United States: Second Circuit Decision On Pleading Conspiracy More Welcoming To Plaintiffs

Last Updated: February 11 2013
Article by Paula W. Render, Kevin D. McDonald, Eric P. Enson and Michelle K. Fischer

The Supreme Court recently decided not to review a Second Circuit decision on the standard for pleading conspiracy, leaving in place that decision, Anderson News, LLC v. American Media, Inc., 680 F.3d 162 (2d. Cir. 2012).  In its opinion, the Second Circuit held that, when assessing the sufficiency of the plaintiff's pleadings under Sherman Act § 1, the court should not question whether there are other plausible, or even more plausible, alternatives to the plaintiff's theory.  This decision in Anderson could make pleading conspiracies considerably easier for antitrust plaintiffs, at least in the very important Second Circuit.

Second Circuit precedent on assessing conspiracy claims

The U.S. Supreme Court's 2007 decision in Bell Atlantic v. Twombly set a new standard in antitrust pleadings under Section 1.  The Court held that plaintiffs must plead "plausible grounds to infer an agreement" with "context that raises a suggestion of a preceding agreement."  Under well-established caselaw, allegations of parallel conduct must be accompanied by allegations of so-called "plus factors," which the Supreme Court has defined as "anything that tends to exclude independent action."  But courts and parties continue to wrestle with exactly what is required to plead conduct that crosses that line.

In a prior decision on this question, In re Elevator Antitrust Litigation, the Second Circuit acknowledged that difficulty, observing that "‘considerable uncertainty' surrounds the breadth" of the Twombly decision.  The court there explained that "while Twombly does not require heightened fact pleading of specifics, it does require enough facts to ‘nudge [plaintiff[s'] claims across the line from conceivable to plausible.'"  The Elevator decision further explained that "it is not enough to make allegations of an antitrust conspiracy that are consistent with an unlawful agreement; to be viable, a complaint must contain ‘enough factual matter'… to suggest that an agreement" actually was made.

In Elevator, the Second Circuit dismissed the plaintiffs' complaint for failing to satisfy that requirement.  The plaintiffs had alleged that the defendant-elevator manufacturers violated Section 1 by conspiring to foreclose competitors from providing repair services to the defendants' elevators.  The court explained that the plaintiffs' allegations consisting solely of  parallel conduct were insufficient because, "while that conduct is consistent with conspiracy, [it is] just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.'"  The court held that, in the absence of plausible allegations of conduct suggesting that the conduct was collusive rather than independent (in other words, allegations of plus factors), the complaint had been correctly dismissed.

Anderson News

The Second Circuit arrived at the opposite conclusion in Anderson, vacating the district court's decision dismissing the complaint.  In Anderson, the plaintiff alleged that defendant publishers and distributors of print magazines conspired to drive the plaintiff out of business after it instituted a price increase.  The district court granted the defendants' motion to dismiss because there was a plausible alternative to the plaintiffs' theory of harm that did not involve an illegal agreement between the plaintiffs.

The Second Circuit vacated the district court's decision.  The court held that, once the plaintiff crosses the threshold from conceivable to plausible, a court should cease weighing the likelihood that the facts provided by the plaintiff increase the chances of discovery unveiling further evidence of an agreement.  Although the Anderson district court identified equally plausible non-collusive alternatives to the plaintiff's characterization of defendants' behavior, the Second Circuit made clear that "the question is not whether there is a plausible alternative to the plaintiff's theory [but] whether there are sufficient factual allegations to make the complaint's claim plausible."  The Second Circuit found the conspiracy claims plausible because the plaintiff had pled:

  • The date, time, and location of alleged conspiratorial meetings, the parties that were involved, and an indication that these meetings were not held in the ordinary course of business;

  • Emails between defendants demonstrating that the defendants communicated about what their reactions were to a particular supplier's price increase and how they planned to respond;

  • Conversations between the defendants and plaintiff that could be construed as an implicit admission to participation in a conspiracy; and

  • A temporal relationship between the above facts and the boycotting behavior.

