Thursday audio--Section A, Section B. Essay # 2 due at the beginning of class tomorrow. We will do our first extra 20 minutes tomorrow.
• What does the REA in your CREAC look like on a 12(b)(6)?
• Be ready to discuss how that standard applies to Twombly, Iqbal, VOA, and Godin. Think about the basic substantive law at issue on each.
• What does Johnson suggest about what a plaintiff must do in his complaint?
• What is the problem with the Court looking for and finding an "obvious alternative explanation" for the allegations in the complaint? In looking at this part of Twiqbal, consider the following:
NRA v. Vullo involved a First Amendment challenge by the NRA against Vullo (the head of the New York agency that regulates insurance companies); according to the complaint Vullo threatened insurance companies with regulatory action if the companies continued to do business with the NRA or promised to refrain from regulatory action if they ceased doing business with the NRA. The Court held that plaintiffs stated a claim for a violation of the First Amendment. The majority includes the following:
For the same reasons, this Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “ ‘obvious alternative explanation’ ” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns, id., at 37, 40, 42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.
Finally, some thoughts on all of this. The difference among the pleading standards is somewhat metaphysical; you cannot look for mathematical precision as to the line between 9(b) heightened pleading and Twiqbal. That means a certain amount of uncertainty, a lot of play in the joints, and a lot of room for argument, based on the allegations you have and the substantive law at issue.
To something that came up in Section A: Twombly is less than 9(b) because the Court tells us it is. The idea of "context-specific" means that the plaintiff can establish plausibility with less in some cases than in others (based on the policy concerns underlying Twiqbal). But none of that is as high as 9(b).
