Antitrust Nonprofit Urges 7th Circuit to Deny T-Mobile’s Interlocutory Review Petition

The U.S. Supreme Court “has long recognized the key role private litigants play in enforcing federal antitrust laws,” said the Committee to Support the Antitrust Laws in an amicus brief Thursday (docket 24-8013) in the 7th U.S. Circuit Court of Appeals.

The nonprofit opposes T-Mobile’s petition for interlocutory review to reverse the district court’s denial of T-Mobile’s motion to dismiss the case of seven AT&T and Verizon customers who seek to vacate T-Mobile’s 2020 Sprint buy because they allege the deal caused their own wireless rates to soar (see 2404190003). The role that private litigants play in enforcing federal antitrust laws “would be jeopardized by the imposition of overly burdensome constraints and pleading standards on private parties seeking remedies for anticompetitive conduct,” said the committee’s brief.

The goals of the antitrust laws will be “undermined” if the 7th Circuit “grants extraordinary review solely to entertain latent advocacy for a yet-more onerous Rule 8 pleading standard,” said the brief. The district court “properly held” that the plaintiffs’ allegations of proximate cause were “plausible” under Rule 8 after “appropriately crediting” the plaintiffs’ allegations “tethering T-Mobile’s merger” to their injuries, it said.

Contrary to T-Mobile’s argument, the “mere presence” of possible alternative explanations for the plaintiffs’ injuries doesn’t make less plausible the plaintiffs’ “detailed factual allegations connecting T-Mobile’s alleged antitrust violations” to the plaintiffs’ payment of higher prices, said the brief. Crediting such alternative explanations “would require the court to engage in impermissible fact finding before discovery,” it said.

T-Mobile’s “hypothetical explanations” for the plaintiffs’ injuries don’t “subsume the plausibility” of the plaintiffs’ “detailed causal facts,” said the brief. The 7th Circuit “should deny T-Mobile’s attempt to manufacture such an issue for interlocutory appeal,” it said.

Nor should the 7th Circuit take up T-Mobile’s request for interlocutory review merely to determine whether Twombly, a case about procedural pleading requirements, “overturned or superseded” Gypsum, a case about substantive antitrust standing requirements, said the brief. The 7th Circuit also should ignore T-Mobile’s arguments on this point “because they are waived,” it said. T-Mobile didn’t argue at the motion to dismiss stage that Twombly changed the meaning, viability or elements of antitrust standing, as it does before the 7th Circuit for the first time, it said.