Twombly and communication: The emerging definition of concerted action under the new pleading standards

Journal of Competition Law and Economics

Volumn 5, Issue 3, 2009, Pages 439-468

  Page, William H ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 70349604352     PISSN: 17446414     EISSN: 17446422     Source Type: Journal    
DOI: 10.1093/joclec/nhp005     Document Type: Article

References (271)

1. 127 S. Ct. 1955 (2007).
2. 15 U.S.C. §1 (West 2004) ("Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.").
3. Id. at 1965.
4. Id. at 1974 ("Here, in contrast, we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.").
5. See also Erickson v. Pardus, 127 S. Ct. 2197 (2007).
6. Id. at 1965.
7. See also Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007) (reading Twombly to require plaintiffs "to amplify a claim with some factual allegations" where necessary "to render the claim plausible").
8. 355 U.S. 41 (1957).
9. Id. at 45-46, overruled by Twombly, 127 S. Ct. at 1969 (observing that "Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough").
10. Gerald A. Stein, Bell Atlantic Corp. v. Twombly: Requiring a Plausible Analysis at the Pleading Stage, ANTITRUST SOURCE (Dec. 2008), available at http://www.abanet.org/antitrust/ at-source/08/12/Dec08-Stein12-22F.pdf
11. Max Huffman, The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims, 10 U. PA. J. BUS. & EMP. L. 627 (2008).
12. Some courts had begun imposing stricter pleading standards for antitrust conspiracy cases before Twombly. Christopher Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 1015 (2003) (observing that some courts dismiss claims "where allegations of conspiracy are made without sufficient supporting facts constituting the conspiracy, its object, and accomplishment"). The effect on non-antitrust cases is less clear.
13. See, e.g., Erickson v. Pardus, 127 S. Ct. 2197, 2199-200 (2007) (reversing dismissal of pro se prisoner complaint and reaffirming that Fed. R. Civ. P. 8(a)(a)(2) does not require pleading of specific facts).
14. See, e.g., Kendall v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008)
15. In re Elevator Antitrust Litig., 502 F.3d 47 (2d Cir. 2007)
16. Parker v. Learn the Skills Corp., 530 F. Supp. 2d 661 (D. Del. 2008)
17. In re Digital Music Antitrust Litig., No. 1780, 2008 WL 4531821 (S.D.N.Y. Oct. 9, 2008)
18. Fair Isaac Corp. v. Equifax Inc., No. 06-4112, 2008 WL 623120 (D. Minn. Mar. 4, 2008)
19. In re Rail Freight Fuel Surcharge Antitrust Litig., No. 07-489, 2008 WL 4831214 (D.D.C. Nov. 7, 2008)
20. City of Moundridge v. Exxon Mobil Corp., 250 F.R.D. 1 (D.D.C. 2008)
21. In re Static Random Access Memory (SRAM) Antitrust Litig., No. M:07-cv-01819, 2008 WL 426522 (N.D. Cal. Feb. 14, 2008)
22. In re Parcel Tanker Shipping Servs. Antitrust Litig., 541 F. Supp. 2d 487 (D. Conn. 2008)
23. Int'l Norcent Tech. v. Koninklijke Philips Elecs. N.V., No. CV 07-00043, 2007 WL 4976364 (C.D. Cal. Oct. 29, 2007)
24. In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011 (N.D. Cal. 2007)
25. Arista Records LLC v. Lime Group LLC, 532 F. Supp. 2d 556 (S.D.N.Y. 2007)
26. In re Late Fee & Over-Limit Litig., 528 F. Supp. 2d 953 (N.D. Cal. 2007)
27. Behrend v. Comcast Corp., 532 F. Supp. 2d 735 (E.D. Pa. 2007)
28. Schafer v. State Farm Fire & Cas. Co., 507 F. Supp. 2d 587 (E.D. La. 2007)
29. Hackman v. Dickerson Realtors, Inc., 520 F. Supp. 2d 954 (N.D. Ill. 2007)
30. In re Rubber Chems. Antitrust Litig., 504 F. Supp. 2d 777 (N.D. Cal. 2007)
31. In re Travel Agent Comm'n Antitrust Litig., No. 1:03 CV 30000, 2007 WL 3171675 (N.D. Ohio Oct. 29, 2007)
32. Hyland v. Homeservices of Am., Inc., No. 3:05-CV-612-R, 2007 WL 2407233 (W.D. Ky. Aug. 17, 2007)
33. In re OSB Antitrust Litig., No. 06-826, 2007 WL 2253419 (E.D. Pa. Aug. 3, 2007)
34. Am. Channel, LLC v. Time Warner Cable, Inc., No. 06-2175, 2007 WL 1892227 (D. Minn. June 28, 2007).
35. Other cases have applied Twombly to vertical arrangements like resale price maintenance and tying arrangements. See, e.g., Babyage.com, Inc. v. Toys "R" Us, Inc., 558 F. Supp. 2d 575 (E.D.Pa. 2008)
36. Heartland Payment Systems, Inc. v. MICROS Systems, Inc., No. 3:07-cv-5629, 2008 WL 4510260 (D.N.J. September 29, 2008)
37. Trans World Techs., Inc. v. Raytheon Co., No. 06-5012, 207 WL 3243941 (Nov. 1, 2007).
38. One commentator over 50 years ago "despair[ed] of providing... a compendious definition" of agreement, but attempted "by the process of exclusion and exclusion to reduce the concept... to its hard core." Milton Handler, Contract, Combination or Conspiracy, 3 A.B.A. ANTITRUST SEC. REP. 38, 40 (1953). The courts had engaged in similar process over the history of the Sherman Act.
