Anatomy of an Antitrust Case: Drafting and Responding to Complaints

The Civil Practice Procedure Committee has summarized some highlights from the Committee’s recent January 31, 2022 panel discussion on drafting and responding to antitrust complaints. Thank you to our panelists, for the practical tips and pointers!

I.  How is an antitrust complaint unique? What makes a strong complaint?

•  Antitrust cases involve economic analysis and many technical concepts, but plaintiffs need a central elevator pitch about what went wrong and who was harmed in the complaint; you need to tell a story.
• You also need to look around corners when you’re drafting the complaint (e.g., consider class certification issues)—think about your case as a whole, even in the very beginning stages.
• Think about the case law in the court where you’re going to file, and how much experience the judges in that district have with antitrust issues—e.g., some judges are very experienced; in other districts, you have to do more to educate the judge and explain why you have a strong case.
• From the plaintiff’s perspective, the case starts far before the complaint is filed—there’s an investigation phase that is critical to understanding whether you have a strong case.

II.  What do you do when you get a complaint?

• Pull everything that is cited in the case and look for anything that has been taken out of context, is misleading, or contradicts what has been cited and undermines the plaintiff’s credibility with the court.
• Dig into what was happening during the relevant alleged time period and before that time; critical to understand market conditions and alternative explanations to counter the plaintiff’s theory.

 III.  Motions to Dismiss

• From the defense perspective, complaints that tell compelling stories are the hardest to defeat; when there’s a compelling narrative, a judge is much more hesitant to toss the case—the strongest motions to dismiss tell a counter-narrative. It is important to tell your side as best you can within motion-to-dismiss parameters.
• Look at earlier versions of the complaint for facts that have changed along the way and what hasn’t been pleaded. Don’t try to refute every point; highlight 2-3 omissions or misleading statements instead. If you try to combat everything, the judge may start to think the motion to dismiss sounds more like a motion for summary judgment and may let the case go to discovery.
• Even if you can’t use the facts on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, make sure you know the facts. Ensure that outside counsel is educated about your industry to understand how the business people are thinking about the topics at issue in the complaint.
• Avoid the kitchen sink approach: use the fact section to tell your story, but highlight your strongest legal arguments; don’t argue everything.
• If plaintiff has included data on price trends, etc., look for easy ways to undermine (source, time period, doesn’t match allegations, etc.).

IV.  Other Observations

• Applying traditional case law in technology cases is challenging because the traditional way to plead a case involves alleged price increases; attorneys are experimenting with different ways to plead consumer harm (reduced choice, consumer dissatisfaction/harm to quality) and courts are taking longer to rule on these cases.
• Pre-motion-to-dismiss discovery can change the course of an entire case—it is easier to get when there is a Department of Justice (DOJ) investigation or something that is readily available and packaged (just upload and hit send), but we are seeing courts allow for more discovery in certain instances.

The second panel in the CPPC’s four-part series entitled Anatomy of an Antitrust Case will cover e-discovery tips and trends. Don’t forget to sign up for the next session!