What is also missing from all of these great papers of on Twombly,Iqbal and Swierkierwicz is the notion of disparate impact. Disparate impact. Here is a definition of disparate impact – “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

Disparate Impact seems to escape Twombly and Iqbal, why? Because there is some policy and there is some statistical story. You don’t have to look in the mind of someone. Especially not in the mind’s of men who are saving lives of Americans. Though there may have been a bad policy paper lying around.

So Iqbal may have been successful by claiming disparate impact of those in SHU and maybe saying that Disparate Impact obviously exists but there is possibly some parallel policy at play. Most likely, the disparate impact would have survived given that there may have been a lot of common criminals housed in Shu but who happen to be Muslim or Middle East origin.

Twombly failed because of the inferences on inferences without having a transactional event and they had no one to say that there was a meeting. If they simply had enough people to say that they think the meeting was at the Hilton, or the Waldorf Astoria, and put enough players there – well you might have had something. It was correctly dismissed because it didn’t speak to the possibility of a real meeting.

Swierkiewicz survived and complaints like Swierkiewicz survive because all of the actors or within the transactional events. So that’s it – If the actors are within the transactional events you do not have to infer in discriminatory state of mind – The events tell the story until discovery.

If you are a Plaintiff – you had better create a transactional complaint where all of the actors are closely linked by dates, times, events, conversations are you may suffer a Twiqbal. With my understanding Swierkiewicz is still good law and that’s the reason why. Excuse my short hand, I am pro se facing a 12(b)(6) motion and my writings should be liberally construed :-)

The Second Circuit’s recent decision in Arista Records LLC v. Doe 3, No. 09-0905, 2010 WL 1729107, 2010 U.S. App. LEXIS 8879 (2d Cir. Apr. 29, 2010 confirms that Twombly did not set aside Swierkiewicz at least in the 2nd Circuit.

The Arista decision says this: First, the notion that Twombly imposed a heightened standard that requires a complaint to include specific evidence, factual allegations in addition to those required by Rule 8, and declarations from the persons who collected the evidence is belied by the Twombly opinion itself. The Court noted that Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the defendant fair notice of what the … claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (other internal quotation marks omitted); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 512, (2002) (holding that, at the pleading stage, an employment discrimination plaintiff who alleges facts that provide fair notice of his claim need not also allege “specific facts establishing a prima facie case,” for such a “heightened pleading standard … conflicts with Federal Rule of Civil Procedure 8(a)(2)”). The Twombly Court stated that “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” but mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do”; rather, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555 (emphasis added), i.e., enough to make the claim “plausible,” id. at 570….