39. Id. at 39.
40. RICHARD A. POSNER, ANTITRUST LAW 262 (2d ed. 2001) ("[T]he courts sensibly have not worried about whether the terms 'contract,' 'combination,' and 'conspiracy,' in section 1, have nonoverlapping meanings.").
41. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768-69 (1984).
42. For terms of formal cartel agreements, see United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 292-97 (1897)
43. United States v. Addyston Pipe & Steel Co., 85 F. 271, 273-75 (6th Cir. 1898), aff'd 175 U.S. 211 (1899).
44. In re Baby Food Antitrust Litig., 166 F.3d 112, 117 n.3 (3d Cir. 1999) ("The phrase 'concerted action' is often used as shorthand for any form of activity meeting the Section I 'contract... combination or conspiracy' requirement.").
45. Cf. Cass R. Sunstein, Problems with Rules, 83 CAL. L. REV. 953, 958 (1995) (defining casuistry as a process in which "judgments are based not on a preexisting rule, but on comparisons between the case at hand and other cases, especially those that are unambiguously within a generally accepted norm").
46. See Thomas A. Piraino, Jr., Regulating Oligopoly Conduct under the Antitrust Laws, 89 MINN. L. REV. 9 (2004).
47. Twombly, 127 S. Ct. at 1963.
48. Courts use other terms interchangeably. See, e.g., JTC Petroleum Co. v. Piasa Motor Fuels, Inc. 190 F.3d 775, 780 (7th Cir. 1999) ("oligopolist interdependence").
49. The Supreme Court in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993) equated "tacit collusion" with conscious parallelism, but this usage is not universal, as I explain further below.
50. See, e.g., EDWARD H. CHAMBERLIN, THE THEORY OF MONOPOLISTIC COMPETITION: A RE-ORIENTATION OF THE THEORY OF VALUE ch. 3 (6th ed. 1948).
51. Game theory reaches similar results. Alexis Jaquemin & Margaret E. Slade, Cartels, Collusion, and Horizontal Merger, in 1 HANDBOOK OF INDUSTRIAL ORGANIZATION 415, 441-50 (Richard Schmalensee & Robert Willig eds., 1989);
52. Stuart D. Gurrea & Bruce M. Owen, Coordinated Interaction and Clayton §7 Enforcement, 12 GEO. MASON L. REV. 89, 97 (2003) (game theory teaches that oligopolists can "recognize the possibility of outcomes above the competitive level and are able to implement them without any express agreement").
53. The gas station scenario is a commonly invoked illustration. See, e.g., Dennis W. Carlton, Robert H. Gertner & Andrew M. Rosenfield, Communication among Competitors: Game Theory and Antitrust, 5 GEO. MASON L. REV. 423, 428-29 (1997)
54. HERBERT HOVENKAMP, THE ANTITRUST ENTERPRISE: PRINCIPLE AND EXECUTION 128 (2005).
55. See also Donald F. Turner, The Definition of Agreement under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 HARV. L. REV. 655, 663-64 (1962) ("If there were an industry consisting of only two or three sellers, where the sellers were of identical size and had identical costs, where the products of the sellers were completely indistinguishable, where conditions of demand and supply were completely static, and where sellers and buyers were completely aware of all relevant facts - then the 'best' price for each seller would be precisely the same, would be known to be the same by all, and would be charged without hesitation in absolute certainty that the others would price likewise.").
56. See also William H. Page, Communication and Concerted Action 37 LOYOLA UNIV. CHI. L.J. 405, 411-12 (2007)
57. Piraino, supra note 17, at 19-20
58. George A. Hay, Facilitating Practices: The Ethyl Case (1984), in THE ANTITRUST REVOLUTION 183 (John E. Kwoka, Jr. & Lawrence J. White eds., 3d ed. 1999).
59. In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 654 (7th Cir. 2002) (Posner, J.) ("If a firm raises price in the expectation that its competitors will do likewise, and they do, the firm's behavior can be conceptualized as the offer of a unilateral contract that the offerees accept by raising their prices.").
60. Judge Posner recognized, however, that courts have not accepted this reasoning. Id. See also Alan Devlin, Note, A Proposed Solution to the Problem of Parallel Pricing in Oligopolistic Markets, 59 STAN. L. REV. 1111, 1121-22 (2007).
61. Donald F. Turner, The Definition of Agreement under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 HARV. L. REV. 655, 663 (1962).
62. Id. at 665.
63. See Id. at 669-70
64. see also JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 780 (7th Cir. 1999) (reasoning that it would be impractical to frame relief for tacit collusion)
65. Clamp-All Corp. v. Cast Iron Soil Pipe Inst., 851 F.2d 478, 484 (1st Cir. 1988) (same).
66. POSNER, supra note 12, at 94-98.
67. See John E. Lopatka & William H. Page, Posner's Program for the Antitrust Division: A Twenty-Five Year Perspective, 48 SMU L. REV. 1713, 1718-19 (1995).
68. Brooke Group, Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993).
69. See also JTC Petroleum, 190 F.3d at 780 (also equating tacit collusion with oligopolistic interdependence, and observing that no court has held it to be illegal under §1; some courts have held it to be legal; and some "treat the question as open") (citations omitted).
70. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
71. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (citation omitted).
72. Matsushita itself involved an alleged conspiracy to charge predatory prices, a highly improbable phenomenon. The result in Matsushita rested in part on the perception courts should not permit juries to infer too easily a conspiracy in such cases. For similar allegations, see In re Parcel Tanker Shipping Servs. Antitrust Litig., 541 F. Supp. 2d 487, 491-92 (D. Conn. 2008) (holding insufficient allegations that defendant tanker operators conspired to eliminate competitors by predatory pricing).
73. Nevertheless, the lower courts apply the same standard, even when the alleged conspiracy has a more plausible goal, like raising prices. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 571 n.35 (11th Cir. 1998).
