Monday, March 9, 2015
Douglas A. Herman and Seth B. Sacher (FTC) offer AN ECONOMIC ANALYSIS OF TWOMBLY/IQBAL WITH APPLICATIONS TO ANTITRUST.
ABSTRACT: The Bell Atlantic v. Twombly and Ashcroft v. Iqbal Supreme Court opinions refined the threshold for motions to dismiss claims. In elaborating on these thresholds, the Court discussed the legal interplay of “possibility,” “plausibility,” and “probability.” The Court emphasized that claims must go beyond a recitation of theories or legal standards and rely on some level of factual allegations. Since the Iqbal decision, numerous lower courts have applied the newly articulated Twombly/Iqbal standards. Legal practitioners have argued that there are inconsistencies between courts when evaluating the scope and application of these standards. In order to help resolve this murkiness, this paper suggests a structured methodology that can be employed when arguing a motion to dismiss. A number of tools for evaluating the Twombly/Iqbal standard are proposed. We posit “strong” and “weak” conditions for satisfying these standards. The “strong” conditions for surviving a motion to dismiss are satisfied if well articulated conditions that meet the logical concept of sufficiency along with supporting facts are presented. Under the weak criteria, the claims are more likely to meet the standards the closer they are to the logical concept of sufficiency. In other words, the more “unlikely” are the claims (and supporting facts) to exist in the absence of a violation, the better able are the claims to meet the standard. The proposed methodology is applied to a broad range of antitrust categories.