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Litigation Journal

Winter 2021 | Proof

What Is Required to Overcome a Motion to Dismiss Under the Modern Pleading Regime

Mike Engelhart


  • As practitioners, it is not necessary to attempt to harmonize the myriad appellate decisions interpreting Twombly and Iqbal.
  • There are several pragmatic considerations to think about when crafting allegations.
  • A strong complaint isn’t just a series of related allegations linked to articulate a legal claim; it has a narrative.
What Is Required to Overcome a Motion to Dismiss Under the Modern Pleading Regime
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Among the 86 Federal Rules of Civil Procedure, Rule 8 is arguably one of the most—if not the most—important, as it sets the initial test all federal plaintiffs must pass in pursuing their claims. And with courts’ increasing imposition of discovery stays during the pendency of motions to dismiss, sufficiently pleading a claim is often a prerequisite to obtaining the facts (often solely within defendants’ possession) in support of that claim. This modern regime poses something of a catch-22 for civil plaintiffs: Allege sufficient factual matter at the outset of a case, when you may have little access to the underlying facts, to allow you to proceed to the fact-gathering stage. On the other hand, subjecting defendants to the often significant costs of discovery without first weeding out truly meritless claims would be inequitable.

Courts have long wrestled with how deeply to scrutinize allegations at the pleading stage, but that question has become even more thorny following two decisions from the U.S. Supreme Court that have altered both the language and the landscape of pleading in civil cases: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Even now, more than a decade after those decisions were issued, courts and commentators continue to render differing interpretations of exactly what the Supreme Court was saying and how much discretion a judge has in deciding whether a plaintiff has satisfied Rule 8’s mandate to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”

As practitioners, though, it is not necessary to attempt to harmonize the myriad appellate decisions interpreting Twombly and Iqbal. There are several pragmatic considerations to think about when crafting allegations, which can help carry a complaint across the threshold at the pleading stage. A history of how the law got to its current place and how practitioners can successfully run the “Twiqbal” gauntlet is discussed below.


For nearly 50 years, the pleading standard in civil cases was informed by the Supreme Court’s instruction in Conley v. Gibson 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.” 355 U.S. 41, 45–46 (1957). Many judges understood that admonition, even if not taken literally, as setting a low bar at the pleading stage. A complaint’s sufficiency was measured primarily by whether it afforded the defendant “fair notice” of the basis of the plaintiff’s claim so it could prepare an adequate defense.

In its 2007 decision in Twombly, however, the Supreme Court refashioned the test for determining whether a complaint satisfies Rule 8’s standard. Justice Souter, writing for the seven-member majority, explained that Conley’s “no set of facts” language “can be read in isolation as saying that any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings.” 550 U.S. at 561. The Court reasoned “such a focused and literal reading” of Conley would countenance “a wholly conclusory statement of claim . . . whenever the pleadings left open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to support recovery.” Id. (alteration in original). Noting “a good many judges and commentators have balked at taking the literal terms of the Conley passage as a pleading standard,” the majority determined the time had come to “retire[]” it. Id. at 562, 563. The phrase, the Court added, “is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563.

Instead, the Court instructed, a complaint must contain sufficient factual matter to render the claim “plausible.” The Court did not provide much guidance on what “plausibility” entails, but it did offer a few observations: On the one hand, “detailed factual allegations” are not required, and the court must “assum[e] that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555. Indeed, the Court noted, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of th[e] [alleged] facts is improbable, and that a recovery is very remote and unlikely.” Id. at 556 (citation and internal quotation marks omitted). On the other hand, “a formulaic recitation of the elements of a cause of action will not do,” and “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555.

The Court also emphasized that plausibility is a threshold less than “probability.” Id. at 556. In the antitrust conspiracy context, for example—the legal setting of Twombly—the plausibility requirement “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” In other words, before putting defendants through “the potentially enormous expense of discovery,” id. at 559, a plaintiff needs to show those discovery efforts are likely to bear fruit.

It was not clear after Twombly whether the Court’s standard applied solely to antitrust claims or more broadly. That question was answered two years later in Iqbal.