74. See, e.g., Blomkest Fertilizer, Inc. v. Potash Corp. of Sask., 203 F.3d 1028, 1032-34 (8th Cir. 2000) (holding that the plaintiff "has the burden to present evidence of consciously paralleled pricing supplemented with one or more plus factors," and granting defendant summary judgment because plaintiff did not meet its burden)
75. Harcros, 158 F.3d at 571 n.35, 572 (describing plus factors as "necessary," and stating that plaintiff must show plus factors "tending to exclude the possibility of lawful action").
76. William E. Kovacic, The Identification and Proof of Horizontal Agreements under the Antitrust Laws, 38 ANTITRUST BULL. 5, 38-42 (1993)
77. Piraino, supra note 17, at 37.
78. Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537 (1954).
79. Id. at 541-42.
80. Id. (holding that evidence that the plaintiff would not be a successful first-run theater "raised fact issues requiring the trial judge to submit the issue of conspiracy to the jury").
81. Harcros, 158 F.3d at 570 n.33 (stating that an act is against a defendant's self-interest if "each defendant would have acted unreasonably in a business sense if it had engaged in the challenged conduct unless that defendant had received assurances from the other defendants that they would take the same action") (citation omitted).
82. Harcros, 158 F.3d at 571 n.35 (11th Cir. 1998).
83. In re Flat Glass Antitrust Litig., 385 F.3d 350, 360-61 (3d Cir. 2004) (observing that "evidence that the defendant acted contrary to its interests means evidence of conduct that would be irrational assuming that the defendant operated in a competitive market" and that this sort of evidence merely "restates interdependence")
84. Baby Food Antitrust Litigation, 166 F.3d 112, 135 (3d Cir.1999) (holding that "to prove conspiracy, evidence of action that is against self-interest or motivated by profit must go beyond mere interdependence [and] must be so unusual that in the absence of an advance agreement, no reasonable firm would have engaged in it").
85. Of course, the short-run profits may not be certain either. Cf. Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1311 (11th Cir. 2003) (observing that not matching a rival's price increase "likely would have resulted in little if any market share gain [and] would have minimized profits, given that lower prices generate smaller revenues").
86. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
87. The Court abandoned Conley's statement that a complaint should only be dismissed if "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
88. Twombly, 127 S. Ct. at 1965 ("an allegation of parallel conduct and a bare assertion of conspiracy will not suffice").
89. Id.
90. Id.
91. Id.
92. Id.
93. Id.
94. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007).
95. Id.
96. Id.
97. Id. at 1966 n.5.
98. Id. at 1965.
99. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 431 (2008) ("Notice pleading is dead.").
100. One court interpreted Twombly as "specifically abrogate[ing] the usual 'notice pleading' rule" of Fed. R. Civ. P. 8(a)(2) in antitrust cases. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 n.5 (9th Cir. 2008), and imposing a requirement that the plaintiff "plead not just ultimate facts (such as a conspiracy), but evidentiary facts which, if true, will prove" an agreement.
101. Id. at 1047.
102. If this latter distinction is correct, and not simply a confusion of terminology, Twombly will require greater specificity that code pleading, which requires pleading only of ultimate facts, not conclusions on the one hand or "evidential" facts on the other. CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 150 (2d ed. 1947).
103. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 n.4 (2007) (citing 6 Areeda & Hovenkamp ¶ ¶1425, at 167-85 (2d ed. 2003)).
104. Id. at. 1966 n.4 (citing Blechman, Conscious Parallelism, Signalling and Facilitating Devices: The Problem of Tacit Collusion under the Antitrust Laws, 24 N.Y.L. SCH. L. REV. 881, 899 (1979)).
105. Id. at 1966 n.4 (noting that the parties in Twombly agree on this point).
106. Id. at 1971.
107. Id.
108. Id.
109. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1972 (2007).
110. Id. at 1973 n.13.
111. Id. at 1969 n.8.
112. It wrote, for example, that "[a]sking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." Twombly at 1965. It added that "it is one thing to be cautious before dismissing an antitrust complaint in advance of discovery..., but quite another to forget that proceeding to antitrust discovery can be expensive. Id. at 1966-67.
113. It rejected the argument that "a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process," id. at 1967, because courts are incapable of limiting the costs of modern discovery.
114. But cf. City of Moundridge v. Exxon Mobil Corp., 250 F.R.D. 1, 5 (D.D.C. 2008) (holding that "a complaint need not be dismissed where it does not ['exclude the possibility of independent business act'").
115. The Ninth Circuit read Twombly as "abrogate[ing] the usual 'notice pleading' rule" because "discovery in antitrust cases frequently causes substantial expenditures and gives the plaintiff the opportunity to extort large settlements even where he does not have much of a case." Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 n.5 (9th Cir. 2008).
116. Twombly, 127 S. Ct. at 1966-67 (citations and internal quotation marks omitted).
117. Am. Tobacco Co. v. United States, 328 U.S. 781, 810 (1946).
118. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 (1984)
119. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3rd Cir.2004) (citations and internal quotations omitted).
120. United States v. Gen. Motors Corp., 384 U.S. 127, 142-43 (1966).
121. United States v. Paramount Pictures, Inc., 334 U.S. 131, 142 (1948) (noting that "[i]t is enough that a concert of action is contemplated and that the defendants conformed to the arrangement"). See also Theatre Enters., 346 U.S. at 540 (agreement may be "tacit or express").
122. Am. Tobacco Co. v. United States, 328 U.S. 781, 809-10 (1946) (adding that evidence of a violation "may be found in a course of dealings or other circumstances as well as in any exchange of words"). The Supreme Court has also stated that an agreement need not involve "letters, agreements, or other testimonials to a conspiracy." Norfolk Monument Co. v. Woodlawn Mem'l Gardens, Inc., 394 U.S. 700, 703-04 (1969).
