Do you text? You know -- that typey thing you do with your mobile phone. Choose the number, key in the words, hit send and -- presto -- the text goes over the wireless network to your best friend's Storm/iPhone/Android/Pixon/i8510/Touch HD/n85/Renoir.
Easy, right? But not cheap.
Which fact seems to have prompted the filing of class actions awhile back against the four firms that dominate the Short Message Service universe. The quadrumvirate, the complaints alleged, handle 90 percent of the texting market and fixed prices so that they could jack up rates even as their costs dropped.
Yesterday, the Seventh Circuit upheld a district judge's ruling that the texting complaint stated a claim for price-fixing under section 1 of the Sherman Act. In re Text Messaging Antitrust Litig., No. 10-8037 (7th Cir. Dec. 29, 2010). Writing for the panel, Judge Richard Posner noted that the trouble courts have had with Twombly and Iqbal -- which some wits call Twom-bal, Tw-iqbal, or even Iq-bly -- justified the court in granting mid-course review of an order denying a motion to dismiss.
Judge Posner also tweaked the Court for claiming in Iqbal that Twombly didn't create a "probability" test:
The Court said in Iqbal that the "plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." 129 S. Ct. at 1949. This is a little unclear because plausibility, probability, and possibility overlap. Probability runs the gamut from a zero likelihood to a certainty. What is impossible has a zero likelihood of occurring and what is plausible has a moderately high likelihood of occurring. The fact that the allegations undergirding a claim could be true is no longer enough to save a complaint from being dismissed; the complaint must establish a nonnegligible probability that the claim is valid; but the probability need not be as great as such terms as "preponderance of the evidence" connote.
Id., slip op. at 12-13.
There you have it. Plausible means nonnegligibly probable or moderately likely. Twombal.
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