The Roberts Court on Antitrust

These broad pronouncements overstate the similarities among the cases, which arose in a wide range of industries and raised quite different legal issues. Bell Atlantic v. Twombly was a suit by local telephone and Internet service subscribers against major providers of those services; it addressed the pleading standard a complaint must meet to avoid dismissal of a Sherman Act conspiracy claim. In Leegin Creative Leather Products v. PSKS, a women's apparel store's lawsuit against a maker of high-end leather accessories, the Court considered whether a manufacturer's setting of a minimum resale price for its goods is per se illegal or requires a more extensive consideration of competitive effects to assess liability. In Credit Suisse Securities v. Billing, a group of investors alleged major investment banks that underwrote Initial Public Offerings had conspired to extract high fees and other terms from IPO investors; the question was whether the securities laws preempted antirust claims based on this conduct. Finally, in Weyerhaeuser v. Ross-Simmons Hardwood Lumber, a sawmill operator claimed a competitor bid up the price of saw logs to drive competitors out of business; at issue was the proper test for determining when so-called 'predatory buying' violates the Sherman Act.

Despite the obvious differences among these cases, together they reveal that the current Court will take a very practical approach to antitrust cases; is concerned that bright-line tests will stifle business practices that a full review of competitive effects would prove pro-consumer; is interested in whether pervasive regulation of business activity under other federal laws should preclude antitrust challenges to the same conduct; and believes trial courts must separate the wheat from the chaff at the motion to dismiss stage, given the extraordinary expense and burden of today's electronic discovery in antitrust litigation.