January 14, 2019

In this article, Jenner & Block Associate Daniel A. Epstein uses applied math to define, and empirical data to estimate, the height of the federal “plausibility” pleading threshold as it pertains to Rule 12(b)(6) motions to dismiss.  According to his findings, “on average, in order to be ‘plausible,’ a complaint should persuade a court that there is no less than a 12.2 percent chance that the defendant is truly responsible for that which they are being sued.”  The article also offers a way to unify the rules of decision for pleading, discovery and verdict/judgment, which “could improve litigation efficiency by eliminating incentives for litigants to present dishonest and inconsistent assertions regarding the proper scope of discovery.”