123. Other scholars have observed this deficiency in the definition. See Jonathan B. Baker, Identifying Horizontal Price Fixing in the Electronic Marketplace, 65 ANTITRUST L.J. 41, 47 (1996)
124. Kovacic, supra note 32 at 24-25
125. Gregory J. Werden, Economic Evidence on the Existence of Collusion: Reconciling Antitrust Law With Oligopoly Theory, 71 ANTITRUST L.J. 719, 777-78 (2004).
126. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 n.4 (2007) (citing 6 Areeda & Hovenkamp ¶ ¶1425, at 167-85 (2d ed. 2003)).
127. Theatre Enters., 346 U.S. at 540.
128. In re Baby Food Antitrust Litig., 166 F.3d 112, 138 (3d Cir. 1999) ("We realize that [a concentrated market] could facilitate explicit or tacit price-fixing."); Town Sound & Custom Tops, Inc. v. Chrysler Motors Corp., 959 F.2d 468, at 494 n.40 (3d Cir. 1992 ("If the plaintiffs alleged actual or tacit collusion among automobile manufacturers with respect to standardization, that would be a serious antitrust concern.").
129. Brooke at 227 ("Tacit collusion, sometimes called oligopolistic price coordination or conscious parallelism, describes the process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions.").
130. See, e.g, JTC Petroleum Co. v. Piasa Motor Fuels, Inc. 190 F.3d 775, 780 (7th Cir. 1999) (equating tacit collusion with "oligopolistic interdependence").
131. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
132. Id.
133. Id. at 1966, quoting DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999) ("[T]erms like 'conspiracy,' or even 'agreement,' are border-line: They might well be sufficient in conjunction with a more specific allegation - for example, identifying a written agreement or even a basis for inferring a tacit agreement,... but a court is not required to accept such terms as a sufficient basis for a complaint"). But see In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d. 651, 644 (7th Cir. 2002) (Posner, J.) (observing that, although the language of Section 1 is "broad enough... to encompass a purely tacit agreement to fix prices," it is "generally believed" that "an agreement involving actual, verbalized communication, must be proved in order for a price-fixing conspiracy to be actionable under the Sherman Act").
134. Carlton et al., supra note 20, at 424.
135. Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 281-82 (4th Cir. 2002).
136. MICHAEL D. WHINSTON, LECTURES ON ANTITRUST ECONOMICS 20 (2006)
137. George J. Stigler, What Does an Economist Know?, 33 J. LEGAL EDUC. 311, 311-12 (1983). Economists do distinguish between cooperative and noncooperative equilibria, but a cooperative equilibrium requires that the parties have formed an enforceable contract.
138. DAVID M. KREPS, GAME THEORY AND ECONOMIC MODELLING 9 (1990). Because Sherman Act agreements are unenforceable, they must be "noncooperative" in this sense.
139. Page, supra note 20
140. William H. Page, Facilitating Practices and Concerted Action under Section 1 of the Sherman Act, in ANTITRUST LAW AND ECONOMICS (Keith Hylton ed., Edward Elgar Publishing, forthcoming 2009).
141. OLIVER BLACK, CONCEPTUAL FOUNDATIONS OF ANTITRUST (2005).
142. Id. at 185-87.
143. Id. at 187.
144. In a later article, Black added that, for a firm's action to constitute communication, it must: Be made with the intention of causing a rival (1) to believe the firm is acting in reliance on the rival's acting in a certain way, and (2) to believe this in part because it recognizes the firms' intention; moreover, the action must successfully cause the rival to believe the firm is acting in reliance on the rival's corresponding act, and the rival must believe this in part because it recognizes the firms' intentions. Oliver Black, Communication, Concerted Practices, and the Oligopoly Problem, 1 EUR. COMPETITION J. 341, 342-46 (October 2005).
145. Cf. George H. Hay, The Meaning of "Agreement" under the Sherman Act: Thoughts from the Facilitating Practices Experience, 16 REV. INDUS. ORG. 113, 128 (2000) ("[I]f there is to be a category of unlawful tacit collusion which is to be distinguished from classic oligopoly, the difference must lie, not in the state of mind of the competitors, but on the specific elements of behavior that brought about the state of mind.").
146. Blomkest Fertilizer, Inc. v. Potash Corp. of Sask., 203 F.3d 1028, 1042 (8th Cir. 2000) (dissenting opinion).
147. Jaquemin & Slade, supra note 19, at 447-48
148. WHINSTON, supra note 80, at 46.
149. Jonathan B. Baker, Identifying Horizontal Price Fixing in the Electronic Marketplace, 65 ANTITRUST L.J. 41, 48 (1996)
150. Kenneth G. Elzinga, New Developments on the Cartel Front, 29 ANTITRUST BULL. 3, 25 (1984)
151. XAVIER VIVES, OLIGOPOLY PRICING: OLD IDEAS AND NEW TOOLS 320 (MIT Press 1999)
152. Werden, supra note 69, at 763
153. WHINSTON, supra note 80, at 321.
154. See Christopher R. Leslie, Trust, Distrust, and Antitrust, 82 TEX. L. REV. 515, 580 (2004).
155. Leslie adds that communication is also necessary to "build[ ] trust" in the representations cartel members make to each other. Id. He also summarizes the results of economic experiments that tend to show that communication is necessary for effective cooperation.
156. Id. at 538-29.
157. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1971 n.12 (2007).
158. United States v. Container Corp., 393 U.S. 333, 335 (1969).
159. Id. at 335 n.2.
160. Am. Tobacco Co. v. United States, 328 U.S. 781, 809-10 (1946).
161. E. States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600 (1914).
162. Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939).
