in Ashcroft v. Iqbal.

Come on -- you'd have to be a pretty bad lawyer if you couldn't get a motion to dismiss granted pre-Iqbal if your grounds were that strong.

The problem is the nearly formless "implausibility" standard, which introduces a huge amount of judicial discretion at too early a stage:

"The bottom line is that the Supreme Court knows what the impact of this decision is," Johnson said. "Even defense lawyers have called the Iqbal decision an unexpected gift for the business community."

You know, I find plenty of things "implausible" -- Drew Barrymore dating that idiot from the Mac commercial, for example, but should I get to decide everything?

Ok, don't answer that.

Hi folks!

So overall it was a pretty good football weekend, no?

Not to get all Iqbal-centric on a bright Monday morning, but I see that the House Judiciary Committee will be holding hearings this week on the dreadfully imprecise Iqbal pleading standard.

It's about time, I say.

I guess now that the folks in DC fixed health care, ended our wars, and restored our shattered economy they can get on to some important legislation for a change.

Vanessa Blum has a nice overview in today's DBR regarding law firms and how managing partners see the upcoming year.

Naturally, no one wants to say -- "it sucks, the clients are not paying, the work is drying up, the costs are out of control, and this year looks worse than last year."

So we hear lots of blather about energy-efficient lightbulbs, trimming fancy dinners and signing megabuck leases as a way to cut costs.

But then I came across this quote from the very wealthy and successful Bob Zarco:

Even Miami franchise law attorney Robert Zarco, a multimillionaire known for his extravagant fashion taste, said he reined in travel and entertainment spending at the 11-lawyer Zarco Einhorn Salkowski & Brito.

“I’m just being a little more cautious,” he said. “We used to stay in the absolute nicest hotels. We used to rent the most luxurious vehicles and eat in absolutely the most expensive restaurants.”

You're not kidding.

Just last year Bob was featured in a Herald article that focused on his high-flying travel expenditures:

Even so, the frequent traveler does not leave home lightly. He insists on five-star accommodations even when clients won't pay for it, making up the difference out of his own pocket.

"When I travel I am leaving my family, I am leaving the comforts of my home to work for someone else, " he said. "I live in a very nice home. I live very comfortably."

So when he's on the road, he tends to sleep in a Peninsula or a Ritz-Carlton, two of the country's priciest hotel chains. He's such a loyal customer that one Peninsula keeps sheets for him embroidered with "RZ."

Holy hail, if Zarco has been forced to endure a night's rest without his personally monogrammed sheets when he stays at the Peninsula, what is the world coming to?

I mean, what's next -- having to forgo the shrimp appetizer before the afternoon deposition? That's just unacceptable.

Seriously, what other indignities can a man be expected to endure?

Hi, did you know that in just four months Iqbal has already produced more than 1500 district court and 100 appellate decisions?

Hmm, if Iqbal were a type of bread, what type would it be?

Ok, let me translate it into something even you ham-and-schleppers can understand -- Iqbal is like the Lindsay Lohan of Supreme Court opinions -- a once promising young talent who has descended into a desperate drug-induced haze of oddball wildchild Scalia-like excess.

But some grey-hairs apparently think there's something.....stupid (and/or boundless) about the new pleading "standard":

"I have spent my whole life with the federal rules, and this is one of the biggest deals I have ever seen," said New York University School of Law professor Arthur Miller, a longtime expert on civil procedure. "Me, old fogy troglodyte that I am, I see serious problems with democratic values here, with access to the courts, with resolution of disputes with a jury of peers."

Brooklyn Law School professor Eliza­beth Schneider, who has written extensively on federal civil procedure, said Iqbal is forcing trial judges to go "line by line" through pleadings, using subjective factors to decide what parts are factual and which statements are conclusory. "If that's not an open door to judicial bias, I don't know what is," she said.

Michael Carvin, a partner in the Wash­ington office of Jones Day and a frequent litigator on behalf of companies, countered that Iqbal has been "very beneficial" in "slowing the major abuse of litigation against corporations." He said, "You can't just throw mud against the wall. You have to have some theory of the case." Under the previous rule, companies contend, plaintiffs would state frivolous claims in hopes that companies would settle rather than face expensive discovery.

The main target for those seeking to roll back Iqbal is Congress. Sen. Arlen Specter, D-Pa., introduced a bill in July that would return pleading standards to the pre- Twombly status. A similar House bill may be introduced this week. To turn an esoteric issue like pleading standards into a popular cause, the groups that met last week may seek out individual litigants who can testify about how the Iqbal standard affected their lawsuits. "Though the issue may seem dry, we've already seen that Americans are being kept out of the courtroom as a result of Iqbal … so passage of this legislation is critically important," said Nan Aron of the Alliance for Justice.

