Suing Lance Armstrong for Lying in His Books: the Hurdle of Specificity and Plausibility under FRCP Pleading Rules?

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4 Responses

  1. Danielle Citron says:

    Thanks so much for this, Alex! Great coverage.

  2. Jon says:

    Many statutory false statement claims sound in negligence, for example Section 11 of the Securities Act of 1933. 15 U.S.C 77k. Those claims need not be pled with particularity required by Rule 9(b) — only Rule 8 applies. E.g. In re Cendant Corp. Sec. Litig., 60 F. Supp. 2d 354, 364 (D.N.J. 1999). I am not familiar with the California laws at issue to know whether it is possible to plead a negligence theory, but the plaintiffs attempt to do so. E.g. par. 1 (“Defendants knew or should have known […]” The traditional way to do so is to fully plead the facts supporting the negligence counts, plead the negligence counts, and only after the negligence count is fully pled begin to plead the fraud-based counts. See In re Refco Sec. Litig., 503 F. Supp. 2d 611, 632 (S.D.N.Y. 2007). It doesn’t look like the plaintiffs in the Armstrong case have done so, so it’s not clear they’ll be successful.

  3. Howard Wasserman says:

    Why aren’t these claims barred by the First Amendment. The point of Alvarez is that false speech retains its constitutional protection. Can states regulate how speakers market their speech? Wouldn’t that allow someone to sue a newspaper for publishing false information but marketing itself as a newspaper?

    Then we wouldn’t have to worry about Twiqbal–this would be flat-out legal insufficiency.