163. See, e.g., FTC v. Cement Inst., 333 U.S. 683 (1948).
164. Id. at 714 (citing evidence of boycotts against "dealers who persisted in selling foreign cement" and efforts by Institute officials to "securing pledges by producers not to permit sales f.o.b. mill to purchasers who furnished their own trucks, a practice regarded as seriously disruptive of the entire delivered price structure of the industry"). The Court also pointed unexplained, precisely identical bids by numerous rivals. Id. at 713, n.15.
165. Id. at 809-10. The court may have meant only that it was reasonable to infer from the pattern of price changes that an agreement involving an exchange of words actually occurred, even if there was no specific evidence of an exchange of words. But many scholars at the time quite understandably read the court as defining conspiracy broadly to include coordination that did not involve an exchange of words. See Werden, supra note 69, at 742 n.100 (collecting sources).
166. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 n.4 (2007).
167. Page, supra note 20, at 446-59.
168. See, e.g., In re Baby Food Antitrust Litig., 166 F.3d 112, 137 (3d Cir. 1999) (affirming summary judgment for the defendants where the plaintiffs had produced evidence of parallel pricing, but "no evidence... showing that, during the alleged 17-year conspiratorial period, any executive of any of the defendants with pricefixing authority communicated with executives of the other defendants, either by writing, telephone or meeting").
169. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 n.4 (2007).
170. City of Moundridge v. Exxon Mobil Corp., 250 F.R.D. 1 (D.D.C. 2008)
171. In re Pressure Sensitive Labelstock Antitrust Litig., No. 3:03-Mdl-1556, 2008 WL 2563358 (M.D. Pa. June 24, 2008).
172. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1048 (9th Cir. 2008) (affirming the dismissal of a complaint that alleged that member banks of a credit card company conspired by following the bank-to-bank credit card interchange fees set by the company)
173. In re Elevator Antitrust Litig., 502 F.3d 47, 50-52 (2d Cir. 2007) affirming dismissal of a complaint that generally alleged parallel actions (pricing and contractual language) and anticompetitive misconduct in Europe).
174. See, e.g., Int'l Norcent Tech. v. Koninklijke Philips Elecs. N.V., No. CV 07-00043 MMM (SSx), 2007 WL 4976364 at *10-11 (C.D. Cal. Oct. 29, 2007) (dismissing a complaint alleging that a DVD consortium agreed not to manufacture noncompliant video disk players and threatened licensees who did manufacture them)
175. Parker v. Learn the Skills Corp., 530 F. Supp. 2d 661, 675-76 (D. Del. 2008) (dismissing a complaint alleging the defendants conspired to post of a disparaging document on a web forum).
176. See, e.g., America Channel, LLC v. Time Warner Cable, Inc. Civil No. 06-2175 (DWF/SRN), 2007 WL 1892227, at *4 (D. Minn. June 28, 2007) (dismissing complaint alleging that cable system operators "'simultaneously engaged in persistent and extensive discrimination against independent programming networks' in favor of their own affiliates" because it was in defendants' "economic interest to promote their own affiliated networks")
177. Hackman v. Dickerson Realtors, Inc., 520 F. Supp. 2d 954, 968 (N.D. Ill. 2007) (dismissing counts that "conclusorily allege[d] an agreement... between certain defendants to boycott him, but present[ed] no evidence of an agreement other than evidence of parallel conduct... as well as allegations that would create a motivation for defendants to boycott him (he was undercutting them on commissions and lowering their bottom line)")
178. Arista Records LLC v. Lime Group LLC, 532 F. Supp. 2d 556, 577-79 (S.D.N.Y. 2007) (dismissing peer-to-peer digital music distribution company's claim that record companies conspired to require licensors of their "hashes" (i.e. identifying data) in their music files to obtain a license to an Altnet's patented hash-based filtering technology, because each record company had an independent motive to avoid patent litigation)
179. Wellnx Life Scis., Inc. v. Iovate Health Scis. Research, Inc., 516 F. Supp. 2d 270, 291 (S.D.N.Y. 2007) (holding that alleged parallel refusals by publishers, in response to a proposal by one advertiser, not to accept advertisements from the plaintiff advertiser did not raise an inference of a horizontal agreement, because each was provided with a substantial incentive to agree with the proposal).
180. Schafer v. State Farm Fire & Cas. Co., 507 F. Supp. 2d 587, 596-97 (E.D. La. 2007) (dismissing home owners' claim that insurance companies colluded in the use of claims estimation software that priced home repairs below the market value; each insurance company had an independent motive to use the software to reduce estimates of repair costs).
181. Id.
182. See, e.g., In re Late Fee & Over-Limit Litig., 528 F. Supp. 2d 953, 963 & 965 (N.D. Cal. 2007) (holding that defendants' alleged changes in credit card late fees were consistent with rational, consciously parallel responses to market conditions and regulatory actions).
183. In re Travel Agent Comm'n Antitrust Litig., No. 1:03 CV 30000, 2007 WL 3171675, at *10 (N.D. Ohio Oct. 29, 2007).
184. Because the plaintiff relied on the deposition in the complaint, the court treated it as part of the complaint, and not as evidence, which would have required conversion of the motion to dismiss into one for summary judgment under Fed. R. Civ. P. 12(d). Tr avel Agent, 2007 WL 3171675, at *8. Notice also that the plaintiff 's reliance on the deposition demonstrates that the plaintiff had access to significant discovery before framing the complaint, a point I discuss more fully in the next section.
185. Id.
186. Id.
187. In re Digital Music Antitrust Litig., No. 1780, 2008 WL 4531821, at *7 (S.D.N.Y. Oct. 9, 2008).
188. In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1014 (N.D. Cal. 2007) (dismissing claim that graphics processing unit producers conspired to coordinate product pricing and release schedules where the factual allegations did not show that the parallel conduct was "lockstep" or "historically unprecedented").
