Second Circuit Decision On Pleading Conspiracy More Welcoming To Plaintiffs

The Supreme Court recently decided not to review a Second Circuit decision on the standard for pleading conspiracy, leaving in place that decision, Anderson News, LLC v. American Media, Inc., 680 F.3d 162 (2d. Cir. 2012). In its opinion, the Second Circuit held that, when assessing the sufficiency of the plaintiff's pleadings under Sherman Act § 1, the court should not question whether there are other plausible, or even more plausible, alternatives to the plaintiff's theory. This decision in Anderson could make pleading conspiracies considerably easier for antitrust plaintiffs, at least in the very important Second Circuit. Second Circuit precedent on assessing conspiracy claims

The U.S. Supreme Court's 2007 decision in Bell Atlantic v. Twombly set a new standard in antitrust pleadings under Section 1. The Court held that plaintiffs must plead "plausible grounds to infer an agreement" with "context that raises a suggestion of a preceding agreement." Under well-established caselaw, allegations of parallel conduct must be accompanied by allegations of so-called "plus factors," which the Supreme Court has defined as "anything that tends to exclude independent action." But courts and parties continue to wrestle with exactly what is required to plead conduct that crosses that line. In a prior decision on this question, In re Elevator Antitrust Litigation, the Second Circuit acknowledged that difficulty, observing that "'considerable uncertainty' surrounds the breadth" of the Twombly decision. The court there explained that "while Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiff[s'] claims across the line from conceivable to plausible.'" The Elevator decision further explained that "it is not enough to make allegations of an antitrust conspiracy that are consistent with an unlawful agreement; to be viable, a complaint must contain 'enough factual matter'… to suggest that an agreement" actually was made. In Elevator, the Second Circuit dismissed the plaintiffs' complaint for failing to satisfy that requirement. The plaintiffs had alleged that the defendant-elevator manufacturers violated Section 1 by conspiring to foreclose competitors from providing repair services to the defendants' elevators. The court explained that the plaintiffs' allegations consisting solely of parallel conduct were insufficient because, "while that conduct is consistent with conspiracy, [it is] just as much...