starr v sme reply brief

8/8/2019 Starr v SME Reply Brief

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No. 10-263L'ITHE

,;upr.eme (flUUr! o tIre ~ n H e i ' t j5itaesSONY MUSIC ENTERTAINMENT, ET AL.,

Petitioners,v.KEVIN STARR, ET AL.,

Respondenl"

On Petition For A Writ or CertiorariTo The United States Court orAppeals

For The Second Circuit

REPLY BRIEF FOR PETITIONERS

THoMASG. HUNGARCounsel ofRecordJOSEPHKATTAN, PCTHOMASM. JOHNSON, JR .GIBSON, DUNN & CRUTCflF,R LLP1050 Connecticut Avenue, N.W.Washington, D.C. 20036(202) 955-8500thunga1>gibsondunn.comCounsel for Petitioners


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jII!

RULE 29.6 STATEMENTThe corporate disclosure statement included inth e petition for a writ of certiorari remains accurate.


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11

TABLE OF CONTENTSPage

REPLY BRIEF FO R PETITIONERS. ........................ 1I. THE SECOND CIRCUIT'S DECISION

CONFLICTS Wrrn TwOMBLYAND IQBAL ................ 1n. THE HOWING BELOW CONFLICTS WITH

DECISIONS OF OTHER COURTS OFAPPEALS ................................................................ 4

III. THERE ARE No CASE-SPECIFICOBSTACLE:> TO THIS COURT'SRESOLUTION OF THE QUESTIONPRESENTED ........................................................... 6

IV. THE QUESTION PRESENTED WAS BOTHPRESSED AND PASSED UPON .................................9

V. POLlCY CONSIDERATIONS SUPPORT THISCOUR'l'S REVIEW ................................................. 10CONCLUSION .......................................................... 11

iiiTABLE OF AUTHORITIES

Page(s)CasesAshcroft v. Iqbal,

129 S. Ct. 1937 (2009) ..............................1, 4,8,10Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ....................... .............1,2,3,4Braden v. Wal-Mart Stores, Inc.,

58 8 F.3d 585 (8th Cir. 2009) ................................. 5Dura Pharm., Inc. v. Broudo,544 U.S. 336 (2005) ......................... ............... 2, 3 ,4In re Ins. Brokerage AntitrustLitig.,

618 F.3d 300 (3d Cir. 2010) ........................... ........ 4Jacobs v. Tempur-Pedic Int'l, lru.:.,No. 08-12720, 2010 WL 4880864

(11 th Cir. Dec. 2, 2010) ......................................... 4Matsush ita Elee. Indus. CO. V. Zenith

Radio Corp.,475 U.S. 574 (1986) ............................................... 4Swierkiewicz u. SoremaN.A.,

534 U.S. 506 (2002) ................................................ 3Tam Travel, Inc. v. Delta Airlines, Inc.,583 F.3d 896 (6th Cir. 2009) ................................. 5Texaco Inc. v. Dagher,547 U.S. 1 (2006) ....... : ....... ............ ............ ........... .7Twombly v. Bell Atl. Corp.,

313 F. Supp. 2d 174 (S.D. N.Y. 2003) .................... 3


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ivUnited States v. Williams,504 U.s. 36 (1992) ........................ ......... .9Rulesl"ed. R. Civ. P. 50 .........................................................2Fed. R. Civ. P. 56 .........................................................2Other AuthoritiesMark Anderson & Max Huffman, Iqbal,Twombly, and the Expected Cost ofFalse Positive Error, 20 Cornell J.L. &Pub. pory 1 (2010) ....... ........................................ 11Eugene Gressman, Supreme CourtPractice (9th ed. 2007) ......................................... 10A. Benjamin Spencer, PlausibilityPleading, 49 B.C. L. Rev. 431 (2008) .................. 11Tom Spring, Digital Music: Worth BuyingYet?, PC World (Jan. 18,2002) ............................. 8

REPLY BRIEl!' FOR PETITIONERSDespite plaintiffs' attempts to confuse the nature

of the issues and distract th e Court's attention fromthe question presented, there is no dispute that theSecond Circuit squarely held that the substantivelegal standard applicable to plaintiffs' claim at summary judgment and trial does not govern at th epleading stage. Pet. 3, 9; Opp. 27. That holding is inconflict with this Court's precedents an d inconsistentwith decisions of other courts of appeals, an d meritsthis Court's review.Plaintiffs' principal response is that petitioners

seck to impose a "probability" standard on allegations in a complaint, bu t that argument is baseless.Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),establishes th e governing procedural requisites atthe motion-to-dismiss stage-plaintiffs m ust allegefacts establishing a "plausible entitlement to relief'Cid. at 559)-but the substantive standard governingth e claim remains th e same at each stage of th e case.Here, that standard requires plaintiffs to allege factsthat plausibly "tend to exclude" independent, selfinterested conduct as an explanation for th e defendants' alleged behavior.Plaintiffs' remaining attempts to obscure th eclarity of th e question presented arc without meritand provide no basis for denying review.I. THE SECOND CmCUIT'S DECISION CON