189. Id. at 1022-23.
190. Id. at 1022.
191. In re Pressure Sensitive Labelstock Antitrust Litig., No. 3:03-MDL-1556, 2008 WL 2563358 (M.D. Pa. June 24, 2008). Another questionable decision is City of Moundridge v. Exxon Mobil Corp., 250 F.R.D. 1 (D.D.C. 2008), which upheld a complaint that alleged a conspiracy to fix natural gas prices. The court cited only allegations "that the natural gas total resource base had not decreased, that the prices had risen and never fallen below an agreed-upon price, that the defendants had reported high profits,... and that Hurricanes Katrina and Rita should not have affected the market as the defendants claimed and they were only a pretextual reason to justify withholding market supply to create an artificial shortage." Id. at 4.
192. The court conceded that the claim "may rest on a thin factual reed" (id. at 5) and that its result "was by no means foreordained," because of the ambiguities in the Twombly standard.
193. Id. at 6 n.5.
194. Labelstock, 2008 WL 2563358, at *6.
195. Id.
196. Id.
197. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007).
198. See also Hackman v. Dickerson Realtors, Inc., 520 F. Supp. 2d 954, 958, 968 (N.D. Ill. 2007) (holding insufficient a complaint that "conclusorily allege[d] an agreement, at an unspecified time, between certain defendants to boycott [the plaintiff], but present[ed] no evidence of an agreement other than evidence of parallel conduct" and a motive to boycott).
199. Twombly, 127 S. Ct. at 1971 n.12.
200. In re Elevator, 502 F.3d at 51 n.5 (holding insufficient allegations that defendants "(a) [p]articipated in meetings in the United States and Europe to discuss pricing and market divisions; (b) [a]greed to fix prices for elevators and services; (c) [r]igged bids for sales and maintenance; (d) [e]xchanged price quotes; (e) [a]llocated markets for sales and maintenance; (f) '[c]ollusively' required customers to enter long-term maintenance contracts; and (g) [c]ollectively took actions to drive independent repair companies out of business")
201. In re Parcel Tanker Shipping Servs. Antitrust Litig., 541 F. Supp. 2d 487, 489, 491 (D. Conn. 2008) (holding insufficient allegations that rivals held "a series of clandestine meetings" in which they conspired to allocate markets and rig bids)
202. In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1013-14 (N.D. Cal. 2007) (dismissing a complaint that alleged, among other things, that GPU producers "held a series of secret meetings and communications during which they agreed to... fix prices and coordinate the release of new products")
203. America Channel, LLC v. Time Warner Cable, Inc. Civil No. 06-2175 (DWF/SRN), 2007 WL 1892227, at *5 (D. Minn. June 28, 2007) (holding insufficient an allegation that "[o]n information and belief, this abrupt change of position by Adelphia resulted from instructions from defendants, at the time potential bidders for Adelphia, that Adelphia should not deal with" the plaintiff).
204. In re Travel Agent Comm'n Antitrust Litig., 2007 U.S. Dist. LEXIS 79918, No. 1561, at *1 (N.D. Ohio Oct. 29, 2007) (holding insufficient allegations that "[d]efendants met frequently during the period" of parallel conduct)
205. America Channel, LLC v. Time Warner Cable, Inc. Civil No. 06-2175 (DWF/SRN), 2007 WL 1892227, at *5 (D. Minn. June 28, 2007) (holding insufficient plaintiff's allegations of defendants' "history of close cooperation and statements allegedly made at a public event in 2006 and opportunities to conspire, along with its allegations of parallel conduct").
206. Graphics Processing, 527 F. Supp. 2d at 1023 ("Attendance at industry trade shows and events is presumed legitimate and is not a basis from which to infer a conspiracy, without more.") (citations omitted)
207. In re Late Fee & Over-Limit Litig., 528 F. Supp. 2d 953, 963 (N.D. Cal. 2007) (dismissing credit cardholders' claim that issuers fixed prices; general opportunities to communicate and parallel pricing did not plausibly suggest a conspiracy)
208. Schafer v. State Farm Fire & Cas. Co., 507 F. Supp. 2d 587, 597 n.33 (E.D. La. 2007) (holding that plaintiffs' allegations that defendant "insurance companies have actively coordinated their actions through various organizations and associations" were insufficient to raise and inference of conspiracy)
209. Travel Agent, 2007 WL 3171675, at *9 (holding that allegations defendants "met frequently during the period when the cuts and caps were allegedly negotiated" and "had the opportunity to conspire at private meetings...; through industry associations...; at trade sho[w]s...; through jointly formed business ventures...; and while playing golf" did not "suggest that there was an agreement to reduce commissions").
210. Graphics Processing, 527 F. Supp. 2d at 1023. But see Labelstock, 2008 WL 2563358 at *7 (holding sufficient allegations that the defendants "held direct discussions about the need to collaborate on price increases during the October, 2000, conference of the Tag & Label Manufacturers Institute" then one month later raised prices in quick succession).
211. In re Digital Music Antitrust Litig., No. 1780, 2008 WL 4531821, at *7 (S.D.N.Y. Oct. 9, 2008) (dismissing a complaint alleging that the defendants' "creation of and participation in [unchallenged] joint ventures makes plausible the inference that their subsequent parallel conduct was the result of an agreement" because it is "unwarranted to draw a negative inference from allegations involving the unchallenged collaboration")
212. Int'l Norcent Tech. v. Koninklijke Philips Elecs. N.V., No. CV 07-00043 MMM (SSx), 2007 WL 4976364 (C.D. Cal. Oct. 29, 2007), at *10-11 (dismissing complaint alleging that firms formed a consortium to develop a DVD standard and engaged in exclusionary practices; the consortium was not intrinsically anticompetitive, and allegations of anticompetitive practices were not supported by sufficient allegations to make them plausible).
