Wisconsin Adopts Twombly, Though 'No One Is Sure What Twombly Means'

In Data Key Partners v. Permira Advisers LLC, 2014 WI 86, the Wisconsin Supreme Court adopted the "plausibility" pleading standard articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which overruled the Conley v. Gibson, 355 U.S. 41 (1957), "beyond doubt"/"no set of facts" standard. Now, in order to survive a motion to dismiss in Wisconsin courts, a pleading will need to "plausibly" state a claim.

This decision was not Wisconsin's first departure from Conley's pleading standard. The Wisconsin Supreme Court recognized long ago that Wisconsin's pleading standard was stricter than Conley's "all inclusive" test. In Wilson v. Continental Ins. Co., 87 Wis. 2d 310, 317, 326-27, 274 N.W.2d 679 (1979), the Court affirmed dismissal of a negligence complaint, without leave to amend, under Wisconsin's pleading standard.

However, a full-fledged adoption of Twombly was unexpected in Data Key, not only because (as the Chief Justice recognized in dissent) Twombly was neither briefed nor argued before the Supreme Court, but also because just four months before Data Key, the Court unanimously quoted with approval Conley and pre-Wilson Court of Appeals precedent when the Court was describing principles of notice pleading in Wisconsin. CED Properties, LLC v. City of Oshkosh, 2014 WI 10.

Data Key was a lawsuit by shareholders alleging breach of fiduciary...