Closing the Doors to (Antitrust) Plaintiffs?

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Randal Picker, May 24, 2007

This piece was originally published on the University of Chicago Law School Faculty Blog, reprinted here with the permission of the author. The original post, and comments thereto, may be found here.

Today, in a 7-2 opinion, in Bell Atlantic v. Twombly, the Supreme Court ruled that the mere assertion in a complaint of an underlying agreement violating Section 1 of the Sherman act was insufficient to withstand a motion to dismiss when the parallel behavior in question could just as easily be explained as independent behavior. The majority opinion, authored by Justice Souter, emphasizes the high costs associated with antitrust discovery. In reaching its conclusion, the Court “retires” as it puts it “its 1957 decision in Conley v. Gibson in which the Court spoke of ” the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Twombly is an important case for the antitrust bar, but it may matter everywhere. How much did the door to federal court close today? David Fischer at the Antitrust Review usefully summarizes reactions to today’s opinion. I posted on this case after the oral argument was heard in the Supreme Court. That argument made much of Form 9 attached to the Federal Rules of Civil Pro