Pleading Rules in Antitrust Cases: A Return to Fact Pleading?
Cavanagh, Edward, The Review of Litigation
The Federal Rules of Civil Procedure, adopted in 1938, introduced a simplified pleading regimen for litigation in the federal courts.1 Commonly referred to as notice pleading,2 this new pleading regimen was designed to shift the courts' attention away
from the pleadings and toward proof at trial.3 Under the simplified pleading standards adopted by the Federal Rules, the complaint need not contain a ritualistic recitation of elements of an abstruse theory of recovery, as required at common law; nor did it need to detail "facts" sufficient to make out a "cause of action," as required under the old scheme of code pleading.4 Under the Federal Rules, the complaint simply has to put the other side on notice of claims for relief, and it would withstand a motion to dismiss unless "it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief."5 Detailed factual allegations are necessary only in cases involving fraud or mistake.6
The United States Supreme Court has repeatedly reaffirmed this lenient pleading standard. Nevertheless, lower courts in antitrust cases,8 purportedly following the lead of the Supreme Court,9 have used lack of detail in complaints as a basis for dismissing claims on the merits at the pleading stage even where it is clear that the other side is on notice of the plaintiffs claims. Judges have, in effect, implemented court-made specificity requirements to supplement the standards set forth in Rule 9(b).10 This Article analyzes the questions of whether a judicially created requirement for specificity in pleading is consistent with the Federal Rules of
Civil Procedure and whether such judge-made pleading rules, if proper, ought to exist. The Article will: 1) explore general standards for pleading under the Federal Rules of Civil Procedure, 2) discuss the exceptional circumstances where specificity in pleading is required under the Federal Rules of Civil Procedure, and 3) analyze the case for and the case against a specificity in pleading requirement in antitrust cases.
II. Pleadings Under the Federal Rules
The Federal Rules of Civil Procedure reshaped the role of pleadings in federal civil actions.11 The drafters of the Federal Rules recognized that common law pleading was cumbersome and hypertechnical and forced courts to focus on the form of allegations rather than on the merits of the claim.12 In the view of the drafters, the Federal Rules should assure that litigants with meritorious claims have their day in court.13 Judgment is to be based on proof at trial and not on pleadings that initiated the suit.14 Accordingly, pleadings today play a diminished role in federal actions compared with their pivotal role at common law. To grasp the significance of the changes under the Federal Rules, it is important to understand the role historically played by pleadings in litigation.
At common law, the pleadings were the focus of the litigation.15 The pleadings set forth the alleged wrong and the remedy sought.16 Proof at trial had to relate strictly to the pleadings.17 Any proof at variance with the pleadings was excluded.18 Amendment to the pleading was virtually impossible.19 The pleading process was technical and formulaic.20 All claims had
to fit within the parameters of any one of ten recognized forms of action.21 If a complaint did not sound in one of the recognized forms of action, it was dismissed.22 Litigation was characterized by endless rounds of pleading with the goal of reducing the controversy to one question of law which then could be decided by the court without trial.23 Whereas the goal of the Federal Rules is to assure that meritorious claims are heard on the merits, the goal of common law pleading was to avoid trial. …