By Keith Bradley[*]
Bell Atlantic v. Twombly was an antitrust case. This description would have seemed obvious to the parties, their counsel, and all the courts considering the case, including the Supreme Court that ultimately decided it this May. Alas, however, Justice Stevens, in dissent, portrayed Twombly as a sweeping revision of the standards for civil pleadings and dismissals in general. Six months later, his view seems to have prevailed and language like the following is now common: “[Twombly] clarified the pleading standards concerning what is necessary to defeat a 12(b)(6) motion. . . . However, Twombly does not appear to have changed the substantive antitrust law . . . .” This statement has it backwards.
This Colloquy Post argues that Twombly changed antitrust law by modifying the elements of an antitrust conspiracy claim, but did not rework pleading rules across the board. Although the Court briefly discussed Conley v. Gibson, its language differed only superficially from the existing law of civil procedure. Meanwhile, the concept of “plausibility,” which attorneys and courts have begun to apply to all pleadings, is actually antitrust jargon. The Court used “plausibility” in its antitrust context, to resolve an existing problem in antitrust law, and it is a misreading of Twombly to extend “plausibility” beyond that context.