• July 14, 2010

After Bell Atlantic v. Twombly, U.S. civil litigators know that pleading requirements in federal court have been ratcheted up substantially, and probably in no area of law more than in the antitrust context, that is, the context of Twombly itself.

In the antitrust case brought against SuperValu pending before U.S. District Court Judge Ann D. Montgomery, Plaintiffs operate retail grocery stores and they allege that SuperValu conspired with C&S, another large wholesale grocer,  to violate antitrust laws when the two moved in on the bankrupt Fleming Companies, another wholesale grocer, in 2003 and, it is alleged conspired to divvy up the spoils along geographic lines and agreed not to compete with one another in each others’ respective markets.

SuperValu pointed to the applicable four-year statute of limitation as a basis for the dismissal of the antitrust complaint.  (Plaintiffs’ earliest complaint was filed 12/31/2008.)  SuperValu prevailed on the argument that the doctrine of fraudulent concealment was inapplicable to the allegations but lost on the argument that its on-going allegedly wrongful acts (e.g., charging supra-competitive prices) served to extend the statute.

SuperValu also invoked the “plausibility” requirement of Twombly, an argument that Judge Montgomery rejected quickly.

Judge Montgomery devoted considerably more time to her analysis Plaintiffs’ motion for partial summary judgment based on a finding that the SupreValu/C&S alleged “scheme” amounted to a “per se” antitrust violation but she rejected that argument as well.

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