213. One case involved admitted agreements that defendants contended were mischaracterized as horizontal divisions of markets. In Behrend v. Comcast Corp., 532 F. Supp. 2d 735 (E.D. Pa. 2007), the complaint alleged that Comcast entered into "swap agreements" with other cable companies under which "Comcast received competitors' cable systems and cable subscribers in [certain cities'] cable markets in exchange for Comcast's cable systems and cable subscribers in other parts of the country."
214. Id. at 739. The court held the complaint sufficient, because "a horizontal division of markets... is a plausible inference from Comcast's conduct in entering into them."
215. Id. at 741.
216. Stein, supra note 8, at 6, citing Behrend, among other cases, argues that "[a]lleging a specific pre-existing relationship between defendants can greatly improve the chances that a court will find a plausible conspiracy." I would suggest that the existence of such a relationship is relevant if, as in Behrend, there is a plausible basis for characterizing the arrangement as part of the anticompetitive scheme.
217. Other possible examples that Stein cites are Dahl v. Bain Capital Partners, LLC, No. 07-12388, 2008 WL 520699 (D. Mass. Dec. 15, 2008) (upholding a complaint that alleged that private equity firms had colluded in purchases of companies in leveraged buyouts; the court distinguished Twombly by citing the firms' overlapping participation in nine specifically transactions)
218. and Fair Isaac Corp. v. Equifax Inc., No. 06-4112, 2008 WL 623120 (D. Minn. Mar. 4, 2008) (upholding a complaint that alleged " a close temporal proximity between the Credit Bureaus' agreement to jointly create, own, and control VantageScore, and the beginning of the alleged parallel price manipulation and denial of access to the Credit Bureaus' data"). On the other hand, if, as in Digital Music, the pre-existing arrangement is benign (or is viewed as such by the court), the communications associated with them will not be probative of any separate illegal arrangement.
219. Hackman v. Dickerson Realtors, Inc., 520 F. Supp. 2d 954, 964-65 (N.D. Ill. 2007) (dismissing claim that an association of realtors encouraged other defendant realtors to lock plaintiff out of the local market; encouragement, absent an actual agreement, is insufficient for a §1 claim).
220. Travel Agent, 2007 WL 3171675, at *11 (holding that "the availability of Defendants' commission rates for all to see [was not] possible evidence of a conspiracy").
221. Werden, supra note 69, at 765. Competitors may communicate in prohibited ways indirectly and even without words, but not simply by "taking, or publicizing, marketplace actions such as the building of capacity, the production of output, or the charging of particular prices."
222. Id.
223. In re OSB Antitrust Litig., No. 06-826, 2007 WL 2253419 (E.D. Pa. Aug. 3, 2007).
224. Id. at *3.
225. Id.
226. Id.
227. Id.
228. Id. at *4.
229. Id. at *5.
230. BLACK, supra note 82, at 161.
231. Confre Cellars, Inc. v. Robinson, No. Civ.A. 01-N-1060, 2002 WL 32376945, at *15 (D. Colo. Mar 6, 2002).
232. Id.
233. In re Elevator, 502 F.3d at 50.
234. In re Parcel Tanker Shipping Servs. Antitrust Litig., 541 F. Supp. 2d 487, 492 (D. Conn. 2008) ("Although the complaint repeatedly refers to these alleged 'clandestine meetings' among certain defendants, it states no specific examples of the defendants' conduct in the meetings, other than general allegations of conspiracy.")
235. But cf. In re Static Random Access Memory (SRAM) Antitrust Litig., No. M:07-cv-01819 CW, 2008 WL 426522, at *6 (N.D.Cal.) (N.D. Cal. Feb. 14, 2008) (holding that allegations of "participation in various trade organizations... cannot alone support Plaintiffs' claims, but such participation demonstrates how and when Defendants had opportunities to exchange information or make agreements" and thus support other allegations of specific exchanges of information)
236. Graphics Processing, 527 F. Supp. 2d at 1020 (observing that "allegations of meetings at trade shows that detailed who was present at the meetings and how they were involved in fixing prices were sufficient to allege a conspiracy when coupled with parallel pricing") (citing In re Rubber Chems. Antitrust Litig., 504 F. Supp. 2d 777, 790 (N.D. Cal. 2007)).
237. Graphics Processing, 527 F. Supp. 2d at 1024.
238. See also Hackman v. Dickerson Realtors, Inc., 557 F. Supp. 2d 938, 944 (N.D. Ill. 2008) (holding that, even though the complaint did not allege that a particular defendant was at the meeting at which the boycott agreement was formed or that she had "explicitly agreed to the agency boycott," it was sufficient that the complaint alleged that she was aware of the boycott and to a specific act in furtherance of it).
239. For further discussion of the sufficiency of allegations to connect a particular defendant to a conspiracy, see Stein, supra note 8, at 11-13.
240. Labelstock, 2008 WL 2563358 at *7.
241. See also In re Rail Freight Fuel Surcharge Antitrust Litig., No. 07-489, 2008 WL 4831214, at *6 (D.D.C. Nov. 7, 2008) (upholding a complaint alleging "who initiated the discussions..., what they proposed, the object of the alleged conspiracy, the fact that an agreement was reached among all four defendants, and where and when the agreement was reached," particularly where the meetings immediately preceded the imposition of the alleged surcharges).
242. In re Static Random Access Memory (SRAM) Antitrust Litig., No. M:07-cv-01819 CW, 2008 WL 426522 (N.D. Cal.) (N.D. Cal. Feb. 14, 2008) ( plaintiffs sufficiently alleged conspiracy by referencing communications between manufacturers in the form of e-mails that shared price and product line information).
