How much more than possible is “plausible?” After the Supreme Court’s seminal decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, a plaintiff must allege enough facts to show a plausible right to relief. What this means in practice has been left to the lower courts and has yielded arguably disparate outcomes. Is the plausibility standard met by allegations that a loan officer “motivated by personal animosity” after not receiving personal guarantees from a bank-customer-corporation’s shareholders acted to put the corporation into receivership, convincing others, including a professional receiver, to share in his animosity and join in a plan to maliciously injure the shareholders in violation of Wis. Stat. 134.01? Judge Crabb thought no, dismissing the claim, in part because it seemed implausible that a professional receiver, who did not know the shareholders, would risk his livelihood to join a malicious scheme to injure them.
Further illustrating the increased difficulty in pleading potentially burdensome civil claims after Twombly and Iqbal, the Seventh Circuit reversed on interlocutory appeal a plaintiff’s claim that a conspiracy to fix potash prices outside the United States violated federal antitrust law because it influenced the price of potash sold inside the United States. Minn-Chem, Inc. v. Agrium Inc., slip op., No. 10-1712 (Sept. 23, 2011). At issue was whether the claim was barred by the Foreign Trade Antitrust Improvements Act (FTAIA), 15 U.S.C. §6a, which in general bars the application of U.S. antitrust laws to agreements affecting only foreign commerce, but exempts from the bar foreign anticompetitive conduct that either affects U.S. import commerce or “has a direct, substantial, and reasonably foreseeable effect” on U.S. domestic or import commerce.