Twombly v. Bell Atlantic Corp., Docket No. 03-9213.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSack
Citation425 F.3d 99
Decision Date03 October 2005
Docket NumberDocket No. 03-9213.
PartiesWilliam TWOMBLY, individually and on behalf of all others similarly situated and Lawrence Marcus, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BELL ATLANTIC CORPORATION, BellSouth Corporation, Qwest Communications International, Inc., SBC Communications Inc. and Verizon Communications Inc., Defendants-Appellees.
425 F.3d 99
William TWOMBLY, individually and on behalf of all others similarly situated and Lawrence Marcus, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
BELL ATLANTIC CORPORATION, BellSouth Corporation, Qwest Communications International, Inc., SBC Communications Inc. and Verizon Communications Inc., Defendants-Appellees.
Docket No. 03-9213.
United States Court of Appeals, Second Circuit.
Argued: September 15, 2004.
Decided: October 3, 2005.

Page 100

COPYRIGHT MATERIAL OMITTED

Page 101

J. Douglas Richards, Milberg Weiss Bershad Hynes & Lerach LLP (Michael M. Buchman, Milberg Weiss Bershad Hynes & Lerach LLP, New York, NY; Richard S. Schiffrin, Joseph H. Meltzer, Krishna Narine, Schiffrin & Barroway, LLP, Bala Cynwyd, PA; of counsel), New York, NY, for Plaintiffs-Appellants.

Mark C. Hansen, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C. (Michael K. Kellogg, Sean A. Lev, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C., Washington, DC; Paul K. Mancini, William M. Schur, SBC Communications Inc., San Antonio, TX; John Thorne, Robert J. Zastrow, Verizon Communications Inc., Arlington, VA; Jay P. Lefkowitz, Kirkland & Ellis LLP, New York, NY; Hector Gonzalez, Mayer, Brown, Rowe & Maw LLP, New York, NY; Richard J. Favretto, Miriam R. Nemetz, Mayer, Brown, Rowe & Maw LLP, Washington, DC; J. Henry Walker, Marc W.F. Galonsky, Ashley Watson, BellSouth Corporation, Atlanta, GA; Peter K. Vigeland, Wilmer Cutler Pickering LLP, New York, NY; William J. Kolasky, Wilmer Cutler Pickering LLP, Washington, DC; Timothy M. Boucher, Qwest Communications International, Inc., Denver, CO; of counsel), Washington, DC, for Defendants-Appellees.

Before: SACK, RAGGI, and HALL, Circuit Judges.

SACK, Circuit Judge.


In an amended complaint filed in the United States District Court for the Southern District of New York, the plaintiffs allege that the defendant telecommunications providers1 conspired not to compete against one another in their respective geographic markets for local telephone and high-speed Internet services, and to prevent competitors from entering those markets, in violation of Section 1 of the Sherman Act. At the time the complaint was filed, Section 1 provided:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

15 U.S.C. § 1 (2000) (amended 2004).2 The district court (Gerard E. Lynch,

Page 102

Judge) concluded that the amended complaint fails to allege sufficient facts from which a conspiracy can be inferred and therefore granted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

Because we disagree with the standard that the district court applied in reviewing the sufficiency of the plaintiffs' allegations, we vacate its judgment and remand for further proceedings.

BACKGROUND

This case arises in the wake of the Telecommunications Act of 1996, Pub L. No. 104-104, 110 Stat. 56 (codified at scattered sections of Titles 15 and 47 of the United States Code) ("Telecommunications Act" or the "Act"), which was designed to promote competition in the market for local telephone service. Twombly v. Bell Atl. Corp., 313 F.Supp.2d 174, 177 (S.D.N.Y.2003). The Act requires that the defendants — so-called "Baby Bells" or "Incumbent Local Exchange Carriers" ("ILECs"), which were created following the 1984 breakup of the American Telephone & Telegraph Co. ("AT & T") — open their government-sanctioned regional monopolies over local telephone service to competition from so-called "Competitive Local Exchange Carriers" ("CLECs"), including by allowing CLECs to connect their own telephone networks to those of the ILECs, by providing the CLECs with access to the ILECs' network elements for "just, reasonable, and nondiscriminatory" rates, and by allowing the CLECs to purchase the ILECs' telecommunications services at wholesale rates for resale to subscribers. 47 U.S.C. § 251(c); Twombly, 313 F.Supp.2d at 177. In exchange, the Act permits the ILECs to enter the market for long-distance service in which they were prohibited from participating since the breakup of AT & T. 47 U.S.C. § 271; Twombly, 313 F.Supp.2d at 177.

