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Tuesday, November 28, 2006

Twombly Oral Arguments

A transcript of the oral arguments in Bell Atlantic v. Twombly,  obtained from the Supreme Court web site, is attached here:  Download twomblyoralargs.pdf

There were some very lively exchanges during the argument.  Bell Atlantic was represented by Mr. Michael Kellogg of Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C..  Thomas Barnett, AAG for the Antitrust Division of the Department of Justice, also argued on behalf of Bell Atlantic.    J. Douglas Richards of Milberg Weiss Bershad & Schulman LLP represented Twombly. 

Mr. Kellogg's argument focused largely on the sufficiency of Twombly's complaint, making the point that while the complaint stated legal conclusions and failed to state an antitrust claim. His argument
framed the case as a matter of substantive antitrust law.  The following exchange, on page 14-15, is representative:

Mr. Kellogg: Our problem with the current complaint is not a lack of specificity, it's quite specific.  It provides color maps and such.  The problem is that the facts specifically alleged simply don't amount to an antitrust violation because they don't support the inference that the plaintiffs ask the Court to draw.

Justice Breyer: Oh, but they'r--they're using the fact that there was parallel behavior as a basis for thinking there was more than parallel behavior.  They are using it as a basis for thinking that once, on some occassion that's relevant, there were people meeting in a room and saying things to each other.  So they are not just that it's sufficient.  They are saying it's evidence that something else occurred. 

Mr. Kellogg:  That's correct. That's exactly what they are saying and what Matsushita and the other courses, cases of this Court dealing with parallel conduct indicate, is that tht's not a fair inference from parallel conduct.

Mr. Barnett's argument on behalf of Bell Atlantic focused on the Second Circuit's opinion which, he stated. provided a liberal pleading requirement that would allow the mere allegation of parallel action or inaction would  state a  claim under Section 1 of the Sherman Act.  "Such a result," Mr. Barnett stated, "fails to appreciate that parallel action or inaction is ubiquitous in our ecomy and often reflects beneficial competitive forces."  Chief Justice Roberts and Justice Breyer engaged Mr Barnett on this issue.

Mr. Richards, on behalf of Twombly,  emphasized that the requirements for 12(b)(6) are different from those for a summary judgment motion, distinguishing Matsushita.   Justices Breyer, Stevens, Scalia, and Souter each engaged Mr. Richards on whether the pleading standard proposed by Mr. Richards, that relied on parallel conduct, would not make all industry liable in the US liable under the antitrust laws.  The Court seemed to be looking for some limiting principle.  The following exchange between Mr. Richards and Justice Ginsburg (at pages 39-40 of the transcript) was particularly interesting:

Mr. Richards:  If we had proof that they actually acted against what would have been theiry self-interest in the absence of a conspiracy, we would satisfy then the Masushita standard for summary judgment.

Justice Ginsburg: I don't understand acting in self-interest.  I mean, they might just decide apart from, you know, if they go ino their territory they'll come into mine, they investing in this wired business isn't the best, the best bet for them. Maybe they want to get into the wireless business and think that's a bettery way to spend their money.

Mr. Richards [incorrectly identified as Mr.  Barnett in the transcript]: Surely, it is possible to conceive of facts under which they would not have not have conspired [sic] and they would have had a different motive, but that's not the legal standard under Conley versus Gibson.

Justice Ginsburg: But I'm questioning you. You say you meet the plus factors because they were acting agains their self-interest, that a self-interested player in this league would have gone into the other's territory, and I'm questioning that by saying that they might have seen this whole area as not the best plact to invest their money. 

Mr. Richards: I understand that. But we have alleged that as fact, Justice Ginsburg, and that fact and that allegation has to be treated as true under conventional pleading standards for purposes of a motion to dismiss.  If we are unable to prove that fact when we get to summary judgment--

Judging from the transcript, the oral arguments seemd to have been quite lively.  But I am not sure that I would change my prediction that the Court will affirm the Second Circuit.  I did not get a sense that the Court wants to apply the Matsushita standard to the 12(b)(6) context or to apply tests for economic rationality to gauge the adequacy of the pleadings.  If the Court does raise the pleading requirements for antitrust cases, I would be surprised and also concerned.

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