FLICTS WITH TWOMBLYAND IQBALUnder Twombly and Ashcroft v. Iqbal, 129 S. Ct.1937 (2009), plaintiffs must plead facts that plausibly show "entitlement to relief' (Twombly, 550 U.S.at 559); that is, facts that could satisiY th e substan

tive legal standards that would govern the claim atsummary judgment or trial. Pet. 12-16; see also


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2Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346(2005). Plaintiffs argue that this rule would create a" p r o b a b i l i t y ' ~ standard at the pleading stage. Opp.11. I t does not.

Plaintiffs are no t required to prove their case atthe pleading stage or show that it is more likely thannot they will prevail; bu t they must allege facts thatshow a "plausible entitlement to relief." Twombly,550 U.S. at 559. To be sure, the procedural requisites change at later stages of litigation: At summary judgment, a plaintiff m ~ y pro.ceed to tria: onlyif th e evidence obtained dunng dIscovery rillses a"genuine dispute as to [a1 material fact" (Fed. R. Civ.P. 56(a), an d a plaintiff must have "a l e g a n ~ sufficient evidentiary basis" for a favorable rulmg toavoid a directed verdict (id. 50(a)(1. But while theprocedural standards differ at each. stage of a case,th e substantive legal standard remillllS constant .

Despite plaintiffs' claim that "[nlo court hasadopted (thel argument that Twombly and Iqbal . . .require . . . that lal c o m p l a i n ~ allege facts sufficientto 'satisfy the same substantlVe legal standard thatapplies at s u ~ m a r y ~ u d g m e ~ t or trial'" (Opp . 1 ~ ) , that was precIsely this Court s mode of analysIs mTwombly and Iqbal themselves. In Twombly, theCourt analyzed antitrust cases decided at the summary judgment, directed verdict., and trial stages.See Pet. 12-14. The Court concluded that because, atthose later stages, evidence of parallel conduct a l o ~ e is insufficient to stat.:> a claim for unlawful conspl racy, the same standard al?plied to th e a ~ e g a t i o n s inthe complaint at the pleadmg stage. See td.

In Iqbal, the Court likewise e ~ a m i n e d cases decided at summary j u d ~ e n t and tnal, and concludedthat hecause plaintiffs must prove unlawful intent atthose stages, they must also plead unlawful intent in

3their complaint. See Pet. at 14-15; accord Dura, 544U.S. at 346.

Plaintiffs' reading of Twombly finds no refuge inthis Court's discussion of Judge Lynch's district courtopinion in that case. 550 U.S. at 552. Refutingplaintiffs' attempt (Opp. at 17-18) to suggest that hisopinion limited the "tends to exclude" standard to thesummary judgment phase, Judge Lynch explicitlystated that "district courts have required" plaintiffsto meet that same standard "in order to withstandmotions to dismiss." Twombly v. Bell Atl. Corp., 313F. Supp. 2d 174, 179-80 (S.D.N.Y. 2003). The courtbelow read Judge Lynch's opinion the same way:"the district court [in Twombly) .. . held that plaintiffs must allege additional facts that tended to exclude independent, self-interested conduct." Pet.~ p p . 18. This Court approvingly cited that reasoningil l Twombly, 550 U.S. at 552, and it directly conflictswith the Second Circuit's decision here.

Plaintiffs also attempt to find support for theirposition in Swierkiewicz v. Sorema N.A., 534 U.S.506 (2002). Hut Twom.bly clarified that Swierkiewiczheld only that a plaintiff need no t engage in "heightened fact pleading of specifics" if the facts containedin a complaint suflice to state a claim for relief. 550U.s. at 570. I t was plausible that the allegations inSwierkiewicz would be substantiated by direct evidence of discrimination, an d thus this Court did no trequire the plaintiff to "allege certain additional factsthat [hel would need at the trial stage to support hisc ~ a i m in the absence of direct evidence." ld . (emphaSl S added); see Pet. ]6 n.3. Bu t this Court did nothold that a complaint could survive a motion to dismiss without pleading facts consistent with any substantive theory of liability. That is what the plaintiffs attempted to do in Twombly, and what plaintiffsattempt to do here.


