Twombly: Good, Bad, or Who Cares?

Josh Wright —  24 May 2007

My apologies for the blogging hiatus. I’ve spent the last ten days grading, traveling, grading, being sick, and hanging out with family in sunny San Diego. But now the grading is done, I’m feeling better, and I’ve had an opportunity to do a little blog-speed catch up. I guess the biggest antitrust news is Twombly, so I’ll start there.

David Fischer has all the Twombly reactions covered over at Antitrust Review. The reactions range from applause (see, e.g. Richard Epstein’s take in the WSJ, indifference (Einer Elhauge guest-blogging at VC describes the decision as “quite insignificant” to the dismay of some commentors), to critical (see, e.g. Randy Picker’s take here).

While I agree with the commentators that have noted that Twombly’s primary legacy will be procedural — the death of the “no set of facts” language in ConleyTwombly’s antitrust-specific relevance will be a function of how courts scrutinize conspiracy allegations at the motion to dismiss stage in applying the “plausibility” standard. The “plausibility” standard may amount to the “plus factor” standard. Maybe something less. Maybe more (but I doubt it). Bottom line: I’m satisfied with the “plausibility” standard, and register myself with the pro-Twombly camp, but it will be interesting to watch how Section 1 claims play out at the dismissal stage over the next few years. For that matter, it might be interesting to see how the “plausibility” standard is applied in non-conspiracy settings as well.

But how does Twombly fit into the recent and revived SCOTUS antitrust jurisprudence? I’ve been thinking a bit about this question and how Twombly maps into themes emerging (or possibly to emerge!) from the jurisprudence (or jurisprudence-to-be) embodied by Weyerhauser, Leegin, Credit Suisse, and maybe even going back to the 2005-06 term to include Independent Ink, Dagher, and Volvo Trucks. As far as extrapolating larger trends from the recent decisions, it is obviously a bit early since many of these cases are still pending and the Court may grant cert on a reverse payment case, but I’ve got a few ideas. Ok, one idea. And its still half-baked (a sensible Leegin decision that relies on empirical evidence regarding the anticompetitive theories of RPM could help the baking process…).  But I’m going to be writing up some thoughts on the latest SCOTUS term this summer for an upcoming issue of Competition Policy International, and will be previewing them here in the weeks to come (likely after having the benefit of the Leegin decision).

2 responses to Twombly: Good, Bad, or Who Cares?


    Welcome back, Josh. I, too, have been buried with grading. Am just about finished.

    Based on my experience as a litigator, I believe Twombly’s effect will be significant OUTSIDE the antitrust context. Conley’s nasty little “no set of facts” language mucked up many a motion to dismiss (or, more accurately, many a reply brief to a motion to dismiss — the plaintiff would always quote Conley in the response brief). I’m thrilled that a majority of the Court has agreed that Conley’s “no set of facts” language has, in Justice Souter’s words, “earned its retirement.”

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