By Richard M. Steuer
Motions to dismiss antitrust cases have gone in and out of favor
over the years. There was a time when plaintiffs—especially
government plaintiffs—needed to plead little more than that
defendants had conspired to fix prices and restrain trade.
More recently, many courts began demanding appreciably more than
conclusory allegations of conspiracy and unreasonable restraint of
competition, including both some factual allegations and a theory
of liability that makes sense. Meanwhile, some other courts
continued to insist that pleading requirements are intended to be
minimal, and that only plaintiffs pleading nothing but conclusions
should be denied the opportunity for discovery. These two
trends converged in Bell Atlantic Corp. v. Twombly, an
antitrust case with broad implications for pleading all federal
claims.
This article discusses the new standard as set forth in Bell
Atlantic v. Twombly and the implications of the Court’s
ruling, arguing that the key issue always will be whether the
plaintiff has pleaded “enough facts” to state a plausible claim,
without resorting to “a legal conclusion couched as a factual
allegation” and that the principal challenges for future courts
will be to distinguish facts from conclusions masquerading as facts
and decide how many genuine facts are “enough.” Although this
always was pivotal on motions to dismiss, Twombly
increases the burden by replacing the “no set of facts test” with a
“show me the facts” test.