Javaid Iqbal, who was arrested on criminal charges in connection with his suspected ties to the terrorist group Al Qaeda, asserted a constitutional claim based on his treatment while confined to a maximum-security special housing unit. The defendants included former Attorney General John Ashcroft and Federal Bureau of Investigation (FBI) Director Robert Mueller, who Iqbal alleged each knew about, condoned, and agreed to subject him to harsh conditions as a matter of policy, solely on account of his religion, race, or national origin, in violation of the First and Fifth Amendments.

The key legal issue at the pleading stage was whether the complaint “state[d] sufficient allegations to show [Ashcroft’s and Mueller’s] own involvement in clearly established unconstitutional conduct,” the standard for asserting claims against federal officials, who are generally afforded qualified immunity. Both the district court, which denied the defendants’ motion to dismiss before Twombly was issued, and the Second Circuit Court of Appeals, which applied Twombly in analyzing Iqbal’s claims on appeal, held Iqbal had satisfied his pleading burden.

The Supreme Court reversed. In so ruling, the Court reiterated the plausibility standard established in Twombly but expounded on it. As in Twombly, the Court viewed plausibility through the lens of the substantive law governing the plaintiff’s claim, holding that “to state a claim based on a violation of a clearly established right, [Iqbal] must plead sufficient factual matter to show that [Ashcroft and Mueller] adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin.” 556 U.S. at 677. The Court then noted two principles undergirding the plausibility standard: First, the general rule that on a motion to dismiss a court must assume all of a complaint’s allegations are true “is inapplicable to legal conclusions.” Id. at 678. Second, while reiterating Twombly’s instruction that “only a complaint that states a plausible claim for relief survives a motion to dismiss,” the Court noted that determination would involve a “context-specific” inquiry requiring the reviewing court “to draw on its judicial experience and common sense.” Id. at 679.

Turning to Iqbal’s complaint, the Court deemed several allegations conclusory and thus not assumed true—i.e., that (1) Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject [Iqbal]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest”; (2) Ashcroft was the “principal architect” of that policy; and (3) Mueller was “instrumental” in adopting and executing it. Id. at 680–81 (quoting complaint) (internal quotation marks omitted). The Court reasoned those “bare assertions, much like the pleading of conspiracy in Twombly,” amounted to “nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Id. at 681 (quoting Twombly, 550 U.S. at 555).

The Court then evaluated what it considered the “factual allegations” in Iqbal’s complaint to determine whether they “plausibly suggest[ed] an entitlement to relief.” The complaint alleged (1) the FBI, under Mueller’s direction, “arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11”; and (2) “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id. (quoting complaint) (internal quotation marks omitted). The Court reasoned those allegations were “consistent with” Ashcroft and Mueller acting in an unconstitutionally discriminatory manner, but concluded that “given more likely explanations,” those allegations “d[id] not plausibly establish this purpose.”

Observing that the September 11 attacks were perpetrated by Arab Muslim members of the Islamic fundamentalist group Al Qaeda, which was headed by an Arab Muslim (Osama bin Laden) and largely composed of his Arab Muslim disciples, “[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.” Id. at 682. The Court added that on the facts Iqbal alleged, “the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.” Id. This was, the Court concluded, an “‘obvious alternative explanation’” that rendered Iqbal’s allegations of discrimination implausible. Id. (quoting Twombly, 550 U.S. at 557).

While the majority reiterated that Twombly does not impose a “probability” requirement at the pleading stage, the Court’s adoption of an exculpatory narrative at odds with Iqbal’s allegations suggests at least that the inquiry involves considering and weighing alternative explanations. As leading civil procedure scholar Professor Arthur Miller has observed, “the plausibility of factual allegations appears to depend on the relative likelihood that legally actionable conduct occurred versus a hypothesized innocent explanation.” Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 26 (Oct. 2010). But whether such an explanation is “obvious” (as the Court concluded in Iqbal) may be in the eye of the beholder, whose “judicial experience” and notions of “common sense” may differ greatly from those of others.

