Setting the Standard: A Fraud-based Approach to Antitrust Pleading in Standard Development Organization Cases

Abstract

This Comment addresses the question of whether claims brought under Section 2 of the Sherman Act based on allegations of deception of a Standards Development Organization ("SDO") must meet the heightened pleading requirements of Rule 9(b). Despite the growing amount of litigation in this area, to date, no court has specifically addressed this matter. The Comment explores how courts have approached similar questions in other areas involving intellectual property law and antitrust law, such as Walker Process fraud claims. Ultimately, the Comment suggests a framework for evaluating these new claims and concludes that within the framework, SDO-based antitrust claims do meet the requirements for heightened pleading.

Keywords: antitrust, SSO, SDO, pleading, Rule 9, patent