Questions about Twombly

1) Compare Twombly and Seirocinski. Couldn't the same thing that was said about the plaintiffs' complaint in Twombly also be said about Seirocinski's complaint? Wasn't the fact that the the cap exploded like parallelism in Twombly: evidence (in Seirocinski of negligence, in Twombly of an agreement to restrain trade), but not sufficient evidence on its own? If they are similar, dosn't the fact that Seirocinski's complaint was adequate suggest that something is going very wrong in Souter's opinion in Twombly?

2) One way of thinking about the issue is the following: It appears that Souter's problem is that the plaintiffs' complaint is conclusory. It says there was an agreement, without offering facts adding up to an agreement. But doesn't Seirocinski say that it is OK to be conclusory? Isn't a requirement to not be conclusory a retreat to the old form of fact pleading explicitly rejected by the Federal Rules?

3) Here is a different way of reading Souter's so that it is compatible with the permissibility of conclusory pleading. The plaintiffs made the mistake of pleading parallel conduct as if it were, in itself, an agreement. The situation would be similar to Seirocinski treating in his complaint the mere fact that the cap blew up as if it were, in itself, negligence. If that is really what the plaintiffs did in Twombly then their complaint should indeed be dismissed for failure to state a claim. On the other hand, if the parallelism is simply offered as a bit of evidence, or greater particularity about the agreement, then the complaint could not be dismissed. Does this reading work?

4) Does footnote 10 force us to read Twombly as really introducing a heightened pleading standard, at least for (expensive?) antitrust actions. And doesn't that mean we have gone beyond notice pleading? Think about the plaintiffs' complaint from a notice perspective. Didn't it give the defendant's sufficient notice?

5) In footnote 14, Souter says, "In reaching this conclusion, we do not apply any 'heightened' pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9, which can only be accomplished  ‘by the process of amending the Federal Rules, and not by judicial interpretation.’ Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993))." Isn't Souter wrong? Isn't it the case that the federal rules have been amended by judicial interpretation?

6) Is it OK that the federal rules have been amended by interprettaion, since they are created by the Supreme Court anyway?

7) The Seventh Amendment says, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..." The Twombly case was a suit at common law and the value in controversy was more than twenty dollars. Doesn't Souter's standard in Twombly therefore violate the Seventh Amendment?

8) Shouldn't all of this be handled by Rule 11? Isn't sanctioning lawsuits that turn out to be frivolous the best solution, rather than using pleading standards to weed them out ex ante?

9) Can the plaintiffs in the Twombly case try suing the same defendants again with a better complaint?

10) What is the focused discovery solution suggested by Stevens? Why does the majority (and Judge Easterbrook) think it is impossible?

11) Twombly overruled Conley v. Gibson, which offered the following standard: "In appraising the sufficiency of a complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." What does this standard mean? Does it make sense at all?