Initial Pleading

This chapter examines the first step in asserting a conspiracy claim
under the federal antitrust laws—pleading a cause of action. In 2009, in a
5-4 decision, the Supreme Court in Ashcroft v. Iqbal1 confirmed what
many had already surmised about the pleading standard articulated by the
Court’s 2007 decision in Bell Atlantic Corp. v. Twombly.2 In a break from
the long-established notice pleading standard, a complaint now must
contain sufficient factual matter (taken as true) to state a claim for relief
that is “plausible” on its face.3
This chapter discusses how courts apply the Federal Rules of Civil
Procedure (the “Federal Rules”) to motions to dismiss in antitrust cases. It
begins by brief ly revisiting the various historical phases of pleading
standards in federal courts, including common law, code, and notice
pleading. It then examines Twombly’s plausibility standard and its
rationale, impact, and nuances as refined and clarified by Iqbal. The
chapter concludes by examining the developments in federal pleading
standards as they are being applied by lower federal courts and considered
by state courts.
A. Historical Overview of Pleading in Federal Courts
1. Pleadings before the Federal Rules of Civil Procedure
Before the Federal Rules were implemented, common law pleadings
required highly stylized verbal formulations to present even the simplest
1. 556 U.S. 662 (2009).
2. 550 U.S. 544 (2007).
3. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).
174 Proof of Conspiracy Under Federal Antitrust Laws
of grievances.4 Many claims were dismissed at the pleading stage on
technicalities after a lawyer had “bungled the pleading war.”5
In an attempt to break from the rigidity of common law pleadings,
many states adopted codes that supplied the civil pleading rules in federal
actions at law.6 Most of these codes required only a statement of facts
constituting the cause of action in ordinary, concise language.7 A
complaint could only state the facts—not any evidence from which they
were derived nor the conclusions of law they supported.8 Because the
concepts of evidence, facts, and conclusions animated code pleading, the
rules were overly technical, easily blurred, and fostered abusive behavior.9
2. Pleading as Drafted under the Federal Rules of Civil Procedure
In 1935, the Supreme Court appointed an Advisory Committee on
Rules for Civil Procedure to draft “a unified system of general rules” to
4. See Richard L. Marcus, The Revival of Fact Pleading Under the Federal
Rules of Civil Procedure, 86 COLUM . L. REV. 433, 437 (1986) (“In
pleading, they stud iously avoid enteri ng into the Merits o f the Cause; but
are loud, violent and tedious in dwelling upon Circumstances which are
not to the Purpose.” (quoting JONATHAN SWIFT, GULLIVERS TRAV ELS
352-53 (H. Williams ed. 1926))).
5. Id.
6. Id. at 438; John M. Landry, Fact Pleading After Ashcroft v. Iqbal: The
Implications for Section 1 Cartel Cases, ANT ITRUST SOURCE, October
2009, at 1, available at
7. See, e.g., An Act to Simplify & Abridge the Practice, Pleadings &
Proceedings of the Courts of this State, ch. 379, § 120(2), 1848 N.Y. Laws
497, 521 (requiring “[a] statement of the facts constituting the cause of
action, in ordinary concise language, without repetition, and i n such a
manner as to enable a person of common understanding to know what is
8. Landry, supra note 6, at 438.
9. See Jack B. Weinstein & Daniel H. Distler, Comments on Procedural
Reform: Drafting Pleading Rules, 57 COLUM . L. REV. 518, 520-21 (1957)
(“[I]t is virtually impossible logically to disting uish among ‘ultimate facts,’
‘evidence,’ and ‘conclusions.’ Essentially any allegation in a pleading must
be an assertion that certain occurrences took place. The pleading spectrum,
passing from evidence through ultimate facts to conclusions, is largely a
continuum varying onl y in the degree of partic ularity with which the
occurrences are described.”).

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