Articles Posted in Pleading standards

Algorithmic Pricing: New DAI Case, First Appellate Decision, and the Greystar Settlement. The show Goes On! (Part 1)

September 15, 2025 | Bona Law PC

Summer is over and everyone is back at the office. If you’ve been enjoying some days off, you’ve probably missed what happened recently in the algorithmic-pricing space in the US. And, as always, we had a very busy summer here.

First, there is a new case from the Northern District of California that confirms the importance of not only the nature of the information shared with the software provider, but also whether such information is later incorporated into any final pricing recommendations.
Second, we have the first opinion from a Court of Appeals—in this case the Ninth Circuit in the Gibson v. Cendyn Group case—analyzing an antitrust claim involving algorithmic pricing.
And third, the DOJ Antitrust Division announced its recent settlement with Greystar Management Services to resolve the DOJ’s claims about the use by Greystar of RealPage’s software.

As I said, everyone has been working hard around here during the past months!

This first article explains the Dai v. SAS Inst. Inc new case. Also, if you need some background on the current cases before diving into the new developments, we’ve written several articles on algorithmic pricing:

Dai v. SAS Inst. Inc., No. 24-CV-02537-JSW (N.D. Cal. July 18, 2025)

In this new case, plaintiffs sued software provider IDeaS, Inc. (“IDeaS”), and a group of hotel operators including Wyndham Hotels & Resorts, Inc., Hilton Domestic Operating Company Inc., Four Seasons Hotels Limited, Omni Hotels Management Corporation, and Hyatt Corporation, for conspiring to fix hotel room prices (“Hotel Operators”).

Here are the allegations:

IDeaS is the dominant provider of revenue management and profit optimization software and services for Hotel Operators.

According to the complaint, Hotel Operators agreed to provide IDeaS with non-public, competitively sensitive price and occupancy information in real time, including the price paid by consumers for each room, the quantity of rooms available by room type, whether or not any consumers attempted to book a room that was no longer available, and room rates not visible to the public.

IDeaS would then plug all the information into its algorithm, generating supra-competitive pricing recommendations for each of them.

And the last—but certainly not least—piece of the puzzle: each defendant would implement IDeaS’s supracompetitive pricing, because they know all their horizontal competitors are doing the same thing.

Plaintiffs did not rely on direct evidence but rather alleged the inference of a horizontal agreement by the group of Hotel Operators using IDeaS’s software. They argued parallel conduct—when Hotel Operators began to use IDeaS’s software and to charge allegedly supra-competitive rates based on IDeaS’s recommendations—together with (i) an invitation to collude as well as the motive and the opportunity to do so; (ii) high barriers to enter the relevant market; (iii) inelastic demand for hotel rooms; and (iv) sharing of confidential information against self-interest; all as plus factors to show antitrust conspiracy.

Would this be enough to show the existence of an antitrust conspiracy? Not quite, according to the Northern District of California.

Remember, Sherman Act Section 1 antitrust cases require: (1) a contract, combination, or conspiracy among at least two different entities; (2) an intent to restrain trade; and (3) injury to competition. See here and here.

On July 18, 2025, the District Court for the Northern District of California dismissed the complaint on several grounds. What is particularly helpful for future litigants in this Opinion is the comparison the Court makes with past recent cases.

The Court in California held here that plaintiffs did not sufficiently allege parallel conduct for several reasons.

First, the Opinion compares the current case to In re RealPage, Inc., Rental Software Antitrust Litig., 709 F. Supp. 3d 478 (M.D. Tenn. 2023), where a critical level of RealPage’s software adoption explaining how defendants changed their strategy and increased prices—despite not acting simultaneously—was enough to show parallel conduct.

Then, and in contrast, it mentions Gibson v. MGM Resorts Int’l, No. 2:23-cv 00140-MMD-DJA, (D. Nev. Oct. 24, 2023), where a court dismissed the complaint for lack of parallel conduct. In that case, plaintiffs neither include information about when the defendants began to use the software and which systems they used, nor alleged facts about the rate at which the defendants accepted the software recommendations. Plaintiffs did include general allegations of the acceptance rate for the price recommendations, but that was not sufficient to make the existence of an agreement plausible according to Twombly requirements.

Last, the Northern District of California states that plaintiffs did not provide enough facts in this case to explain when the Hotel Operators began to outsource their pricing decisions to IDeaS; when they started to change their strategy and increased prices; or when and how they started to adopt IDeaS’s pricing recommendations to their room prices.

