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

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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.

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