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4In ~ h o r t plaintiffs are unable to explain away

the conflict between th e decision below andTwombly, Iqbal, and Dura. Moreover, even therewere some remaining confusion regarding the Importof Swierhiewicz in light of Twombly and Iqbal-andihere is not-that would hardly militate against further review. Instead, it would simply confirm theneed for this Court to grant certiorari and clarify theimportant issue of law presented by the petition.Il . THE HOLDING BELOW CONFLICTS WlTHDECISIONS OF OTHER COURTS OF APpEALS

Plaintiffs' analysis of decisions from other circuits does nothing to diminish the conflict among thecourts of appeals on the proper s u b s t : a ~ ~ i v e standardto apply when evaluating th e plauslb,hty of allega-tions in a complaint.First, plaintiffs do not disp.ute t h ~ t the ThirdCircuit recently held that "plainhf fs relYIng on parallel conduct must allege facts that, if true, would establish at least one 'plus factor,' since plus factorsare, by definition, facts that 'tend[] to ensure thatcourts punish concerted. a c t i o n - ~ actual agreement-instead of the unilateral, Independent. conduct of competitors.'" In re Ins. Brokerage A n t ~ t r u s t Litig., 618 F.3d 300, 323 (3d Cir. 2010) (citatio.nomitted)' see also Opp. 32. Plaint iffs downplay thISholding a "single phrase" in a l ~ n r : o p i n ~ o n (Opp.32-33), bu t it is nonetheless an expliclt h o l d I n ~ oftheThird Circuit, binding on all federal. courts I I I .tl:atcircuit. And that holding conflicLs WIth th e deCISIOnbelow, which held that plaintiffs can survive ation to dismiss without pleading any factors tendmgt.o exclude the possibility of independent action.

Second, plaintiffs do no t dispute that the ~ i g h t h Circuit has held ihat, where "obvious alternative ex-

5planation[s]" exist for a defendant's conduct "aplaintiff may be required to plead additional factstending to rule out the alternative." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009);see also Opp. 34. They sinIply object that petitionersfailed to offer an "obvious alternative explanation"here, which-as explained below-is incorrect. Seeinfra pp. 8-9.

Third, plaintiffs do no t dispute that the SixthCircuit held that th e "tends to exclude" standard "illuminates the plausibility" of allegations in antitrustcomplaints. Tam Travel, Inc. v. Delta Airlines, Inc.,583 F.3d 896, 907 ll.7 (6th Cir. 2009); see also Opp.28. They merely point out that the court did no t explicitly state that plaintiffs are required to pleadsuch facts. But unlike the Second Circuit the SixthCircuit clearly held that the s u m m ~ - j u d g m e n t standard was relevant in determining whether acomplaint's allegations were plausible. That mode ofanalysis cannot be reconciled with the decision below. 1

1 The decision below is also inconsistent with the Eleventh Circuit's recent decision in Jacobs v. Tempur-Pedic Int'l, Inc., No.0812720, 2010 WL 4880864 (11th Cir. Dec. 2, 2010). RelyingUl l Twumbly and Matsushita Elec. Indus. Co. v. Zenith RadioCorp., 475 U.S. 574, 587 (1986) (2010 WL 4880864, at *9-*10),Lhe court dismissed an antitrust conspiracy claim bccnuse theplaintiffs did not IDeet their "burden to p


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6III. THERE ARE NO CASESPECIFIC OBSTACLES TO TIDS COURT'S RESOLUTION OFTHE QUESTION PRESENTED

Plaintiffs attempt to avoid review by characterizing th e decision bel.0"Y" as facL-depend?nt an d ~ C C U 8 ' ing petitioners of railmg to refute specIfic f a c t ~ m th ecomplaint. These arguments are Wlthout ment.1. Plaintiffs complain that petitioners f a i l e ~ toexplain how two statements by i n d u s ~ r y executn:esalleged in the complaint could be conslstent Wlth m

dependent, self-interested conduct. Opp. 1 0 - 1 ~ . Plaintiffs mischaractcrize these statements and frulto explain how this argument counsels against certiorari.The Second Circuit committed a pure error oflaw: I t held that plaintiffs were not required toplead facts suffieient to raise a plausib.le claim of en titlement to relief under the substantIVe legal standard governing their claim, which requires that th eproffered facts "tend io exclude" independent, selfinterested behavior. Pet. App. 18. That the court ofaIJpeals considered "fourteen separate facts': in.conducting it s analysis is irrelevant (Opp. 2)-l t dId sounder th e wrong substantive standard.