In other words, according to the Court, plaintiffs did not have to show that each defendant acted at the exact same moment in time or acceptance rate. But plaintiffs did have to plead additional facts to render the allegations of parallel conduct plausible, which as explained below, they didn’t do.

Indeed, the Court reasoned that plaintiffs did not allege enough plus factors:

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Observations on the Court’s Rejection of Facebook’s Motion to Dismiss the FTC’s Amended Antitrust Complaint

January 24, 2022 | Bona Law PC

Author: Jarod Bona

The FTC filed an antitrust lawsuit against Facebook (now Meta Platforms Inc.). Judge James E. Boasberg dismissed it. The FTC then filed an amended complaint. And the same judge just denied Facebook’s motion to dismiss that complaint.

The FTC alleges that Facebook has a longstanding monopoly in the market for personal social networking (PSN) services and that it unlawfully maintained that monopoly through (1) acquiring competitors and potential competitors; and (2) preventing apps that Facebook viewed as potential competitive threats from working with Facebook’s platform.

The FTC’s first claim asserts that Facebook monopolized the market through (1), above—acquiring companies (especially Instagram and WhatsApp) instead of competing. The FTC’s second claim includes both (1) and (2), the interoperability allegations, and invokes Section 13(b) of the FTC Act, which allows the agency to seek an injunction against an entity that “is violating” or “is about to violate” the antitrust laws.

The Court permitted the FTC to go forward with both claims, but also concluded that the facts from the interoperability allegations happened too long ago to fit into Section 13(b)’s “is violating” or “is about to violate” temporal requirement.

You can read the play-by-play of the opinion elsewhere or, even better, read the actual decision. My purpose with this article is instead to offer some observations about the opinion and broader antitrust litigation issues.

Direct and Indirect Evidence of Monopoly Power

The FTC argues that it has alleged both indirect and direct evidence of Facebook’s monopoly power. But because the Court concluded that the FTC had adequately alleged indirect evidence of Facebook’s monopoly power, it didn’t need to analyze the direct evidence of monopoly power.

The only reason I am bringing this up is because most monopolization cases focus on indirect evidence of monopoly power—i.e. relevant market definitions, market share, barriers to entry, etc.— so many people don’t consider that a plaintiff can also satisfy this element through direct evidence of monopoly power. For example, if a plaintiff can prove that a defendant is engaged in supracompetitive pricing, it is showing direct evidence of monopoly power. And in an antitrust claim against a government entity, the plaintiff may be able to show directly that the public entity is a monopolist as a result of government coercion.

Notably, the Court dismissed the last FTC Complaint against Facebook for failure to allege monopoly power. Here, the Court concludes that “the Amended Complaint alleges far more detailed facts to support its claim that Facebook” has a dominant share of the relevant market for US personal social networking services.

In reaching this conclusion, the Court agreed with the FTC that Facebook’s dominance is durable because of entry barriers, particularly network effects and high switching costs.

Anticompetitive Conduct

The alleged anticompetitive conduct consists of a series of mergers and acquisitions. Within antitrust and competition law, you typically hear about antitrust M&A in the context of Hart-Scott-Rodino filings and direct merger challenges by the FTC or DOJ.

Courts will sometimes conclude that mergers and acquisitions are a means of exclusionary conduct by a monopolist. As in the present case, that can come up when a company that dominates a market confronts a potential competitor and must decide how to respond. Sometimes the monopolist will compete better—reduce prices, improve quality, etc. That’s the way competition works. But in other situations, the monopolist might solve its problem by dipping into its cash or stock and remove the threat to its monopoly profits by buying the nascent competitive threat.

You could also imagine a scenario in which a monopolist engages in exclusionary conduct by going vertical and purchasing either a supplier or customer in a context in which such doing so makes it difficult for the monopolist’s competitors to achieve economies of scale. This can be similar in effect to an exclusive-dealing arrangement.

Harm to Competition

The FTC, of course, must allege harm to competition. The standard harm to competition is an increase in prices or a decrease in quality—which are two sides of the same coin. But these aren’t the only harms to competition that a plaintiff can allege.

Here, of course, the FTC is asserting an antitrust claim centered on purchase of Instagram and WhatsApp, which were free before and after the acquisitions. And the Facebook social network site is, of course, also free.