Ironically, in attempting to provide more clarity regarding the plausibility standard, Iqbal arguably raised more questions than it answered. For one thing, as Justice Souter—who authored Twombly—noted in his dissent in Iqbal (joined by Justices Stevens, Ginsburg, and Breyer), determining whether an allegation constitutes a “legal conclusion” is not always cut and dried. Justice Souter observed that the statements the majority deemed conclusory were not materially different from those the Court treated as non-conclusory, such that he found “no principled basis for the majority’s disregard of the allegations linking Ashcroft and Mueller to their subordinates’ discrimination.” 556 U.S. at 699 (Souter, J., dissenting).

Debates over which types of allegations are too conclusory to be assumed true, how high the plausibility bar is, and the precise role of “judicial experience and common sense” in deciding what is plausible and what isn’t have elicited widely diverging interpretations among the lower courts, at times leading to anomalous results.

What Exactly Is “Plausible,” Anyway?

Since Twombly’s issuance in 2007, judges have attempted to more definitively draw the line between what constitutes a mere “possible” entitlement to relief—which does not pass muster under Twombly or Iqbal—and “plausible” allegations. As the Seventh Circuit observed in In re Text Messaging Antitrust LitigationTwombly’s guidance is “a little unclear because plausibility, probability, and possibility overlap.” 630 F.3d 622, 629 (7th Cir. 2010). Others have been less charitable. In a law review article published shortly after Twombly was decided, for example, Judge Colleen McMahon of the Southern District of New York argued “what was once uniform dogma about the pleading standard for most causes of action is being fragmented on a circuit-by-circuit—or sometimes a judge-by-judge—basis,” as “district court judges suddenly and unexpectedly find ourselves puzzled over something we thought we knew how to do with our eyes closed: dispose of a motion to dismiss a case for failure to state a claim.” Hon. Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Atlantic Corp. v. Twombly, 41 Suffolk U.L. Rev. 851, 852–53 (2008). And the Tenth Circuit noted in Robbins v. Oklahoma that it was “not the first to acknowledge that the new [Twombly] formulation is less than pellucid.” 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Second and Third Circuit decisions).

Indeed, uncertainty can arise even in relatively simple cases. That is perhaps best exemplified by the Seventh Circuit’s 2010 decision in Swanson v. Citibank, N.A. The panel there—consisting of three highly respected jurists, Diane Wood, Frank Easterbrook, and Richard Posner—addressed claims under the Fair Housing Act and for common-law fraud based on Citibank’s rejection of Swanson’s application for a home equity loan using a valuation that the plaintiff alleged was made purposefully low in an effort to deny the loan application due to her race. The majority—Judges Wood and Easterbrook—upheld the district court’s dismissal of the fraud claims (which were subject to the particularity pleading requirements of Rule 9(b)) but reversed as to the statutory claims, holding she satisfied Rule 8. The majority explained that Swanson’s complaint “identifies the type of discrimination that she thinks occurs (racial), by whom (Citibank, through [a Citibank representative], the manager, and the outside appraisers it used), and when (in connection with her effort in early 2009 to obtain a home-equity loan).” 614 F.3d 400, 405 (7th Cir. 2010). Those factual allegations, the majority concluded, were “all that she needed to put in the complaint.”

Judge Posner dissented with respect to the statutory claims. He noted the complaint alleged Citibank was the second bank to turn down Swanson’s application for a home equity loan, which “reinforce[d] the inference that she was not qualified.” Id. at 409 (Posner, J., dissenting in part). Further, Judge Posner observed, Swanson’s allegations showed that “subject to the appraisal, which had not yet been conducted, Citibank had approved the $50,000 home equity loan that the plaintiff was seeking on the basis of her representation that her house was worth $270,000,” but she “didn’t think it was worth that much when she applied for the loan,” as the house was appraised at $260,000 in 2004 and the complaint alleged home values had since fallen by 16–20 percent. Judge Posner reasoned “[t]his implies that when [Swanson] applied for the home-equity loan her house was worth between $208,000 and $218,400—much less than what she told Citibank it was worth.”

