Document Type

Article

Publication Date

Summer 2013

Abstract

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.

This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits of allowing a lawsuit brought via the class action mechanism past the pleading stage differ categorically from the costs and benefits of allowing through an individually-filed suit. That is because a suit that comes to court via a class action circumvents a gate-keeping mechanism that is both prior to and more important than pleading: the potential litigant’s decision whether to sue. Second, this Article points to the history of Twombly, the Supreme Court’s contemporaneous pleading decisions, and the Federal Rules of Civil Procedure to show that courts should subject damages class actions to a relatively more stringent pleading threshold in light of the different mix of costs and benefits they pose.

In addition to exploring in depth whether class actions should be subject to a different threshold, this Article briefly discusses two other areas where it may be appropriate to adjust the stringency of the pleading threshold based upon procedural context. Specifically, it suggests that the stringency of the pleading threshold should depend upon whether a case is brought pro se and whether it seeks review of agency action on the administrative record.

Publication Title

University of Cincinnati Law Review

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