But the Court concluded that the FTC did, in fact, allege harm to competition. The FTC alleged “a decrease in service quality, lack of innovation, decreased privacy and data protection, excessive advertisements and decreased choice and control with regard ads, and a general lack of consumer choice in the market for such services.” And the FTC emphasized the lower levels of service quality on privacy and data protection resulting from lack of meaningful competition.

The Court accepted these allegations as sufficient harm to competition: “In short, the FTC alleges that even though Facebook’s acquisitions of Instagram and WhatsApp did not lead to higher prices, they did lead to poorer services and less choice for consumers.”

The question of whether less choice is sufficient harm-to-competition to support an antitrust claim has been controversial over the years, but Courts are increasingly permitting it.

Previously Cleared Transactions

Facebook understandably grumbles that the FTC previously cleared through the HSR process the two transactions that it now complains about. But the Court rejects this argument because it says the “HSR Act does not require the FTC to reach a formal determination as to whether the acquisition under review violates the antitrust laws.” And, in fact, an HSR approval expressly reserves the antitrust enforcers the right to take further action. It doesn’t seem fair, but that’s the way it is.

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Antitrust Law Meets Blockchain and Cryptocurrencies in Court: Lessons Learned on Market Definition and Antitrust Injury from the Bitman Case

August 16, 2021 | Bona Law PC

Author: Luis Blanquez

Following DOJ’s remarks on blockchain, it was only a matter of time until antitrust law and the unstoppable blockchain world would meet in court. And it finally happened some months ago in the complex Bitmain case.

In this case a cryptocurrency developer and mining company sued Bitcoin Cash miners, developers, and exchange operators for violating of Section 1 of the Sherman Act and Section 4 of the Clayton Act. It accused them of manipulating a network upgrade to take control of the Bitcoin Cash blockchain. The Court dismissed the Amended Complaint twice (the last one with prejudice), for failing to plausibly show a conspiracy to hijack the network and centralize the market, an unreasonable restriction of trade, and antitrust injury.

Blockchain and cryptocurrencies

Blockchain is such a complicated technology that just the simple task of defining it would require a much longer article. But the Southern District Court of Florida did a great job explaining in very simple terms what these two concepts––blockchain and cryptocurrencies–– are:

Cryptocurrency is a form of digital currency that trades in currency markets. The Satoshi Nakamoto whitepaper, published in October 2008, launched the idea of this “peer-to-peer” version of electronic cash that allows online payments from one party to another, independent of any financial institution. The Whitepaper coined the term “Bitcoin”, and today Bitcoin and Bitcoin Cash are different forms of cryptocurrency.

Cryptocurrencies are a “permissionless” system that rely on a network of decentralized encrypted public ledgers that document all digital transactions, known as a “blockchain”. The blockchain is a series of blocks, which are units of accounting that record new transactions in cryptocurrency. Confidence and trust in the accuracy of the transactions in the blockchain is possible because the decentralized ledgers are identical and continuously updated and compared.

The system has mechanisms that allow for consensus on the validity of the blockchain. One is “Proof-of-Work”, which is designed to eliminate the insertion of fraudulent transactions in the blockchain. Also, the “main chain” (normally, the longest chain) at any given time, is whichever valid chain of blocks has the most cumulative “Proofs-of-Work” associated with it. A consensus being reached on the longest blockchain is essential to the integrity of the network.

New cryptocurrency is created through a process called “mining”. Miners compete to “mine” virtual currencies by using computing power that solves complex math puzzles. The computer servers that first solve the puzzles are rewarded with new cryptocurrency, and the solutions to those puzzles are used to encrypt and secure the currency. The awarded currency is then stored in a digital wallet associated with the computing device that solved the puzzle.

The Bitmain case

In a nutshell, this case is about how certain mining pools, protocol developers and crypto-exchange defendants allegedly colluded to manipulate a network upgrade by creating a new hard fork, taking control of the Bitcoin Cash cryptocurrency. In the end, however, the court concluded that the plaintiff ––a protocol developer of blockchain transactions and mining cryptocurrencies––, failed to (i) show a plausible conspiracy, (ii) define any relevant product market to prove an unreasonable restriction of trade, and (iii) show any antitrust injury.

The Parties

As Konstantinos Stylianou effectively explains in his article What can the first blockchain antitrust case teach us about the crypto economy?, in the cryptocurrency world it is important to understand what the different players are and how they are connected in the market: investors, mining pools (groups of miners that combine their mining resources), crypto-exchanges, and protocol developers. We highly recommend his article.

