Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Supreme Court Asked to Consider Appropriate Analysis for Determining Plausibility of Conspiracy Allegations, (Apr 30, 2013)

By Jeffrey May, J.D.

The U.S. Supreme Court has been asked to review a decision of the U.S. Court of Appeals in Richmond, Virginia, affirming dismissal of antitrust claims against GXS, Inc., the operator of a secure, private business-to-business data network, over which electronic data interchange (EDI) messages are sent. A "small, but disruptive player in the EDI market" (Loren Data Corporation), which unsuccessfully alleged that market leader GXS's refusal to provide it a "peer interconnect" to the GXS network violated the antitrust laws, filed a petition for certiorari on April 23 (Loren Data Corp. v. GXS, Inc., Dkt. 12-1273).

In a December 26, 2012, decision (2012-2 Trade Cases ¶78,203), the appellate court ruled that Loren Data had not set forth "any" plausible facts suggesting concerted conduct on the part of GXS and other competitors in the industry. GXS's alleged boycott activity was consistent with unilateral conduct, in the court's view.

Loren Data questions in its petition for review whether courts, faced with a motion to dismiss, are permitted to weigh competing, reasonable inferences arising from the complaint's well-pleaded facts. Loren Data contends that there is a split among the circuits whether such a review is permissible under the "plausibility standard" announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 2007-1 Trade Cases ¶75,709.

According to Loren Data, the "weighing of inferences" approach creates a stricter pleading standard that places the impermissible burden on plaintiffs anticipating and negating adverse inferences which may be drawn from the facts alleged in support of their claims. The company calls upon the Court to harmonize the approaches taken by courts engaged in Twombly plausibility analysis.

Attorneys: Bjorn E. Brunvand (Bjorn E. Brunvand, P.A.) for petitioner Loren Data Corp.

Companies: GXS, Inc.; Loren Data Corp.

News: Antitrust