Arguing for the plaintiffs who lost on a motion to dismiss before the U.S. District Court (E.D. Mo.), was Joseph Alioto, Jr. (of famed San Francisco lineage) before the U.S. Court of Appeals for the Eighth Circuit (James B. Loken, Myron Bright, Roger Wollman). Alioto argued emphatically that the ruling on a motion to dismiss was a disguised ruling on summary judgment before plaintiffs had time to develop their case with discovery.
The deal is done, of course, the merger’s occurred. Judge Bright raised pointed questions about what remedy plaintiffs have, given that the merger is done. Divestiture is the proposed remedy. Defense counsel, Peter Moll, of Howrey, LLP (Washington, D.C.), suggested that there has never been a case such as this in which a court ordered divestiture. Moll also pointed out that plaintiffs had extensive discovery in connection with their threshold motion for preliminary injunctive relief.
Again in this case, as in now thousands of cases in the federal system, the Iqbal/Twombly pleading standard has been invoked and shows a dramatic ratcheting up of the required detail and specificity of plaintiffs’ complaints (and defendants’ counterclaims, of course).