Perhaps the ultimate "Twiqbal" argument is now playing out in litigation regarding LIBOR fraud by several massive banks. Barclays and other banks are busy admitting LIBOR fraud and preparing to pay massive fines, such as Barclay’s $ 450 million payment. But meanwhile other banks are moving to dismiss antitrust claims from the LIBOR fraud, claiming that the frauds are not adequately detailed in pleadings to date. As to the big picture, Alison Frankel has the more complete story – and links to pleadings – in a new blog post. And more facts are now public about Barclay’s role in LIBOR fraud. Things do not look good as even the Economist is asking if the finance industry has hit its "tobacco moment."
The Twiqbal pleading standard has been massively helpful to business as it has knocked out many claims. But, as with other principles, one needs to keep an eye on the swinging pendulum. That is, too much Twiqbal success today may cause Twiqbal’s demise tomorrow if it is applied to knock out claims that appear pretty darn true in light of the limited materials made public to date. Twiqbal motions may end up as another example of the need to be careful about wishing for too much.