The plaintiff, United American Corporation (UAC), is a developer of technologies for both the execution of blockchain transactions and mining cryptocurrencies. One of them is called BlockNum, a distributed and decentralized ledger technology that allows the execution of blockchain transactions between any two telephone numbers regardless of their location, eliminating the need for cryptocurrency wallets. The other one is called BlockchainDome, which provides a low-cost energy-efficient solution for mining cryptocurrency. UAC built four domes in total that operate over 5,000 Bitcoin Cash-based miners, investing more than $4 million in technology.

On the flip side, there are three different categories of defendants:

The mining pools: (i) Bitmain Technologies operate two of the largest Bitcoin Core and Bitcoin Cash mining pools in the world: Antpool and BTC.com. It is also the largest designer of Application Specific Integrated Circuits (“ASIC”), which are chips that power the Antminer series of mining servers––the dominant servers mining on a number of cryptocurrency networks, including Bitcoin and Bitcoin derivatives; (ii) Wu, CEO of Bitmain Technologies and one of its founders; and (iii) Ver, founder of Bitcoin.com, which provides Bitcoin and Bitcoin Cash services.
The crypto exchanges––Kraken and its CEO Jesse Powell––which operate exchanges on which Bitcoin, Bitcoin Cash and other cryptocurrencies are traded.
The protocol developers Shammah Chancellor, Amaury Sechet and Jason Cox who––similarly to UAC––, work on the development of the software to execute blockchain transactions and mining of cryptocurrencies.

The Alleged Antitrust Conspiracy

Summarized from the briefing:

Bitcoin Cash (or “BCH”) emerged as a cryptocurrency from the original Bitcoin Core (or “BTC”) on August 1, 2017, as a result of a “hard fork”. A hard fork is a change to the protocol of a blockchain network whereby nodes that mine the newest version of the blockchain follow a new set of rules, while nodes that mine the older version continue to follow the previous rules. Because the two rule-sets are incompatible, two different blockchains are formed, with the new version branching off.

The 2017 hard fork resulted from a dispute over Bitcoin’s utility: whether it should primarily be used to store value or conduct transactions.

(Note: BTC’s resistance to this significant attempt to fork it further strengthened it by demonstrating that it can overcome an attack of this type. If BTC were subject to significant forks that change its nature, it would not have the trust it has now as a store of value. This and other attacks on BTC actually strengthen it—Bitcoin is Antifragile in this way).

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What is the Twombly Motion-to-Dismiss Standard for Antitrust Cases? Comparing the Ninth and Second Circuits

August 15, 2020 | Bona Law PC

Author: Luis Blanquez

As a long-standing antitrust attorney in Europe, making the decision to move from Madrid to San Diego a few years ago to practice law in the U.S. has been a life-changing experience. Both personally and professionally. Learning from other cultures, colleagues, and languages is something I strongly recommend to everyone. It opens your mind and provides you with a different perspective about the world and yourself. And of course, that also applies to the practice of law.

Indeed, when you move to a new jurisdiction you basically become a “newborn” attorney, but with all your past experience in the backpack. That puts you in the best position to approach everything with a “fresh pair of eyes”, which in turn allows you to add value to your team and cases in a unique way.

In that respect, something I noticed during these first years of practicing antitrust law in the U.S. is how district courts, in deciding motions to dismiss cases, disagree on the applicable standard when analyzing antitrust conspiracies. Some apply the summary-judgment or trial-like standard to conspiracy allegations, particularly when confronted with “non-parallel-conduct” cases, despite the fact that a complaint at that stage is constructed without the benefits of discovery. Others misunderstand the language in Twombly about “ruling out the possibility of independent action,”—which is specific to conscious parallelism cases—and they incorrectly add it to the list of pleading requirements.

What is the Biggest Mistake that District Courts Make in Antitrust Cases?

The Antitrust Pleading Standard Is Shifting Back Toward the Plaintiff

TWOMBLY AND THE PLAUSIBILITY STANDARD

For those not familiar with antitrust law, Bell Atlantic Corp. v. Twombly changed the antitrust pleading standards in federal court from one of “extreme permissibility” to the current “plausibility” standard. And that was a big deal because it basically re-defined what Federal Rule of Civil Procedure 8(a)(2) requires for a complaint to survive a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) FRCP.

