Complex Litigation: Antitrust Class Standing

Abstract

Commentary and analysis of pleading standing in consumer antitrust class action litigation, after the Supreme Court’s heightened pleading standards in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). This analysis focuses on the Second Circuit’s decision in Ross v. Bank of America, 524 F.3d 217 (2d Cir. 2008), where the Second Circuit held that there is no heightened standard for pleading injury in fact sufficient to satisfy standing under Article III of the U.S. Constitution, simply because the alleged injury is caused by an antitrust violation. The action was brought by a class of credit card holders issued by Bank of America, American Express, and Wells Fargo & Co. The plaintiffs claimed that the banking and financial institutions illegally colluded, in violation of the federal antitrust laws, to impose mandatory arbitration clauses in their cardholder agreements. The defendants filed Rule 12(b)(1) and 12(b)(6) motions to dismiss arguing that the cardholders lacked Article II and antitrust standing to assert their claims. The Second Circuit held that the plaintiffs had pleaded injuries that were actual and imminent under Lujan standards, and eschewed the argument that there are special, heightened standards for establishing standing in antitrust cases.