'Twombly', 'Leegin' and the Reshaping of Antitrust

Competition Policy and Antitrust

Article Snapshot


Randal Picker


U of Chicago Law & Economics, Olin Working Paper No. 389, February 2008


This article looks at recent Supreme Court decisions involving competition law.

Policy Relevance

In the past, courts have been generous in letting private firms bring antitrust suits against competitors. Private plaintiffs must now produce more evidence and stronger arguments to win.

Main Points

  • Recently the Supreme Court has decided four antitrust cases. Each case extends the law only a little, but the trend is that private antitrust plaintiffs will find it harder to succeed.


  • When antitrust claims are preempted, a plaintiff’s case does not make it to court. A case involving Credit Suisse ruled that federal securities law precludes some antitrust claims related to securities.


  • Failing to produce enough evidence can result in a case’s rejection by the judge. The Twombly case requires plaintiffs to produce enough facts to show firms conspired rather than acting independently.


  • Courts once assumed that some actions were almost always bad. The Court now requires stronger economic arguments that consumers and competition really were harmed. The Weyerhaeuser case involved predatory bidding; the Leegin case involved retail price maintenance.

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