In antitrust cases, a claim under Section 1 of the Sherman Act requires (i) a contract, combination, or conspiracy; (ii) an unreasonable restraint of trade in the relevant market; (iii) and antitrust injury.

For the first prong, there are two ways to prove a “contract, combination, or conspiracy”: (i) by direct evidence that shows the existence of an agreement; or (ii) through a combination of parallel conduct and “plus factors,” i.e., “economic actions and outcomes that are largely inconsistent with unilateral conduct but largely consistent with explicitly coordinated action.” In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1194 (9th Cir. 2015).

Second, an unreasonable restraint of trade always involves some sort of antitrust illegal conduct such as fixing prices, allocating customers, a group boycott, or rigging bids, among many others.

Last, in order to survive a motion to dismiss, a complaint also requires antitrust injury. An antitrust plaintiff must show both constitutional standing and antitrust standing. If you want to know more about antitrust injury, we have written extensively on the subject.

The Elements of Antitrust Injury: A Two-Prong Test

Antitrust Injury and the Classic Antitrust Case of Brunswick Corp v. Pueblo Bowl-O-Mat

Here I will just focus on the two ways courts may prove a “contract, combination, or conspiracy”: (i) direct evidence, (ii) or circumstantial evidence and “plus factors”. This is the prong where district courts have been struggling when ruling on their motions to dismiss, mainly because Justice Souter’s opinion in Twombly included some language from the landmark summary-judgment decision (Matsushita) that the Court used to explain why in conscious parallelism cases, plaintiffs’ “offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently.”

DIRECT EVIDENCE

Direct evidence in a Section 1 antitrust conspiracy means evidence that is explicit and requires no inferences to establish the conclusion that an agreement exists. In plain English, a “smoking gun” in the form of documents, meetings or defendants’ testimony.

Federal courts around the country have agreed––with very limited exceptions––that whenever a complaint includes such non-conclusory allegations of direct evidence of an agreement, there is no need to go any further on the question of whether such an agreement has been adequately pled. And this is important because it means that allegations of direct evidence of an agreement––if sufficiently detailed––are independently adequate and sufficient alone.

Bottom line, in direct evidence scenarios, there is no need to even carry out the Twombly “plausibility” analysis in the first place. To meet the direct evidence standard the evidence must explicitly support the asserted proposition without requiring any inference. In re Citric Acid Litig., 191 F.3d 1090, 1093 (9th Cir. 1999) (“Citric Acid”)

This is the only threshold that a plaintiff should meet in order to survive a 12(b)(6) motion to dismiss when providing direct evidence.

CIRCUMSTANTIAL EVIDENCE, PARALLEL CONDUCT AND “PLUS FACTORS”

But like everything meaningful in life, things are rarely that straightforward in antitrust law. Thus, in alleging a conspiracy, a plaintiff may present either direct evidence (or if that’s not possible), circumstantial evidence of defendants’ conscious commitment to a common scheme designed to achieve an unlawful objective. This is a mouthful, so let’s try to bring some light to it.

District courts have the power to insist on some degree of specificity in pleading before allowing an antitrust complaint relying on allegations of circumstantial evidence of agreement to proceed. That’s why the Supreme Court in Twombly offered some guidance as to how to properly plead an agreement in parallel conduct cases:

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The Antitrust Pleading Standard Is Shifting Back Toward the Plaintiff

June 10, 2017 | Bona Law PC

Author: Jarod Bona

In 2007, the Supreme Court issued a bombshell of a case called Bell Atlantic v. Twombly, which caused both antitrust lawyers and civil procedure law professors to rethink how they go about their work.

For those of you not obsessed with law or antitrust, Twombly changed the antitrust pleading standards in federal court from one of extreme permissibility to the current “plausibility” standard.

Courts quickly began applying Twombly beyond antitrust cases, and it now is THE case for motions to dismiss that argue that plaintiffs have not plead enough to move to the next stage of litigation.

When the Supreme Court decided Twombly, it created a surge of excitement, and federal courts began dismissing cases left and right because plaintiffs had not alleged sufficient facts to show a “plausible” claim to relief, under antitrust or other laws.

Since then, I don’t think I have seen any antitrust complaint that wasn’t followed by a motion to dismiss, usually citing Twombly. Notably, courts coupled this elevated standard with refusals to start discovery until after plaintiffs leaped the motion-to-dismiss hurdle.

