9(b) or Not 9(b)? That Is the Question: How To Plead Negligent Misrepresentation in the Post-Twombly Era
pleading, Twombly, civil procedure
Perhaps nothing is more important to a litigant bringing an action in federal court than knowing the relevant pleading standard for his or her underlying claims. Ever since the inception of the Federal Rules of Civil Procedure, one of two pleading standards have applied to common law claims: the Rule 8(a)(2) standard, requiring a short and plain statement demonstrating entitlement to relief, or the Rule 9(b) standard, demanding that allegations of fraud or mistake be pled with particularity. At the intersection of these two pleading standards is the common law claim of negligent misrepresentation. Courts across the country have long disagreed over which standard should apply to negligent misrepresentation claims, with divisions present across and within circuits and districts.
In 2007, the U.S. Supreme Court further complicated this issue in the seminal opinion Bell Atlantic Corp. v. Twombly, which effectively imposed a heightened “plausibility” requirement for claims governed by Rule 8(a)(2). This change has since led some lower courts, but not all, to reconsider which pleading standard to apply to claims of negligent misrepresentation.
This Note: (1) explores the pleading standards and their evolution with respect to negligent misrepresentation claims; (2) describes the circuit split and intracircuit fractures that have emerged from the different standards; (3) analyzes the significant procedural and substantive problems the competing standards have created, especially in light of Twombly; and (4) offers a possible resolution comporting with the Twombly holding to standardize the pleading of negligent misrepresentation claims across the nation’s federal courts.
9(b) or Not 9(b)? That Is the Question: How To Plead Negligent Misrepresentation in the Post-Twombly Era,
82 Fordham L. Rev. 1447
Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss3/8