What is the Twombly Motion-to-Dismiss Standard for Antitrust Cases? Comparing the Ninth and Second Circuits

By: Luis Blanquez (The Antitrust Attorney)

As a long-standing antitrust attorney in Europe, making the decision to move from Madrid to San Diego a few years ago to practice law in the U.S. has been a life-changing experience. Both personally and professionally. Learning from other cultures, colleagues, and languages is something I strongly recommend to everyone. It opens your mind and provides you with a different perspective about the world and yourself. And of course, that also applies to the practice of law.

Indeed, when you move to a new jurisdiction you basically become a “newborn” attorney, but with all your past experience in the backpack. That puts you in the best position to approach everything with a “fresh pair of eyes”, which in turn allows you to add value to your team and cases in a unique way.

In that respect, something I noticed during these first years of practicing antitrust law in the U.S. is how district courts, in deciding motions to dismiss cases, disagree on the applicable standard when analyzing antitrust conspiracies. Some apply the summary-judgment or trial-like standard to conspiracy allegations, particularly when confronted with “non-parallel-conduct” cases, despite the fact that a complaint at that stage is constructed without the benefits of discovery. Others misunderstand the language in Twombly about “ruling out the possibility of independent action,”—which is specific to conscious parallelism cases—and they incorrectly add it to the list of pleading requirements…

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