Académique Documents
Professionnel Documents
Culture Documents
10-1172
IN THE
Supreme Court of the United States
IN RE TEXT MESSAGING ANTITRUST LITIGATION
Respectfully submitted,
DANIEL J. POPEO
RICHARD A. SAMP
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Ave., NW
Washington, DC 20036
202-588-0302
rsamp@wlf.org
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . v
Page
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
v
TABLE OF AUTHORITIES
Page(s)
Cases:
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) . . . . . . . . . 1, 6, 10, 12, 18, 20
Iqbal v. Hasty,
490 F.3d 143 (2d Cir. 2007),
rev’d sub nom., Ashcroft v. Iqbal,
129 S. Ct. 1927 (2009) . . . . . . . . . . . . . . . . . . . . 20-21
Page(s)
Statutes:
28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
Miscellaneous:
Fed.R.Civ.P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . 2, 8
BRIEF OF WASHINGTON LEGAL FOUNDATION
AS AMICUS CURIAE IN SUPPORT OF PETITIONERS
__________
1
Pursuant to Supreme Court Rule 37.6, WLF states that
no counsel for a party authored this brief in whole or in part; and
that no person or entity, other than WLF and its counsel, made a
monetary contribution intended to fund the preparation and
submission of this brief. More than ten days prior to the due date,
counsel for WLF provided counsel for Respondents with notice of
intent to file.
2
2
The circumstantial evidence cited by the appeals court
included allegations that: (1) Petitioners engaged in “parallel
behavior”; (2) the industry structure “facilitate[d] collusion”; (3)
Petitioners belonged to a trade association at which price
information was shared; (4) Petitioners raised prices in the face of
falling costs; and (5) the price rises were “simultaneous.” Id. at 9a-
10a.
5
Id. at 555.
Id. at 556-57.3
3
The Court subsequently explained Twombly’s treatment
of parallel conduct allegations as follows: “Acknowledging that
parallel conduct was consistent with an unlawful agreement, the
Court [in Twombly] nevertheless concluded that it did not plausibly
suggest an illicit accord because it was not only compatible with, but
indeed was more likely explained by, lawful, unchoreographed free-
market behavior. Iqbal, 129 S. Ct. at 1950 (citing Twombly, 550
U.S. at 567).
11
4
That assessment of Twombly’s most noteworthy holding
is not widely shared. Twombly itself noted that prior antitrust case
law had long since conclusively established that “parallel business
behavior” does not, by itself, “constitute a Sherman Act offense.”
Twombly, 550 U.S. at 553-54 (quoting Theatre Enterprises, Inc. v.
Paramount Film Distributing Corp., 346 U.S. 537, 540-41 (1954)).
Rather, most of the attention on Twombly focused on its holding
that an allegation that defendants have engaged in an antitrust
conspiracy is a legal conclusion that need not be accepted as true
unless supported by sufficient factual allegations, id. at 555-56, and
on Twombly’s assessment of whether specific factual allegations
were sufficient to state a claim.
13
5
The court reinstated one small portion of the claims,
based on direct evidence that some insurance brokers had engaged
in bid rigging.
17
6
In contrast, the Seventh Circuit – in finding that the SAC
stated a claim – relied in part on allegations that price information
was exchanged at trade association meetings. Pet. App. 9a. The
Seventh Circuit never explained how such information exchanges
were suggestive of price fixing, particularly since each of the
Petitioners’ prices were publicly posted – as one would expect with
a company seeking to sell products or services to the general public.
18
CONCLUSION
Respectfully submitted,
Daniel J. Popeo
Richard A. Samp
Washington Legal Foundation
2009 Massachusetts Ave., NW
Washington, DC 20036
(202) 588-0302
rsamp@wlf.org