REVISING THE RULES

Another strategy under debate is to seek changes in the Federal Rules of Civil Procedure regarding pleadings (Rule 8) and dismissals (Rule 12). Some critics say the Supreme Court, by deciding Iqbal as it did, in effect amended the rules without going through the rulemaking process. Rule 8, for example, calls for a "short and plain statement" of the plaintiff's claim in initial pleadings. At the Second Circuit's judicial conference this summer, Justice Ruth Bader Ginsburg, who dissented in Iqbal , said that in her view the court had "messed up the federal rules."

But altering the federal rules is a lengthy process, noted University of Penn­syl­vania Law School professor Stephen Burbank, a strong critic of Iqbal . He also cautioned, "The process is under the control of the Supreme Court, which is responsible for these atrocities." Chief Justice John Roberts Jr., who was in the 5-4 majority in Iqbal, appoints members of Judicial Conference committees.

U.S. District Judge Mark Kravitz of Connecticut, who chairs the influential Judicial Conference Advisory Committee on Civil Rules, said his committee is monitoring the impact of Iqbal and Twombly with an eye toward gathering data and discussing later this year whether rule changes are needed. "We ought to be deliberate about it," Kravitz said in his first comments to the press about the Iqbal issue. So far, he told The National Law Journal , a Recorder affiliate, his sense is that judges are "taking a fairly nuanced view of Iqbal " and that it is not yet "a blockbuster that gets rid of any case that is filed."

Indeed, not all judges are rubber-stamping Iqbal motions. During a hearing Aug. 10 in an employment discrimination case, Senior Judge Milton Shadur of the U.S. District Court for the Northern District of Illinois told defense lawyers that Iqbal and Twombly "don't operate as a kind of universal 'get out of jail free' card."

In unrelated news, congrats to 80% of FIU's Law School that passed the Florida Bar and whom new Dean Alex Acosta forgot to mention in his email last night:

From: "R. Alexander Acosta"
Date: Mon, 21 Sep 2009 19:10:15 -0400
Subject: [Students] Bar Results

Dear Students:

I write to inform you of this year’s bar results.

FIU has traditionally scored far higher than the statewide average. Last summer, for example, we ranked 2^nd in the State.

This year, we exceeded the state average only slightly, with 72 of 89 students passing the Bar.

To have ranked as we did last summer, we needed 77 of 89 students to pass.

While this difference is small, it matters. I expect us to return to topping the statewide pass rates in the future.

R. Alexander Acosta

Dean

Florida International University

College of Law

Office: 305-348-1777

Fax: 305-348-1159

Alex also forgot that in February FIU was first in the state.

You can see all the results here.

Hi kids, here they are:

1. I just had new speakers installed at my office and I plan to blare Quadrophenia at excessive volumes so the new associates stay way the hail out of my way (note to sweet kitchen lady -- you can still bring in the cafecito at 10:30).

2. It's National Constitution Day so I will be quietly reading the entire moldy oldie (while of course listening to Quadrophenia at excessive volumes).

3. I need time to compose an awesomely concise, 140-character or less Twitter message to my pals Hector Chichoni and Jared Beck, informing them that Twitter is an interim, transitional technology that will be about as relevant in 10 years as AOL Message Boards are today.

4. I'm still processing the arse-kicking that Brian Tannebaum's Criminal Offense delivered to the Well-Hung Jury.

5. I have finally found an instance where there can be no doubt that Iqbal has been properly applied.

BTW, the "lawyer" representing the plaintiff in the above case called the federal judge -- a George W. Bush appointee -- a "puppet" of Obama "just like in the Soviet Union" but did walk it back some by helpfully suggesting that "not every judge is as corrupt as Judge Land."

(Thank goodness she didn't post these comments on a blog!)

6. What else -- I'm going windsurfing.

An inquisitive reader asks, "what's up with the Mr. Chow lawsuit"?

My answer -- what am I, Action Line?

Still, my job here is to inform, so let's a peek...

What do you know, Mr. Chow (represented by Alan Kluger) has filed a response to the defendant's motion to dismiss, and it contains this blockbuster statement about current federal pleading standards:

Inexplicably, Defendants suggest that Plaintiffs should have attached their evidentiary proof in support of their claims to the complaint itself, as they pointedly emphasize that “Plaintiffs[] fail[] to attach any documents in support of its [sic] claims” to the Amended Complaint. See DE 16 p. 4 (emphasis in original). This suggestion flies in the face of the fundamental principle that the purpose of the complaint is simply to place Defendants on notice of the claims against them, not to prove up Plaintiffs’ case at the inception of the action. See Fed. R. Civ. P. 8 and related discussion below.

Alan, someone has not been reading my blog!

Notice pleading is so 2007.

BTW, congrats to Alan for making the 2009 Chambers USA top lawyers list (page 759), which even includes a mention of Kluger's "world-class collection of Latin American Art dating from 1945 to the present."

(I am not making that last part up.)

The motion to dismiss is now fully briefed and awaiting a ruling from Judge Hoeveler (in other words -- get to work, Barbara!)