The district court had relied on the fact that the defendants had "a variety of reactions" when they first learned of the price increase before they allegedly conspired against the plaintiff.  Moreover, it did not believe that it would be in the defendants' best economic interests to remove the plaintiff from the market.  Despite these findings, the Second Circuit found that sufficient plus factors existed and thus the pleading contained plausible grounds to infer the existence of an agreement.

Restricting the court's inquiry in motions to dismiss

Anderson is notable because the court limited the defendant's ability to show that conduct alleged as a plus factor does not "tend to exclude independent action."  When the court is first reviewing the pleadings on a motion to dismiss, the court is permitted to assess whether the facts alleged would establish parallel conduct.  If the plaintiff's grounds for alleging a conspiracy could "conceivably" support the accusation, then the court may weigh the allegations to determine whether there is a plausible claim that the parallel conduct was due to collusive rather than unilateral decision-making, and thus determine whether it is worth the time and expense to find further evidence through discovery and trial.

However, once the court finds that the plaintiff sufficiently pled plus factors and that a conspiracy is "plausible," the inquiry must stop.  The court can consider the facts provided by the defendant as an alternative explanation for the behavior, but the plaintiff need not prove that their theory is more plausible than the defendant's theory to sufficiently plead its case.  As the Second Circuit explained, "on a Rule 12(b)(6) motion, it is not the province of the court to dismiss the complaint on the basis of the court's choice among plausible alternatives."  Thus, the existence of facts that make the defendant's theories equally plausible will not doom the plaintiff's complaint.  Rather – assuming the plaintiff later adduces sufficient evidence to support the factual allegations in its complaint – "the choice between or among plausible interpretations of the evidence" will be left to the factfinder.


Anderson provides a few insights into the Twombly pleading standard, as interpreted by the Second Circuit.  First, when compared to Elevator, the Anderson case provides guidance on what constitutes adequate pleading of plus factors.  The Anderson plaintiff provided dates, times, and locations of alleged meetings among the defendant-competitors.  These alleged meetings were not trade association meetings but were after-hours or weekend meetings, some of which were supposedly in the offices of a competitor.  Moreover, the plaintiff provided circumstantial evidence showing that the defendants were talking about their planned response to a price increase.  In other words, these allegations provided the "factual context suggesting [that the parties reached an] agreement" required by Twombly as opposed to facts "merely consistent" with an agreement, as in Elevator, where the plaintiffs alleged meetings and agreements, but no specifics about the meetings or communications or agreements among the defendants.

Second, Anderson highlights that, in the Second Circuit, the success of the pleading largely is in the hands of the plaintiff.  The plaintiff has the obligation to plead sufficient facts to demonstrate "plausible grounds" of a conspiracy.  Pleading parallel conduct and plausible plus factors meets that requirement.  The defendants can provide facts to demonstrate the plaintiff's interpretation is implausible.  But if the plaintiff's interpretation still is plausible, then the pleading requirement has been met.  No matter how much explanation the defendant provides in its response or motion to dismiss, the court must refrain from weighing the parties' competing, unproven assertions and only assess whether the plaintiff's allegations are plausible.  "Plausible" is not "most likely."

However, a district court may have difficult drawing the line between whether the plaintiff's allegations of conduct plausibly show collusion and whether plaintiffs' allegations are more or less plausible than defendants' justification for the conduct at issue.  Weekend meetings not in the ordinary course of business may be easy to assign to the collusion side of that line.  But with more ambiguous potential plus factors, precluding any justification from defendants at the motion to dismiss stage could essentially eviscerate the role of plus factors in distinguishing mere parallel conduct from potentially unlawful conduct.

One type of plus factor that courts have considered is "signaling," conduct by defendants that indirectly "signals" their intended price changes to one another, such as through press releases or conferences with industry analysts.  Under Anderson, defendants could try to explain the innocent nature of communications alleged to be signaling, but would succeed only if the court found that the defendants' facts made the plaintiff's allegations implausible.

The takeaway is that courts still struggle with the meaning of "plausibility" and this central conundrum of antitrust law: how to distinguish lawful competitive behavior from unlawful collusion even though the two can look extremely similar.  The Second Circuit's Anderson decision has made the plaintiff's task easier.

(The Supreme Court case is Curtis Circulation Co. v. Anderson News, LLC (No. 12-446).)  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Paula W. Render
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.