Judge Posner then concluded that with a $208,000 appraisal, and assuming Citibank required that Swanson have 20 percent equity in the house (i.e., $41,600), “a $50,000 loan would have been out of the question, especially in the wake of the financial crash of September 2008, when credit, including home-equity credit, became extremely tight.” He further noted Swanson had sought a loan in early February 2009, “at the nadir of the economic collapse,” from Citibank, “one of the banks that required a federal bailout in the wake of the crash.” Judge Posner then cited a number of “[f]inancial reports in the weeks surrounding the plaintiff’s application” that “make clear the difficulty of obtaining credit from Citibank during that period.” Id. (citing articles). All of those considerations, he concluded, rendered Swanson’s discrimination claim “implausible.” Id. at 412.

That a panel consisting of three highly experienced and intellectually rigorous judges could come to such divergent conclusions regarding whether a given set of allegations in a relatively uncomplex case is plausible speaks to the malleability of the Twombly/Iqbal standard. Whether a complaint allows for a plausible inference of misconduct may, in the end, depend on which judge evaluates it.

Complex Antitrust Cases

Complex cases—particularly in the antitrust area, where claims of conspiracy often turn on circumstantial evidence—are perhaps even more susceptible to diverging rulings as to plausibility. In Anderson News, L.L.C. v. American Media, Inc., for example, the plaintiffs—an affiliate and assignee of Anderson Services, L.L.C., a magazine wholesaler—alleged that the defendants, a group of national magazine publishers and their distribution representatives, conspired to boycott Anderson and another large wholesaler (Source Interlink Distribution L.L.C. and Source Interlink Companies, Inc.) in violation of the Sherman Act after Anderson announced it would impose a surcharge on publishers for each distributed magazine copy. The court dismissed the complaint and denied the plaintiffs leave to amend.

In granting dismissal, the district court concluded the alleged goal of eliminating Anderson and Source was “not plausible,” reasoning “[p]ublishers and national distributors have an economic self-interest in more wholesalers, not fewer,” as “more wholesalers yields greater competition, which is good for suppliers.” Anderson News, L.L.C. v. Am. Media, Inc., 732 F. Supp. 2d 389, 397 (S.D.N.Y. 2010). The court also noted that the defendants “reacted differently to Anderson’s Surcharge,” i.e., one defendant “continued to supply magazines to Anderson and thus could not have participated in the parallel conduct,” two other defendants “held a cordial meeting with Anderson and responded amicably to the Surcharge,” and others engaged with Anderson, with a couple entering agreements regarding the surcharge. Those “dramatic differences among the Defendants’ reactions,” the court reasoned, “undermine[d] Anderson’s theory of conscious parallel conduct.” The court further determined that even if the complaint plausibly alleged conscious parallel conduct, dismissal would still be warranted “because the Complaint fail[ed] to place the parallel conduct in a context plausibly suggesting collusion”—specifically, it “d[id] not contain allegations of direct evidence of a conspiracy” such as “statements by an insider informant” or “records disclosed through a government investigation.”

Observing that the magazine publishers “did not acquiesce to Anderson’s demands and accordingly Anderson’s services were no longer available,” the court characterized the defendants’ actions as “a business decision.” Id. at 398. And while that decision “resulted in Anderson losing 80% of its supply of magazines,” the court added, “this was unchoreographed behavior, a common response to a common stimulus.” Id. at 398–99. The court concluded, “Unilateral parallel conduct is completely plausible in this context.” Id. at 399.

In addition to dismissing the operative complaint, the district court denied the plaintiffs’ request for leave to file their proposed amended complaint, which included additional allegations regarding meetings, conversations, and emails between or among various co-conspirators. The court determined “there [wa]s no basis for” the proposed amendment, reasoning “[t]he addition of numerous conclusory allegations d[id] not cure the deficiencies” of the prior complaint. Id. at 407.