243. SRAM, 2008 WL 426522, at *6.
244. Id. at *5.
245. Id. at *4.
246. Id. at *4.
247. See also id., at *6 (holding that guilty pleas in a government case involving DRAM (dynamic random access memory) were "not sufficient to support Plaintiffs' claims standing on their own [but did] support an inference of a conspiracy in the SRAM (static RAM) industry" because plaintiffs alleged "the same actors associated with certain Defendants were responsible for marketing both SRAM and DRAM")
248. In re Elevator Antitrust Litig., 502 F.3d 47, 52 (2d Cir. 2007) ("Allegations of anticompetitive wrongdoing in Europe- absent any evidence of linkage between such foreign conduct and conduct here - is merely to suggest (in defendants' words) that 'if it happened there, it could have happened here.'").
249. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1983 (2007) 1983 (quoting Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)).
250. Id. at 1975 (Stevens, J., dissenting). He added that "[u]nder the relaxed pleading standards of the Federal Rules, the idea was not to keep litigants out of court but rather to keep them in. The merits of a claim would be sorted out during a flexible pretrial process and, as appropriate through the crucible of trial."
251. Id. at 1976.
252. Commentators make the same assumption. Ettie Ward, The After-Shocks of Twombly: Will We "Notice" Pleading Changes, 82 ST. JOHN'S L. REV. 893, 912 (2008) ("A Rule 12(b)(6) dismissal permits defendants to avoid the discovery process entirely.")
253. Richard A. Epstein, Bell Atlantic v. Twombly: How Motions To Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. & POL'Y 61, 63 (2007) ("[T]he basic position [of the drafters of the Federal Rules] was that all the legal questions going to the sufficiency of the complaint could be decided on a motion on the pleadings before discovery, but that motions to defeat the claim on factual issues could be made only by a motion for summary judgment after discovery had been conducted....").
254. See also In re Travel Agent Comm'n Antitrust Litig., No. 1:03 CV 30000, 2007 WL 3171675, at *8, *10 (N.D. Ohio Oct. 29, 2007) (referring to a deposition of an executive of a defendant airline that was quoted in the complaint, and treating the deposition as part of the complaint for purposes of a motion to dismiss)
255. Int'l Audiotext v. AT&T, 62 F.3d 69, 70 (2d Cir. 1995) (affirming the trial court's grant of a motion to dismiss for failure to state a claim following "limited pre-answer discovery conducted pursuant to a stipulation and order").
256. In re Pressure Sensitive Labelstock Antitrust Litig., No. 3:03-Mdl-1556, 2008 WL 2563358 *9 (M.D. Pa. June 24, 2008) (referring to an email "apparently produced during discovery regarding class certification" that became the basis for a key allegation of direct communications involving one of the defendants).
257. In re Static Random Access Memory (SRAM) Antitrust Litig., No. M:07-cv-01819 CW, 2008 WL 426522 (N.D.Cal.), at *42-49 (N.D. Cal. Feb. 14, 2008) (reciting that the court had "entered a supplemental case management order, limiting discovery to the documents already being provided to the Department of Justice for purposes of the grand jury investigation, postponing initial disclosures and deeming all documents already produced in the DRAM litigation to be produced in this case").
258. Graphics Processing, 527 F. Supp. 2d, at 1018 (motion to stay discovery filed at initial case management conference following MDL transfer; order staying discovery entered a month later).
259. Fed. R. Civ. P. 26(d)(1) provides that "[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except... when authorized by these rules, by stipulation, or by court order." Rule 26(f)(1) requires the Rule 26(f) meeting of parties to be held at least 21 days before the scheduling conference or order under Rule 16(b), which must occur, under Rule 16(b)(2), "as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared." Under these time limits, discovery may well begin while a motion to dismiss for failure to state a claim is pending.
260. See Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) ("Had the Federal Rules contemplated that a motion to dismiss under Fed.R.Civ.P. 12(b) (6) would stay discovery, the Rules would contain a provision to that effect.").
261. Glazer's Whol. Drug. Co. v. Klein Foods, Inc., No. 3-08-CV-0774-L, 2008 WL 2930482, at *1 (N.D. Tex. July 23, 2008) (holding that the "district court has discretion to stay discovery 'for good cause shown,'" but doing so is "the exception rather than the rule") (citations omitted).
262. That statute provides "[i]n any private action arising under this chapter, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party." 15 U.S.C. §78u-4(b)(3)(B).
263. See H.R. Conf. Rep. No. 104-369, at 37 (1995), reprinted in 1995 U.S.C.C.A.N. 730, 736 (stating that the purpose of the provision is "to minimize the incentives for plaintiffs to file frivolous securities class actions in the hope either that corporate defendants will settle those actions rather than bear the high cost of discovery").
264. See also Hillary Sale, Heightened Pleading and Discovery Stays: An Analysis of The Effect of the PSLRA's Internal-Information Standard on '33 and '34 Act Claims, 76 WASH. UNIV. L. Q. 537, 594-95 (1998) (arguing that the statute dooms valid claims by requiring plaintiffs to "plead internal company information" yet staying discovery, proposing "that Congress correct this problem by repealing the stay of discovery and instead adopting managerial judge provisions to process such claims").
265. F.3d 1042 (9th Cir. 2008). The court added that the plaintiffs "did not depose any representatives of the Banks, nor [did] they contend on appeal they needed further discovery to plead their case."
266. Id. at 1046.
267. Id. at 1048.
268. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007).
269. Id. at 1965.
270. Twombly, 127 S. Ct. at 1967, n.6 (citing Frank Easterbrook, Discovery as Abuse, 69 B.U. L. REV. 635, 638-39 (1989)).
271. Cf. William Kolasky, Reinvigorating Antitrust Enforcement in the United States: A Proposal, ANTITRUST, 85, 86 (Spring 2008) (observing that "most judges manage discovery more effectively than the Supreme Court seems to acknowledge").