The plaintiffs allege that the defendants, motivated by the desire to protect their respective geographic monopolies and otherwise unsustainable profit margins, have resisted the mandate of the 1996 Telecommunications Act by conspiring with one another to keep CLECs from competing successfully in the defendants' respective territories. Twombly, 313 F.Supp.2d at 177-78. The plaintiffs also allege that the defendants, who among them control more than ninety percent of the market for local telephone service in the United States, Amended Complaint ("Am.Compl.") ¶ 48, have agreed not to compete with one another in their respective territories, id. ¶¶ 40-41; Twombly, 313 F.Supp.2d at 178. According to the plaintiffs, the result of this alleged conspiracy has been to drive CLECs out of business, to restrain competition in the market for local telephone and high-speed Internet services, and to injure the plaintiffs by forcing them, as consumers of those services, to pay at rates higher than they would otherwise pay in a competitive environment. Twombly, 313 F.Supp.2d at 178.

The amended complaint alleges several factual bases for its far-reaching claims of a two-pronged antitrust conspiracy.

Agreement Not to Compete

As an initial matter, the plaintiffs allege "parallel conduct" on the part of the ILECs in not competing with each other, which they assert "would be anomalous in

Page 103

the absence of an agreement . . . not to compete." Am. Compl. ¶ 40. Specifically, they allege that for various historical reasons, the defendants' respective service territories are not entirely contiguous, with some of the defendants serving pockets of territory that are entirely surrounded by the territories of their supposed competitors. Id. ¶¶ 40-41. For example, according to the allegations, defendant SBC serves most of the State of Connecticut, even though defendant Verizon serves the surrounding northeastern states, and SBC also serves California and Nevada, even though defendant Qwest serves the surrounding western states. Id. ¶ 40. Similarly, Verizon serves many small patches of territory in various western and midwestern states that are otherwise primarily served by SBC. Id. While the plaintiffs contend that these geographic anomalies should provide Verizon and Qwest with "substantial competitive advantages" in competing with SBC for business in Connecticut, and California and Nevada, respectively, and SBC with similar advantages in competing with Verizon in the west and midwest, none of those companies has sought to compete with the others "in a meaningful manner." Id. ¶ 41. The plaintiffs deem this to be a situation that would be "unlikely" absent an agreement not to compete. Id. They suggest that this result is especially odd in that the defendants have publicly complained that the Telecommunications Act hurts their businesses by forcing them to provide CLECs with access to their networks at rates that are below the cost of maintaining those networks. Id. ¶ 39. By this same economic logic, the plaintiffs argue, the ILECs should be scrambling to compete with one another as CLECs, thereby benefitting from inexpensive access to their competitors' networks. Id.

The plaintiffs also point to a statement allegedly made by Richard Notebaert, the current Chief Executive Officer of defendant Qwest and the former Chief Executive Officer of Ameritech Corp., which merged with defendant SBC in 1999. Id. ¶ 42. In a newspaper article published in October 2002, Notebaert was quoted as saying that for Qwest, competing in the territory of SBC/Ameritech "might be a good way to turn a quick dollar but that doesn't make it right." Id. (quoting Jon Van, Ameritech Customers Off Limits: Notebaert, Chi. Trib., Oct. 31, 2001, at Business 1). According to the plaintiffs, that statement, coming at a time when Qwest's revenues were declining and it was losing money, constituted an admission of collusive conduct among the ILECs. Id. ¶¶ 42-44.

And the plaintiffs point to a letter from two members of the House of Representatives to then-Attorney General John Ashcroft requesting that the Department of Justice investigate the extent to which the Baby Bells' "very apparent non-competition policy in each others' markets is coordinated." Id. ¶ 45 (quoting Letter from Rep. John Conyers Jr. and Rep. Zoe Lofgren to Att'y Gen. John D. Ashcroft (Dec. 18, 2002)).

In addition, the plaintiffs assert that the defendants communicate frequently with one another "through a myriad of organizations," providing an opportunity for a conspiracy to form and be conducted without the likelihood of detection. Id. ¶ 46. At the same time, they assert that "[t]he structure of the market for local telephone services is such as to make a market allocation agreement feasible" even in the absence of frequent communications, in part because "[i]f one of the [d]efendants had broken ranks and commenced competition in another's territory the others would quickly have discovered that fact." Id. ¶¶ 48-49.

