Section 2 Bundling Claims: Plaintiffs Be Scared, or Bundlers Beware?

The Supreme Court’s 2007 opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), considered a Rule 12(b)(6) motion to dismiss in an antitrust case where the plaintiff alleged an illegal conspiracy under section 1 of the Sherman Act. The Court defined the narrow question before it as “whether a §1 complaint can survive a motion to dismiss when it alleges that [the defendants] engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting agreement, as distinct from identical, independent action.” Id. at 548–49. In a 7–2 decision, the majority in Twombly held that the district court properly dismissed the complaint.