In this issue:
U.S. Supreme Court’s Decision in Twombly
In this case, the Court addressed the issue of whether allegations of parallel conduct, coupled with a bare allegation of conspiracy, are sufficient to state a claim for relief under 1 of the Sherman Antitrust Act.
Yesterday, in the Twombly case, the U.S. Supreme Court ruled that plaintiffs alleging a contract, combination, or conspiracy in violation of Section 1 of the Sherman Act must plead more than the conclusion that the defendants agreed to the illegal conduct.
The majority opinion makes no effort to explain how we as a society should confront this core one-sidedness of information. This is hardly just an antitrust problem. We will constantly confront information that is systematically more available to one side more than the other, and we will see that in cases across the board, including the discrimination cases that receive some attention in today’s opinions.
As an antitrust case, Twombly reaffirms the important principle from the Court’s 1954 Theater Enterprises decision repeated since in cases like Monsanto and Matsushita that parallel conduct by competitors, even if based on shared appreciations of their interdependence, is not illegal.
Convergence in Antitrust Enforcement
There are many philosophies of antitrust enforcement in the world, but in recent years we are witnessing greater and greater convergence.