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Hold-Ups And Highway Robberies: A Proposal To Return To The Pre-Bell Atlantic 12(B)(6) Pleading Standard While Subsidizing Defendants' Discovery Costs (Including Discovery-Related Attorney Fees) In Meritless Cases, Anthony C. Biagioli

Anthony C Biagioli

Antitrust pleading practice is plagued by a normative dilemma. Under a lenient pleading standard, plaintiffs may proceed to discovery on a showing of parallel conduct alone, leading undeserving plaintiffs to extort blameless defendants into settling meritless lawsuits through the threat of imposing on defendants prohibitive discovery costs. Under a more stringent pleading standard, plaintiffs might be required to plead more than parallel conduct, leading deserving plaintiffs to see their complaints dismissed at the pleading stage due to a lack of sufficient factual support for their claims. The latter is a function of blameworthy defendants’ asymmetric information advantage through which defendants …