Brunet on the Origins of Plausibility as a Pleadings Standard

A lot of people have been writing about the new pleading standards lately.  One very intriguing observation was offered by Prof. Edward Brunet (Lewis & Clark Law School).  Brunet is the author of a treatise on summary judgment and links summary judgment and the new pleadings standards.  The concept of “plausibility,” he writes, is imported from substantive law of antitrust, now morphed into pleadings doctrine.  His full analysis is below.  

            I think the origin of a plausible assessment of thenonmovant’s case was based in substantive antitrust law. In Matsushita(1986 trilogy) the pword is used 10 times.  However, thecontext of usage of the word is substantive antitrust law and not Rule 12(rememberthis was a summary judgment case).  WhatMatsushita meant is that antitrust is hostile to predation cases, particularlythose in which  the plaintiff cannot demonstrateproof  of recoupment  of  the defendant’s costs expended in phase one ofa predation case ( the price cutting phase). The plaintiffs’ case was implausible because it was incredible that a monopolistwould lose money on its U.S. sales for a lengthy 25 year phase one.

The Matsushita majority also made asubstantive point when asserting that “antitrust law limits the range ofpermissible inferences from ambiguous evidence in a section one case.”  In other words, the term plausible was notintended to be a procedural yardstick in all cases but, instead, had asubstantive antitrust meaning.  Thisreading  was bolstered by Matsushita‘s citation and quotation fromMonsanto (1984) (another antitrust case and one not involving pleading) requiringthe antitrust plaintiff who seeks to avoid summary judgment to have proof that “tendsto exclude the possibility” of independent conduct.

As early as 1969 in the CitiesService case, the Supreme Court used the p word (plausible) when describing aplaintiff’s antitrust theory and its ability to overcome a Rule 56 motion.  So, up to the plate goes Justice Souter whoreinterprets “plausible” in a procedural way in Twombly. And JusticeKennedy ignores the substantive antitrust meaning of “plausible” inIqbal.  My theory is based upon awillingness to have cause of action specific norms and flies in the face of apurely trans-substantive set of motion rules. 

ADL