A Tale of Two Panels: The Size of the Chancellor's Foot in Text Messaging and Potash
Competition Policy International Antitrust Chronicle, No. 1, November 2011
8 Pages Posted: 30 Nov 2011
Date Written: November 17, 2011
Two panel opinions of the Seventh Circuit reached opposite conclusions in two massive antitrust cases during the past year, even though they purported to apply the same, now-infamous Twombly-Iqbal pleading standard, and even though the complaints in the two cases were very similar and the decisions were on the identical procedural posture. The contrast shows just how fully chaotic the Twombly-Iqbal rule is, and how great the systemic consequences are for our larger society. Both cases involved allegations of consumer harm into the many billions of dollars, but whether the challenged conduct would be subjected to the rule of law was made to depend on the subjective and apparently unrestrained personal impulses of the two federal judges that it takes to make a panel majority. As Adolph Berle once put it, the courts in these cases now apply only words, and not rules.
Keywords: Twombly, Iqbal, Twiqbal, Potash, Text Messaging, Pleading, Conspiracy, Antitrust, Price Fixing, Oligopoly, Plus-Factors, Posner, Dispositive Motions, Motions to Dismiss
JEL Classification: A12, D21, D43, K0, K2, K20, K21, L1, L13, L4, L41, Y8
Suggested Citation: Suggested Citation