June 28, 2012 Articles

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

The future of bundling claims is in limbo.

By Bradley C. Weber and Ellen Miers Peeples

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.

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