Carl Hittinger, Tyson Herrold Analyze Basis for Early Dismissal Rulings Based on Judicial Experience and Plausibility in Antitrust Cases

Articles / March 5, 2018

Partner Carl Hittinger and Associate Tyson Herrold authored an article published by The Legal Intelligencer on March 2, 2018. The article, “Should a Judge’s Personal Judicial Experience Affect Antitrust Pleadings?,” discusses the premise that some courts since the U.S. Supreme Court rulings in the Twombly and Iqbal decisions suggest that the plausibility standard can be assessed in the context of the judge’s personal “judicial experience” and “common sense,” even if the antitrust allegations pled are to the contrary.

Hittinger and Herrold challenge that suggestion, writing that:

  • [T]he Supreme Court did not say that judges may supplant well-pleaded factual allegations with their own personal opinions, beliefs or observations, even when judicial experience and common sense suggests the allegations may be dubious or alternative explanations are more plausible. That would be a recipe for judge shopping.
  • The standard is to determine whether an allegation is plausible not whether it is the only or the most plausible explanation nor that the allegations seem improbable based the judge’s own personal experience. By definition, judges may not weigh plausible inferences to determine which is more accurate. That is the job of the jury as fact finder

Read the article (registration required).

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