Blurring the Lines between Pleading Doctrines: The Enhanced Rule 8(a)(2) Plausibility Pleading Standard Converges with the Heightened Fraud Pleading Standards under Rule 9(b) and the PSLRA

Authors

Marc I. Steinberg, Southern Methodist University Dedman School of LawFollow
Diego E. Gomez-Cornejo

Abstract

This article focuses on the Supreme Court’s recent enhancement of Rule 8(a)(2)’s pleading standard to approach the heightened fraud pleading standards under Rule 9(b) and the PSLRA. The authors posit that the introduction of a tacit “probability requirement” into the basic pleading standard impedes the heightened fraud pleading standards under Rule 9(b) and the PSLRA from fulfilling the policy rationales for which they were created. By elevating the basic requirements that must be met in any federal civil case for a complaint to be legally sufficient, the Supreme Court has caused an evident convergence of pleading standards that blurs the lines between pleading doctrines. The authors assert that this convergence produces incongruity in the federal civil litigation system by at times treating plaintiffs more leniently when bringing forward fraud claims than when alleging non-fraudulent claims under Rule 8(a)(2)’s new plausibility pleading standard.

Publication Title

Review of Litigation

Document Type

Article

Recommended Citation

Marc I. Steinberg; Diego E. Gomez-Cornejo, Blurring the Lines between Pleading Doctrines: The Enhanced Rule 8(a)(2) Plausibility Pleading Standard Converges with the Heightened Fraud Pleading Standards under Rule 9(b) and the PSLRA, 30 Rev. Litig. 1 (2010)