Casenote: Bell Atlantic V. Twombly

Abstract:     
On May 21, 2007 the Supreme Court reversed the unanimous decision of the Second Circuit in Bell Atlantic Corp. v. Twombly. The Court held that allegations of parallel conduct by competitors, without more, were insufficient to state a claim for a conspiracy in violation of the Sherman Act § 1. The result had been predicted by many in the established antitrust bar and in academic circles. As an antitrust case, Twombly reaffirms the important principle from the Court's 1954 Theater Enterprises decision - repeated since in cases like Monsanto and Matsushita - that parallel conduct by competitors, even if based on shared appreciations of their interdependence, is not illegal. Twombly is also tantalizingly close - but stops short of being - the Supreme Court's first express recognition of the "plus factors" framework for circumstantial proof of a Sherman Act § 1 conspiracy. Twombly has much greater implications as a civil procedure decision. In stating that the "any state of facts" standard from the Court's 1957 Conley decision "has earned its retirement," Twombly seemingly announces a new rule for pleading that gives ground for re-evaluation of how generations of lawyers were taught to frame and respond to complaints.

This case note first discusses the Twombly litigation leading up to the Court's grant of certiorari in fall 2006. It then turns to the Supreme Court's decision, discussing Justice Souter's opinion for the majority and Justice Stevens's dissent. The note then analyzes the impact of Twombly on antitrust law and on pleading practice generally.

Keywords: antitrust, pleading

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