Brief for Antitrust Law Professors as Amici Curiae in Support of Petitioners - Visa Inc. V. Osborn

Abstract

The courts of appeals are divided over whether a plaintiff can plausibly plead a horizontal conspiracy among competitors in violation of section 1 of the Sherman Act merely by alleging that members of a business association: (a) have governance rights in the association and (b) agreed to adhere to its rules. Amici submit that the D.C. Circuit erred in holding here that such allegations are sufficient. That holding is inconsistent with this Court’s precedent requiring plaintiffs, in order to allege an illegal agreement, to plead facts plausibly suggesting collusion among the defendants to achieve a common unlawful objective. The approach approved by the decision below would mean that every business that participates in the affairs of a business association can be subjected to expensive discovery concerning an allegedly anticompetitive rule of the association. That would discourage beneficial business-association activities, to the detriment of businesses and consumers alike.