Interlocutory Appeals of Denials of Motions to Dismiss in the Wake of Twombly: A New Option for the Defense?


In a decision more critical for procedure than its end result, the United States Court of Appeals for the Seventh Circuit considered, and ultimately rejected, an interlocutory bid by Verizon Wireless LLC, AT&T Mobility LLC, Sprint Nextel Corp., and T-Mobile USA Inc. — who allegedly control 90% of the U.S. text messaging market — to dismiss a putative class action alleging that they conspired to fix text message prices. The Court held that the second amended complaint alleged an antitrust conspiracy with sufficient plausibility to satisfy the heightened pleading standard established by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009). In re Text Messaging Antitrust Litig., No. 10-8037 (7th Cir. Dec. 29, 2010). Twombly and Iqbal created more rigorous pleading requirements for Federal civil cases, requiring that plaintiffs include enough factual information in their complaints to make it plausible — not merely possible or conceivable — that they will be able to prove their claims. Of significance, writing for the panel, Judge Richard Posner concluded that the difficulty courts have had with properly interpreting the Twombly and Iqbal decisions justified granting a Section 1292 motion for interlocutory review of an order denying a motion to dismiss.

Please see full alert below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Schnader Harrison Segal & Lewis LLP | Attorney Advertising

Written by:


Schnader Harrison Segal & Lewis LLP on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.