The Second Circuit vacated the judgment, holding that even if the initial complaint did not afford a plausible inference of conspiracy, the proposed amended complaint did. In so ruling, the court of appeals articulated important principles guiding the plausibility analysis. The Second Circuit instructed that “[b]ecause plausibility is a standard lower than probability, a given set of actions may well be subject to diverging interpretations, each of which is plausible.” 680 F.3d 162, 184 (2d Cir. 2012). Further, “[t]he choice between two plausible inferences that may be drawn from factual allegations is not a choice to be made by the court on a Rule 12(b)(6) motion,” and a court “may not properly dismiss a complaint that states a plausible version of the events merely because the court finds a different version more plausible.” Id. at 185.

Applying those principles, the court of appeals determined that in holding Anderson’s allegations were implausible because unilateral conduct by the defendants “‘[wa]s completely plausible,’” the plausibility inquiry “was misdirected.” Id. at 189 (alteration and emphasis by Second Circuit) (quoting district court opinion). The Second Circuit further disapproved of the district court’s determination (in rejecting the plaintiffs’ motion for reconsideration) that the prospect that each defendant acted “‘separately’” was “‘[t]he most plausible scenario.’” Id. at 190 (alteration and emphasis by Second Circuit) (quoting district court opinion). On a Rule 12(b)(6) motion, the court of appeals explained, “it is not the province of the court to dismiss the complaint on the basis of the court’s choice among plausible alternatives.” The court concluded that assuming Anderson could adduce sufficient evidence to support its factual allegations, “the choice between or among plausible interpretations of the evidence will be a task for the factfinder.”

The Second Circuit’s analysis in Anderson News raises questions regarding the contours of the plausibility inquiry. Perhaps most critical, when do allegations cross the line between merely being “consistent with” misconduct, which is not enough, and a “plausible alternative,” which would suffice under the Second Circuit’s interpretation of Twombly? For example, couldn’t Iqbal’s allegations that Ashcroft and Mueller purposefully implemented a discriminatory inmate-treatment policy constitute a plausible alternative to the Supreme Court majority’s accepted inference that the allegations suggested lawful conduct? The fate of countless complaints will turn on the answers to these questions. Unfortunately, there are no ready resolutions. Practitioners and lower courts might benefit from further Supreme Court guidance on plausibility.

Helpful Guideposts

Nevertheless, a few basic principles have emerged from appellate courts’ application of Twombly and Iqbal, which serve as helpful guideposts to practitioners.

Plaintiff’s allegations need not indicate it was “more likely than not” misconduct occurred. It is well accepted that plausibility is not tantamount to “preponderance of the evidence.” As the Seventh Circuit explained in Text Messaging (similar to the Second Circuit in Anderson News), while a complaint “must establish a nonnegligible probability that the claim is valid,” that likelihood “need not be as great as such terms as ‘preponderance of the evidence’ connote.” 630 F.3d at 629.

Providing a further gloss on this principle, the Tenth Circuit has stated plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570). Thus, for example, an antitrust claim alleging that defendants engaged in parallel conduct (as in Twombly) could equally suggest conspiracy or non-conspiratorial independent action, rendering conspiracy implausible absent other inculpatory facts.

With plausibility, context matters. As the Tenth Circuit has explained (echoing the Third Circuit), “the degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context.” Id. at 1248 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231–32 (3d Cir. 2008)). Thus “[a] simple negligence action based on an automobile accident may require little more than the allegation that the defendant negligently struck the plaintiff with his car while crossing a particular highway on a specified date and time.” The Seventh Circuit likewise observed in Swanson that “[a] plaintiff who believes that she has been passed over for a promotion because of her sex will be able to plead that she was employed by Company X, that a promotion was offered, that she applied and was qualified for it, and that the job went to someone else”—which is “an entirely plausible scenario, whether or not it describes what ‘really’ went on in this plaintiff’s case.” 614 F.3d at 404–05. A complex commercial, antitrust, or Racketeer Influenced and Corrupt Organizations Act action, on the other hand, might require more.

With those appellate observations as a backdrop, a few guidelines should help inform practitioners’ approach to litigating plausibility issues at the pleading stage.

