In 2007, the Supreme Court decided Bell Atlantic v. Twombly, a once-controversial opinion that now needs no introduction. Twombly, as antitrust practitioners well know, represented a seismic shift in the way antitrust cases were being pleaded, specifically requiring that an antitrust plaintiff plead enough "fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." (Fair enough.) Two years later, the Supreme Court clarified Twombly's broader application in Ashcroft v. Iqbal, holding that it was not limited to antitrust claims, but to all civil actions. (Simple enough.)

However, in recent years, practitioners have questioned the proper application and reach of Twombly. More specifically, it is indisputable that one of the original intents of Twombly was to minimize costs related to frivolous claims, but some question whether, in the name of Twombly, courts are now the ones spending too much time and resources—only to dismiss potentially viable claims. For example, in Big Baboon v. SAP America, a district court in California recently contemplated whether "you get to the point where we're wasting time and resources" when we "know what their claim is," and cautioned that courts shouldn't get "hung up" during the pleading stages due to Twombly. As others have expressed similar views, it is perhaps worth looking back at the landmark decision (which has been cited over 200,000 times since 2007), and asking whether there have, indeed, been some "hang-ups."

As even first-year law students know, the general pleading standard is governed by Rule 8(a) of the Federal Rules of Civil Procedure, which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." For decades, antitrust defendants called for a stricter pleading standard, cautioning that frivolous antitrust complaints imposed significant costs on defendants, and even forced some into early settlements based on an analysis of defense costs, rather than the merits of the case itself. The Supreme Court seemed to address these concerns with Twombly, explaining 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."

The Court held that allegations at the pleadings stage must plausibly suggest an unlawful agreement, reflecting the "threshold requirement of Rule 8(a)(2) that the complaint's 'plain statement' possess[es] enough heft to 'show that the pleader is entitled to relief.'" While the Court discarded the idea that it was creating a heightened pleading standard for antitrust claims, and noted that it was not concerned with the specificity of the complaint, but rather with the plausibility of the claim itself, it was clear that an antitrust plaintiff could no longer survive a motion to dismiss relying on parallel conduct alone.

What perhaps wasn't so clear was how to properly analyze the "adequacy of the claim" and, consequentially, some courts have struggled with the proper application of the Twombly standard. It is, therefore, not surprising that inconsistent rulings on factually similar complaints plague the profession.

Some courts have even warned against using Twombly to apply a standard closer to that reserved for summary judgment. For example, in 2010, the Seventh Circuit acknowledged that "the contours of the Supreme Court's ruling [in Twombly], and particularly its application in the [antitrust] context, remain unclear," but at the complaint stage "the test for whether to dismiss a case … turns on the complaint's 'plausibility.'" In 2012, the Second Circuit clarified the proper application of Twombly's plausibility requirement, explaining that "[t]he question at the pleading stage is not whether there is a plausible alternative to the plaintiff's theory; the question is whether there are sufficient factual allegations to make the complaint's claim plausible."

In 2013, in Evergreen Partnering Group v. Pactiv, the First Circuit acknowledged the ongoing "considerable confusion" still being generated by Twombly, and emphasized that "heightened pleading requirements at the earliest stages of litigation would frustrate the purpose of antitrust legislation and the policies informing it." The court further noted that the "slow influx of unreasonably high pleading requirements at the earliest stages of antitrust litigation has in part resulted from citations to case law evaluating antitrust claims at the summary judgment and post-trial stages." Two years later, the Fourth Circuit agreed in SD3 v. Black & Decker that "[p]ost-Twombly appellate courts have often been called upon to correct district courts that mistakenly engaged in this sort of premature weighing exercise in antitrust cases." Moreover, that court explicitly cautioned that "courts must be careful not to import the summary-judgment standard into the motion-to-dismiss stage."

As Twombly approaches its 12th anniversary, the inconsistency surrounding it still leaves antitrust litigants struggling to understand its bounds. More importantly, where courts undertake a level of economic and factual analysis beyond which has been historically exercised at the pleading stage, one must wonder… at what expense? Such rigorous analysis at an early stage arguably runs contrary to Rule 8(a), especially because defendants are in possession of the facts underlying the claims and a plaintiff drafts the complaint without the benefit of discovery. Yet it remains equally important that courts continue to act as a gatekeeper barring frivolous claims, while allowing viable ones to pass. Twombly should, in theory, represent this balance, but the outcome of every individual case rests in the fateful hands of our federal courts.

Meegan Hollywood is a principal and Nahid Shaikh is an associate in Robins Kaplan's antitrust and trade regulation group. They prosecute antitrust actions involving price-fixing, unlawful monopolization, and other anti-competitive practices.