Hey, two of my favorite things, together again:
First, Plaintiff again fails to plead sufficient facts to clear the pleading hurdle set forth by the Supreme Court in Ascroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). As the Court recognized in the Order, when facing a Rule 12(b)(6) motion to dismiss “a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Order at 4 (quoting Twombly, 550 U.S. at 555.)Let me offer some unsolicited advice (the best kind!) to my pal Bob Turken.
In Twombly, the Supreme Court confirmed that in order to survive a motion to dismiss under Rule 12(b)(6) an antitrust complaint must contain factual allegations which are “enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 555.
Citing Iqbal, this Court also reminded the parties that “Plaintiff must plead enough facts to state a plausible basis for the claim.” Order at 4. Ultimately, the facts set forth in the complaint must be sufficient to “nudge the[ ] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Your motion was plenty strong without a throwaway Iqbal argument (you can read the whole thing here).
Do you really think Judge Marra will blow past your smartly presented and credible "market definition" deficiency argument ("South Florida NBA sports stars who have a funnily-spelled first name" or something), conclude that indeed a proper market definition was provided but then bounce it on Iqbal plausibility grounds?
If he did, would that be what you want to be arguing about on appeal?
Reminds me of that old brief-writing maxim I tell my associates -- get rid of arguments four, five and six.
Otherwise, nicely done and I think Wade's in pretty good shape here.