All roads lead back to the elements of the claim. The Supreme Court made clear in both Twombly and Iqbal that given Rule 8’s requirement that a complaint “show[] that the pleader is entitled to relief,” the plausibility analysis begins and ends with the elements of the claim being asserted. A plaintiff therefore should ensure she alleges facts supporting each element. To plead a contract claim, for example, the complaint should include facts going to the existence of a contract, the defendant’s breach of a material provision, the plaintiff’s performance under the contract (or reasons why performance was excused), and damages. Damages usually don’t need to be precise, but giving the court and the defendant notice of the basis for damages and the types of damages the plaintiff seeks is important. Pleading statutory claims will depend on the elements set forth in the statute itself and often in case law interpreting it.

Of course, in drafting the complaint, counsel (or plaintiffs acting pro se) must be cognizant of material nuances in the law based on the jurisdiction where the case is being filed. While the elements of contract and negligence claims are more or less uniform across jurisdictions, interpretations of federal provisions can vary significantly depending on the federal circuit in which the case is brought.

Facts matter; conclusions don’t. Iqbal instructs that “legal” conclusions, such as recitations of the elements of a claim, are not afforded the assumption of truth. While there is not always a bright line separating “legal” from “factual” allegations, plaintiffs should, wherever possible, provide facts rather than legalese or buzzwords. For example, alleging “Defendant acted negligently by driving well over the speed limit when he struck and seriously injured Plaintiff” is preferable to “Defendant negligently operated his vehicle, causing serious injury to Plaintiff.” And a bald allegation that “Defendants conspired to fix the price of silver” very likely will not, without at least some specifics regarding the alleged conspiratorial conduct, satisfy Twombly.

In other words, a good complaint will let the facts do the talking. Facts going to each element of the claim, even if made “on information and belief,” will make the complaint more substantive and enhance its narrative feel, which may persuade a judge that the asserted theory of liability is plausible. Given the limitations of marshaling facts in advance of discovery—particularly in complex actions where most of the pertinent facts may reside exclusively with defendants—there is only so much a plaintiff can do at the pleading stage. But a plaintiff should be sure to do sufficient diligence to gather whatever facts are reasonably available to the plaintiff and include them in the complaint.

Anticipate “obvious” alternative inferences. While the case law suggests a complaint need not rebut potential competing explanations, plaintiffs would be wise to think about “obvious” alternative inferences and how to rebut them (if possible). That doesn’t mean speculating about any possible argument or defense the opposing side might offer up, but if an alternative explanation for the defendants’ behavior is relatively easy to conceive, it is prudent to try to preempt it. As Twombly itself exemplifies, this may arise frequently in antitrust cases, in which the dividing line between parallel independent conduct and conspiracy can be fuzzy. In such cases, plaintiffs should attempt to offer a cogent explanation of why parallel conduct in that instance is indicative of conspiracy and should include additional supporting facts or analysis to “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

A good complaint tells a coherent story. A strong complaint isn’t just a series of related allegations linked to articulate a legal claim; it has a narrative—often with a “who, what, where, and when”—and, if possible, a “why,” addressing the defendants’ motivations for allegedly acting as they did or reasons why it is reasonable to infer that the defendants committed the alleged misconduct. The plausibility standard imposed by Twombly and Iqbal renders this even more important. The ultimate question will be whether the plaintiff’s story makes sense.

To further that goal, the pleader should scrutinize each allegation to make sure it does not undermine the claim. A complaint that includes internally inconsistent allegations provides fodder for the defendant and increases the likelihood the court will deem the plaintiff’s story implausible.

In the end, plausibility may be a fluid concept, not susceptible to bright lines or concrete rules. Perhaps, to paraphrase Justice Potter Stewart, a judge simply knows it when he sees it. Nevertheless, understanding the history of Rule 8, the concerns animating the Supreme Court’s decisions in Twombly and Iqbal, and lower courts’ subsequent efforts to apply the plausibility standard will afford practitioners valuable insight to effectively assert, or challenge, claims at the pleading stage.