In any event, petitioners demonstrated belowthat plaintiffs' allegations do no t plaill!ibly show entitlement to relief, because they descnbe the lawfulbehavior of joint ventures setting the prices ru:dterms of the venture's own products. See Mem. mSupport of Defs.' Moi. to Dismiss 11 & n.S ("[I]t iswell-established that joint vent.ures are free to se tthe terms an d requirements under which the jointventure will operate."); Appellees' Br. 27 (same).That is a complete response to th e two statementscited by plaintiffs.

7First, plainLiifs mischaracterize (through use of a

bracketed insertion) a quotation by Edgar Bronfman,Jr., currently CEO of Warner Music Group (one ofthe petitioners). According to plaintiffs, he statedthat "we [the music industry] determine" InternetMusic prices. Opp. i (emphasis added). To the contrary, Bronfman's quotation referred to pressplay,one of the two joint ventures, setting the price for it sown product sold by it s agent distributors. Pet. App.93a ("Pressplay has what we call an affiliate modelwhere we determine the price, an d we offer a percentage of that price to the retailing partner . .. )(emphasis added). It is lawful for members of a jointventure to set the prices that the joint venture willcharge for it s products (see Texaco Inc. v. Dagher,547 U.S. 1, 8 (2006), and it is indisputably withineach member's self-interest to do so.

Second, plaintifTh point to an industry executive'sstatement that there are "legal/antitrust reasons"why a "most favored nation[]" clause should be included in an alleged side letter rather than in a licensing agreement between EMI an d it s joint venture, MusicNet. Opp. 3; Pet. App. 95a.2 According tothe complaint, this letter memorialized an agreement that EMrs economic terms would be as favorable as those of the other two co-venturers in MusicNet. Pet. App. 95a ('Il'Il 94, 95). There is nothinganticompetitive or contrary to individual self-interestabout an agreement among co-venturers to entertheir common enterprise on an equal footing. SeeDagher, 547 U.S. at 8. And in any event, a nonlawyer's speculations about the appearance of im-

2 Plaintiffs attribute this comment to Rob Glaser, erroneomlyidentified as "EMI CEO." Pet. App. 95a ('ll95). I t s a matter ofpublic record that Mr. Glaser worked for MucicNet, not EMl.


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8propriety under antitrust law does no t plausibly allege a conspiracy.

2. Plaintiffs concede that th e Second Circuit wasobligated to consider "'obvious alternative explana[,ion [s)"' for petitioners' conduct, an d "'to draw on it sjudicial experience an d common sense'" in reviewingthe complaint. Opp. 24 (quoting Iqbal, 129 S. Ct. at1950). They argue, however, that there was no "obvious alternative explanation" here, because petitioners "have not explained how their alleged conduct made economic or common sense as a responseto 'Internet piracy.'" Opp. 25.

Plaintiffs are wrong. An industry commentaLorSLated in an article on which plaintiffs' complaint relies that petitioners' motivation in forming the jointventures was to "'protect their copyrighted worksfrom freewheeling swapping on th e Internet, an d topick up a few extra bucks for making th e musicavailable digitally.'" Pet. 22 n.5 (quoting TomSpring, Digital Music: Worth Buying Yet?, PC World,Jan. 18, 2002); Pet. App. 89a n.2. Plaintiffs cannotcredibly claim that th e article on which they heavilyrely fails to "comport with common sense." Opp. 24.

Moreover, contrary to plaintiffs' claims, petitioner s explained in th e lower courts that "[tlhe jointventutes, in order to control piracy, restricted theirsubscribers to 'tethered' down oads or 'streams' sothat a subscriber could nOL capture a song file on hisor her computer and transfer it to non-subscribers,portable devices or CDs." Appellees' Br. 12 n.7; seealso Mem. in Support of Defs.' Mot. to Dismiss 16-17(similar). As th e district court understood, usage restrictions made perfect sense as a "collaborative effort LO address widespread music piracy." Pet. App.45a.

Contrary to plaintiffs' conspiracy allegations, it ismuch more plausible that th e joint ventures were

9;mprofiLable because petitioners were ummccessfulil l t ~ e i r initial attempt to package an d sell InternetMu.sle I I I a form that wa s attractive to consumerswhile also protecting their copyrighted work fromI ~ t e r n e t piracy. The court of appeals' failure to conSI?er this "obvious alternative explanation" conflictsWIth Twombly an d Iqbal.