I believe, however, that the antitrust-pleading-standard pendulum is beginning to shift back toward the plaintiff.

Update: On November 10, 2014, the United States Supreme Court in Johnson v. City of Shelby issued a new plaintiff-friendly pleading decision.

Update 2: You can read my new article on antitrust pleading standards here: “What is the Biggest Mistake that District Court Judges Make in Antitrust Cases?”

Update 3: Read this article from Luis Blanquez: What is the Twombly Motion to Dismiss Standard for Antitrust Cases? Comparing the Ninth and Second Circuits.

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What is the Biggest Mistake that District Courts Make in Antitrust Cases?

October 16, 2016 | Bona Law PC

I won’t hide the ball; I’ll just tell you the answer: Federal district courts deciding motions to dismiss an antitrust case too often apply the summary-judgment standard to conspiracy allegations, particularly when confronted with non-parallel-conduct cases.

This isn’t scientific or empirical—it is my observation and is enough of an issue that more than one federal appellate court has complained about it over the last few years.

The motion to dismiss standard for antitrust conspiracies is, to be fair, somewhat confusing thanks to a case called Bell Atlantic v. Twombly. You can read my prior article about Twombly and pleading standards here.

Before the US Supreme Court decided Twombly in 2007, courts applied a very deferential standard to antitrust motions to dismiss, including conspiracy allegations.

Courts used to follow an old Supreme Court case called Conley v. Gibson (1957) (which you will find cited in many, maybe even most, motion-to-dismiss decisions preceding Twombly). Under Conley, a complaint satisfied specificity requirements if it stated facts that made it “conceivable” that plaintiff could prove its legal claims. A court could only dismiss a claim if it appeared that a plaintiff could prove—the famous phrase—“no set of facts” in support of his or her claim that would entitle the plaintiff to relief.

The Twombly Decision

I remember when I read the Supreme Court’s Twombly decision for the first time. Justice Souter wrote the majority opinion. At the time, I was with DLA Piper and represented a defendant in the In re Insurance Brokerage Antitrust Litigation (Here is an article about the litigation from Bill Kolasky, who was one of the joint defense group leaders). The case was still with the trial court during one of the motion-to-dismiss briefing rounds. (Usually when a court dismisses an antitrust complaint for the first time, it will do so without prejudice and with leave to amend, which leads to another round of motion-to-dismiss briefing).

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How Much Does it Cost to Litigate an Antitrust Case?

June 5, 2014 | Bona Law PC

If you ask this question to an antitrust lawyer, you will receive some form of “it depends” in response. That’s true. It does depend. And you will inevitably follow up with, “What does it depend upon?” Let’s see if we can begin to answer that question.

What we are discussing here is not a class-action antitrust lawsuit, but an antitrust claim by one business or individual against another. Class-action antitrust cases usually incorporate some contingency-fee approach and are lawyer-centered rather than client-centered cases. That is, the plaintiff law firms act as “private-attorney generals” to enforce the antitrust laws through the class-action vehicle. Those cases are very different than the typical case brought by a company against its competitor, supplier, or customer. You can read our article on defending against class certification in antitrust cases here.

Antitrust cases are expensive. Usually. But if managed effectively, they don’t need to cost nearly as much as they did when big law firms held a virtually monopoly on the cases by convincing clients that only they had the requisite resources to file such a massive claim.

With the combination of technological advancements and third-party providers, I believe that, in many instances, hiring a big law firm to run your antitrust case is a costly mistake. We’ll get into that more below.

I am not going to get into actual numbers here because fees and other costs vary and will change over time. But if you are considering antitrust litigation, studying the components of an antitrust lawsuit will help you (1) understand what you are paying for and (2) figure out how to reduce your costs.

Below are the primary-cost drivers of an antitrust case. Of course, every case is different and a lot can come up in litigation that is unexpected and unusual. That keeps it interesting, but also increases cost variances. The list below doesn’t hit everything, but I hope it helps you.

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Direct and Indirect Evidence of Monopoly Power

Anticompetitive Conduct

Harm to Competition

Previously Cleared Transactions

Blockchain and cryptocurrencies

The Bitmain case

The Parties

The Alleged Antitrust Conspiracy

TWOMBLY AND THE PLAUSIBILITY STANDARD

DIRECT EVIDENCE

CIRCUMSTANTIAL EVIDENCE, PARALLEL CONDUCT AND “PLUS FACTORS”

The Twombly Decision