Court Eliminates ?No Set of Facts? Test for 12(b)(6) Motions

In?? this?? antitrust?? case,?? the?? Supreme?? Court jettisoned (7-2) its long-standing test for evaluating the sufficiency of a complaint on a 12(b)(6) motion. ?In Conley v. Gibson, 355 U.S. 41 (1957) (a race discrimination case against a union under the NLRA), the Supreme Court had held that a complaint should not be dismissed on a? 12(b)(6)? motion? ?unless? it? appears? beyond doubt that the plaintiff can prove no set of facts in ?support ?of ?his ?claim ?for ?relief.????? Justice Souter?s majority opinion decided this ?famous observation ?has ?earned ?its ?retirement.????? The seven Justices were less than clear about what the proper standard was. ?The opinion holds that the complaint must allege facts ?suggestive of illegal conduct? but need not contain ?detailed factual allegations.???? ?Neither labels and conclusions nor a ?formulaic recitation of the elements of a cause of action? are enough. ?The complaint ?must ?state? ?enough ?facts ?to ?state ?a claim for relief that is plausible on its face.? ?The Court? ?said?? that? ?factual? ?allegations? ?must? ?be specific enough to raise a right to relief above a speculative level, assuming such facts are true. A plaintiff needs to make allegations ?plausibly suggesting ([and] not merely consistent with)? unlawful conduct. ?The primary problem with the complaint?? in?? this?? case?? was?? that?? its?? factual allegations were as equally consistent with lawful conduct as with unlawful conduct.?? ?Justices Ginsburg and Stevens dissented. ?(Justice Stevens did us no favor by asserting that in a discrimination case the plaintiff must use McDonnell Douglas at summary judgment if she lacks ?direct evidence of discrimination?). ?What this all means outside the antitrust context is unclear at this point.? ?The majority emphasized it was not overruling Swierkiewicz?? v.?? Sorema,?? N.A.,? ?534? ?U.S.? ?506 (2002), which rejected a heightened pleading requirement for discrimination cases. ?Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007)