Antitrust and Consumer Protection
Competition: Fall 2015, Vol 24, No. 2
Content
- A Tale of Two Statutes: Cipro, Edwards, and the Rule of Reason
- Antitrust Treatment of State Licensing Boards In the Wake of North Carolina State Board of Dental Examiners V.F.T.C.
- Breaking a Monopoly: Vigilante Justice or the Sort of Innovative Approach We Celebrate?
- Capitalizing On Judicial Antitrust Experience
- Chair's Column
- Editor's Note
- Health Care Merger Analysis In the Era of Payment Reform
- Masthead
- Mobile Apps: Redefining the Virtual California Economy and the Laws That Govern It
- Off-label Use of the Cartwright Act: Will Cipro Require State Courts To Assess Federal Patent Validity In Pay-for-delay Cases?
- Promoting Antitrust Compliance the Antitrust Division's Subtle Shift Regarding Corporate Compliance: a Step Toward Incentivizing More Robust Antitrust Compliance Efforts
- Putting Cipro Meat On Actavis Bones: a Case Study In Filling In the Legal Gaps
- Table of Contents
- The Antitrust and Unfair Competition Law Section
- The Magna Carta and the Sherman Act
- The Northern District of California Opens Its Doors To the World's Civil Antitrust Disputes
- What You See Isn't What You Get: How the Colgate Doctrine May Apply To the Disposable Contact Lens Antitrust Litigation
- Pleading An Antitrust Conspiracy In a Post-twombly World
PLEADING AN ANTITRUST CONSPIRACY IN A POST-TWOMBLY WORLD
By Joshua Stokes and Jordan Ludwig1
I. INTRODUCTION
Bell Atlantic Corp. v. Twombly is one of the most important cases to ever be decided interpreting the Federal Rules of Civil Procedure.2 At its core, Twombly clarified what Federal Rule of Civil Procedure 8(a)(2) means when it asks for a "short and plain statement of the claim showing that the pleader is entitled to relief" and how a complaint survives a motion to dismiss for failure to state a claim upon which relief can be granted brought under Rule 12(b)(6). The Court’s new interpretation of these rules—described in detail below—abrogated its prior decision in Conley v. Gibson,3 which merely required the plaintiff to provide fair notice of the claim to the defendant.
Twombly’s significance is undeniable. According to Westlaw, as of July 31, 2015, it has been cited in a breathtaking 118,866 judicial opinions. But despite its near universal relevance, Twombly is of special import in antitrust cases—and, more specifically, conspiracy cases under Section 1 of the Sherman Act.4 Twombly itself was a Section 1 conspiracy case alleging an agreement between telephone companies to thwart competition by preventing upstart companies from expanding in the market and by agreeing not to compete with one another.5 The Court’s holding in Twombly was grounded largely in antitrust principles—so much so that it led some lower courts to initially conclude that the rule in Twombly applied only in conspiracy cases.6 The Supreme Court clarified Twombly’s broader application two years later in Ashcroft v. Iqbal—notably, over the dissent of Justice Souter, Twombly’s author.7