Antitrust Update

by
Robert K. Taylor

June 2007

The U.S. Supreme Court has issued a new antitrust opinion that could have far-reaching effects on other types of business litigation as well. In Bell Atlantic Corp. v. Twombly, the Court held that class action plaintiffs alleging an antitrust conspiracy must include enough facts in the complaint "to raise a reasonable expectation that discovery will reveal evidence of an illegal agreement." The plaintiffs' assertion that an agreement existed, based on parallel conduct by the defendants over a seven year period, was not enough to "nudge[] their claims across the line from conceivable to plausible" and therefore had to be dismissed. The Court explained its decision in part by pointing out the massive burden of discovery requests on corporate antitrust defendants.

The Twombly case is likely to have an effect on other types of business litigation because it suggests that plaintiffs should always be required to allege facts that plausibly support their claims, and that a complaint based on speculation or assertions unsupported by specific facts should routinely be dismissed. The Court stated that "factual allegations must be enough to raise a right to relief above the speculative level," and that the "prospect of unearthing direct evidence" not set forth in the complaint is not grounds to let a case proceed. While the majority in Twombly argued that their decision did not impose a heightened pleading standard, they also drew a line between "conceivable" and "plausible" claims. In many situations, defense counsel should be able to argue convincingly that a plaintiff's complaint does not contain enough facts to be plausible, as required by Twombly.