Iqbal and Settlement

By Michael Moffitt . 114 Penn St. L. Rev. Penn Statim 51.
Published July 26, 2010. View as PDF.

Preferred Citation: Michael Moffitt, Iqbal and Settlement, 114 Penn St. L. Rev. Penn Statim 51 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 51.pdf.

Iqbal and Settlement
By Michael Moffitt

The Supreme Court’s decision in Iqbal was good news for defendants. By increasing the scrutiny with which a plaintiff’s complaint is to be examined, the “plausibility” standard articulated by the Court makes motions to dismiss a more potent tool.

A nearly implausible amount of scholarly ink has already been spilled in an endeavor to answer descriptive, predictive, and normative questions about Iqbal. What does the plausibility standard really mean? How much of a change does this represent? Who will be most affected? And are those changes wonderful, awful, or something else? The sky either is or is not falling on some or all of us, according to Iqbal analysts.

Much of what has been written about Iqbal has been written from the perspective of litigation, and that is perfectly sensible. After all, Iqbal is a decision about Federal Rule of Civil Procedure 8, at its heart. Questions of access to the court and defenses like immunity are bread and butter Civil Procedure topics. Of course many of those who have commented on the case do so from a litigation perspective.

As Nancy Welsh suggests, however, the realities of modern litigation present another frame through which to assess Iqbal—that of settlement dynamics. My question is not whether Iqbal will have this or that effect on litigation. My question is whether Iqbal will create a change in disputants’ conversations about settlement. [keep reading]