Bell Atlantic Corp. v. Twombly

• Author: Hillel H. Levin
• Pages: 15-31

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General is based in Virginia. The plaintiff lives in Georgia. (Assume that the

requirements for subject matter and personal jurisdiction are met by these facts.)

Be sure that your complaint complies with Rule 10(a) and (b):

Rule 10. Form of Pleadings

(a) Caption; Names of Parties.

Every pleading must have a caption with the court's name, a

title, a file number, and a Rule 7(a) designation. The title of

the complaint must name all the parties; the title of other

pleadings, after naming the first party on each side, may refer

generally to other parties.

(b) Paragraphs; Separate Statements.

A party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set of

circumstances. A later pleading may refer by number to a

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence — and each defense other than a denial — must

be stated in a separate count or defense.

Recently, the Supreme Court has issued two very important

and controversial decisions concerning Rule 8(a)(2). These

cases may have changed the standards substantially. The first

of these cases was Bell Atlantic Corp. v. Twombly.

Bell Atlantic Corp. v. Twombly

550 U.S. 544 (2007)

JUSTICE SOUTER delivered the opinion of the Court.

Liability under §1 of the Sherman Act, requires a contract, combination, or

conspiracy, in restraint of trade or commerce. The question in this putative

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class action is whether a §1 complaint can survive a motion to dismiss when

it alleges that major telecommunications providers engaged in certain parallel

conduct unfavorable to competition, absent some factual context suggesting

agreement, as distinct from identical, independent action. We hold that such

a complaint should be dismissed.

I

The upshot of the 1984 divestiture of the American Telephone & Telegraph

Company’s (AT&T) local telephone business was a system of regional service

monopolies (variously called “Regional Bell Operating Companies,” “Baby

Bells,” or “Incumbent Local Exchange Carriers” (ILECs)), and a separate,

competitive market for long-distance service from which the ILECs were

excluded. More than a decade later, Congress withdrew approval of the

ILECs’ monopolies by enacting the Telecommunications Act of 1996, which

fundamentally restructured local telephone markets and subjected ILECs to a

host of duties intended to facilitate market entry. In recompense, the 1996

Act set conditions for authorizing ILECs to enter the long-distance market.

Central to the new scheme was each ILEC’s obligation to share its network

with competitors, which came to be known as “competitive local exchange

carriers” (CLECs). A CLEC could make use of an ILEC’s network in any of

three ways: by (1) purchasing local telephone services at wholesale rates for

resale to end users, (2) leasing elements of the ILEC’s network on an

unbundled basis, or (3) interconnecting its own facilities with the ILEC’s

network. Owing to the considerable expense and effort required to make

unbundled network elements available to rivals at wholesale prices, the

ILECs vigorously litigated the scope of the sharing obligation imposed by the

1996 Act, with the result that the Federal Communications Commission

(FCC) three times revised its regulations to narrow the range of network

elements to be shared with the CLECs.

Respondents William Twombly and Lawrence Marcus (hereinafter plaintiffs)

represent a putative class consisting of all subscribers of local telephone

and/or high speed internet services from February 8, 1996 to present. In this