Page 104

Agreement to Prevent CLECs from Competing Successfully

The plaintiffs further allege that from the day of the Telecommunications Act's enactment until the present, the defendants have sought to interfere with the ability of...

To continue reading

Request your trial
118 practice notes
  • Rxusa Wholesale, Inc. v. Alcon Laboratories, Inc., No. 06-CV-3447 (DRH)(AKT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 24, 2009
    ...restraint of trade. 8. In its opposition papers, Plaintiff relies heavily on the Second Circuit's decision in Twombly v. Bell Atl. Corp., 425 F.3d 99 (2d Cir.2005), which has since been reversed by the Supreme 9. In addition to prohibiting monopolization, Section 2 of the Sherman Act also p......
  • In Re Insurance Brokerage Antitrust Litigationopticare Health Systems Inc., No. 07-4046
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 16, 2010
    ...be pleaded to permit an antitrust claim based on parallel conduct to survive dismissal.” Twombly, 550 U.S. at 553, 127 S.Ct. 1955 (quoting 425 F.3d 99, 114 (2d Cir.2005) (emphasis in original)). The basis for the Court of Appeals' conclusion was that parallel conduct alone was sufficient to......
  • In re Tamoxifen Citrate Antitrust Litigation, Docket No. 03-7641.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 2, 2005
    ...marks, citation, and alteration omitted). There is no heightened pleading requirement in antitrust cases. See Twombly v. Bell Atl. Corp., 425 F.3d 99, 108-13 (2d In reviewing a decision on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we "must accept as true all the fa......
  • Henneberger v. County of Nassau, No. 05-CV-3242 (JFB)(ARL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 6, 2006
    ...will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir.2005), cert, granted, ___ U.S. ___, 126 S.Ct. 2965, 165 L.Ed.2d 949 C. 42 U.S.C. § 1983 CLAIMS4 1. Exhaustion Defendants argue that al......
  • Request a trial to view additional results
116 cases
  • Rxusa Wholesale, Inc. v. Alcon Laboratories, Inc., No. 06-CV-3447 (DRH)(AKT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 24, 2009
    ...restraint of trade. 8. In its opposition papers, Plaintiff relies heavily on the Second Circuit's decision in Twombly v. Bell Atl. Corp., 425 F.3d 99 (2d Cir.2005), which has since been reversed by the Supreme 9. In addition to prohibiting monopolization, Section 2 of the Sherman Act also p......
  • In Re Insurance Brokerage Antitrust Litigationopticare Health Systems Inc., No. 07-4046
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 16, 2010
    ...be pleaded to permit an antitrust claim based on parallel conduct to survive dismissal.” Twombly, 550 U.S. at 553, 127 S.Ct. 1955 (quoting 425 F.3d 99, 114 (2d Cir.2005) (emphasis in original)). The basis for the Court of Appeals' conclusion was that parallel conduct alone was sufficient to......
  • In re Tamoxifen Citrate Antitrust Litigation, Docket No. 03-7641.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 2, 2005
    ...marks, citation, and alteration omitted). There is no heightened pleading requirement in antitrust cases. See Twombly v. Bell Atl. Corp., 425 F.3d 99, 108-13 (2d In reviewing a decision on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we "must accept as true all the fa......
  • Henneberger v. County of Nassau, No. 05-CV-3242 (JFB)(ARL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 6, 2006
    ...will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir.2005), cert, granted, ___ U.S. ___, 126 S.Ct. 2965, 165 L.Ed.2d 949 C. 42 U.S.C. § 1983 CLAIMS4 1. Exhaustion Defendants argue that al......
  • Request a trial to view additional results
1 books & journal articles
  • Twombly and the Evolution of Telecom Regulation
    • United States
    • Antitrust Bulletin Nbr. 53-1, March 2008
    • March 1, 2008
    ...General Telephone &Electronics being the chief exception.Twombly v. Bell Atlantic Corp., 313 F. Supp. 2d 174(S.D.NY2003),reo'd,425 F.3d 99 (2d Cir. 2005),reti'd,127 S. Ct. 1955 (2007).©2008 byFederalLegalPublications, 96THEANTITRUSTBULLETIN:Vol. 53, No.l/Spring2008Act violation.' Amotion to......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT