This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.
The U.S. Court of Appeals in Chicago, sitting en banc, will rehear a case brought by purchasers of potash, alleging a global price fixing conspiracy among producers.
A three-judge panel of the court had rejected the claims on the ground that the Foreign Trade Antitrust Improvements Act (FTAIA) applied to bar the suit (2011-2 Trade Cases ¶77,611). The panel’s opinion and judgment were vacated on December 2.
The panel had concluded that the assertion that the defendants “conspired to coordinate potash prices and price increases so as to fix, raise, maintain, and stabilize the price at which potash was sold in the United States at artificially inflated and anticompetitive levels” was wholly conclusory and insufficient to satisfy the pleading standards established by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly (2007-1 Trade Cases ¶76,785).
The complaint purportedly described anticompetitive conduct aimed at the potash markets in Brazil, China, and India—not the U.S. import market.
The rehearing order is Minn-Chem, Inc.v. Agrium Inc., December 2, 2011.
Twombly-Iqbal Standard “a Mess”
In a posting on the Wolters Kluwer Antitrust Connect blog, Christopher L. Sagers, Professor at Cleveland-Marshall College of Law, wrote that there is a growing consensus that the Twombly-Iqbal standard “is a mess,” having destabilized the our entire system of civil litigation and adopting a pleading system foreign to fundamental procedural principles.
The en banc order in this case is very welcome, wrote Sagers, since the three-judge panel’s opinion exempted from antitrust challenge a conspiracy “that was alleged to have caused billions of dollars in consumer injury, even while acknowledging plaintiffs had adequately alleged a worldwide conspiracy to inflate potash prices, had supported their claims with elaborate plus-factors pleading, and had alleged that contemporaneously with the conspiracy potash prices in the United States increased by six hundred percent.”
The blog posting appears here on the Antitrust Connect blog.