Monday, July 13, 2020

Power Analytics: what is a plausible claim under FRCP 8?

The decision begins:

As courts have regularly maintained, the allegations
set forth in a complaint may not simply recite the elements
of a cause of action. A plausible “short and plain” statement
of the plaintiff’s claim, pursuant to Federal Rule of
Civil Procedure 8(a)(2), must contain putative facts that
provide fair notice and show that the plaintiff is entitled to
relief. Skinner v. Switzer, 562 U.S. 521 (2011). Although
we accept such factual allegations as true at the motion to
dismiss stage, the complainant “must plausibly suggest an
entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery and continued
litigation.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011).

Of note

Similarly, Power Analytics’ continued reference to
ETAP’s intent to “kill competition” is irrelevant. Appellant
Br. 54. Courts have regularly explained that there is no
duty to aid competitors and that “[s]tatements of an innovator’s intent to harm a competitor . . . are insufficient by
themselves to create a jury question under Section 2.” Allied Orthopedic, 592 F.3d at 1001. “Were intent to harm a
competitor alone the marker of antitrust liability, the law
would risk retarding consumer welfare by deterring vigorous competition.” Aerotec Int’l, Inc. v. Honeywell Int’l, Inc.,
836 F.3d 1171, 1184 (9th Cir. 2016). In this case, ETAP’s
memo discusses no interest in restricting competition in
the industry; it only expresses a desire to defeat ETAP’s
competitors. J.A. 1508 ¶ 85. And, it proposes no conduct
such as below-“cost” pricing, that would make no economic
sense other than for purposes of eliminating competition.


Because Power Analytics fails to allege sufficient
facts to “nudge [its] claim[] across the line from conceivable
to plausible,” its claim must be dismissed. Twombly, 550
U.S. at 570


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