Because the erroneous legal pl'inciple adopted bythe court of a p p e ~ s conflicts with Twombly, Iqbal,and ~ u r a and WIll create confusion for courts at ~ e m p t m g to apply this Court's precedents, certiorariIS w ~ a n t e d to resolve that conflict. See Pet. 12-16.I f ~ h l S .court were to grant review an d correct (for athird bme) th e Second Circuit's erroneous approachto assessing pleadings at th e motion-io-dismissstage, th e Court in it s discretion could (as inTwombly and Iqbal) then proceed to apply that standard to th e allegations of the complaint, but such anapproach would serve only to provide further guidance for th e lower courts.3N. TH E QUESTION PRESEN TED WAS BOTHPRESSED AND PASSED UPON

Their other arguments unavailing, plaintiffs fallback on th e baseless claim that th e question presented was waived below. Opp. 26-27. But waiveroccurs "only when th e question presented was notpressed 0: ~ a s s e d upon ':>elow" - a "rule [that] operates (as It )s phrased) I II the disjunctive." UnitedStates v. Williams, 504 U.S. 36, 41 (1992). The issue3 Alten;atively, of course, th e Court could remand for furtherp : o ~ d i n g s . That eourse would not be necessary here: Thedistrict court, under th e correct legal standard, had n diffi ultr . . 0 C Yru mg ,01' petitioners. Pet. App. 32a-67a. Indeed, plaintiffs donot even contend that their complaint could pass muster underthat standard.


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10here wa s both pressed and passed upon, and is therefore squarely presented.Petitione1'5 devoted an entire section of their appellate brief to the argument that "'!'he 'Ten.ds :0Exclude' Standard Applies At The Motion To DIsmlssPhase." Appellees' Br. 15-19. And as plaintiffs admi t (Opp. 27), the Second Circuit explicitly considered an d rejected as "incorrect," petitioners' argument to that effect. Pet. App. 18a. The Second Circuit thus held that a plaintiff alleging a Section 1violation need not test a complaint's plausibilityagainst th e substantive l e g ~ standar? that. governsat summary judgment or trlal. That IS precIsely theissue on which petitioners seek this Court's review.4v. POLICY CONSIDERATIONS SUPPORT

THIS COURT'S REVIEWFinally, the policy concerns advanced by plaintiffs do no t counsel against certiorari.Plaintiffs claim that the legal standard advancedby petitioners would promote "corporate self-interestand the market" over "judicial and regulatory deterrence." Opp. 1. Dura, Twombly, and Iqbal, however,establish an equal-opportunity pleading standard

that applies to all federal causes of action, regardlessof th e identity ofthe parties. See Iqbal, 129 S. Ct. at1952.Plaintiffs also argue that the Court should acceptthe view expressed in an antitrust treatise that th e4 Plaintiffs also fault petitioners for citing Dura, 544 U.S. 336,for the first time in their petition for certiorari. Opp. 22.When as here, the question presented waS pressed and passedupon below, however) this Court will not deem the issue waivedmerely for failure to cite a specific authority in the court of appeals. See generally Eugene Gressman et aI., Supren1 CourtPractice 6.26(b) (9th cd. 2007).

11" t e n d ~ to exclude" standard docs not apply at th epleading stage. Opp. 13 & n.7. This Court nced~ a r d l y defer a particular academic opinion on anIssue of pleading standards. In any event, otherc o m ~ e n t a t ? ~ s have read Twombly to require thep l ~ a d i n g of facts that satisfY the legal standard applicable at summary judgment or tria1.5 That thequestion p r e ~ e n t e d . ha s drawn scholarly commentaryan d debate slmply Illustrates its importance and confirms the need for this Court's review to resolve theconfhct by clarifying the appropriate legal rule.

CONCLUSIONFor the reasons stated herein and in the petition

certi?rari should be granted. Th e Court may wishconslder summary reversal.

5 See, e.g., Mark Anderson & Max Huffman, Iqbal, Twombly,and the ~ x p e c : e d Cost ofFalse Positive IiJrror, 20 Cornell J.L. &Pub. Pol y 1, :>2 (2010) (describing the "essential step requiredof circumstantial allegations by Twombly of tending to excludthe possibility of unilateral conduct"); A. Benjamin Spence ePlausibility Pleading, 49 RC . L. Rev, 431, 450 (2008) ("IIf;.se,ems . , . th e Court . . , held that the additional evidence thatWlll be reqUITed at trial (and at the summary judgment stage)to prove an agreement based on parallel conduct-evide nce tbatmust tend to exclude the possibility of independent acLiunmust be alleged at tb e pleading stage,") (footnote omitted).


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12Respectfully submitted:

December 8,2010

THOMAS G. HUNGARCounsel ofRecord

JOSEPHliATTAN,PCTnoMAsM. JOHNSON, JR.GIBSON, DUNN & CRUTCHER LL P1050 Connecticut Avenue, N.W.Washington, D.C. 20036(202) 955-8500

starr v sme reply brief

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