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Milberg Weiss is right (sort of): Bell Atlantic v. Twombly

In Twombly v. Bell Atlantic, Milberg Weiss filed an antitrust class action against several telecommunications companies, alleging an antitrust conspiracy. In the district court, the defendants got the case dismissed on the grounds that the complaint did not make specific allegations demonstrating conspiracy. The Second Circuit reversed, noting that Fed. R. Civ. Proc. 8 does not require such specific allegations.

For some reason, the Supreme Court has granted certiorari, though they have addressed precisely this issue twice in recent years, albeit not in the antitrust circumstance.

Petitioners are correct that the Second Circuit's decision is horrible public policy: bare-bones antitrust complaints permit hugely expensive fishing expeditions with no consequences to the plaintiffs who bring the case, as numerous amicus briefs point out. But the respondents are correct that this counterproductive result is precisely what Rule 8 commands. The problem here is with the law, not with the court decisions. This is not a place for the Supreme Court to intervene as judges—but the Supreme Court can fix the problem with the rules under their authority granted to it by Congress under 28 U.S.C. �2072, and Congress can also step in.

I briefly touched upon this issue at Point of Law a year ago.

Update: Howard Bashman has a roundup of links, including to the oral argument transcript.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.