On December 11, 2019, Lisa Jose Fales and Paul Feinstein published "Make Up Your Mind Already: Circuit Splits Regarding the Role of Inferences at the Pleadings Stage and Summary Judgement" in the American Bar Association's Antitrust magazine. The following is an excerpt:
It is well-settled that both direct and circumstantial evidence may be used to prove the existence of an antitrust conspiracy. As courts have recognized, however, only rarely in antitrust conspiracy cases will there be direct evidence of an express agreement. Without such "smoking gun" evidence, conspiracies nearly always must be proven through inferences drawn from circumstantial evidence. Consequently, how a court treats such inferences has a significant impact on substantive antitrust liability. This is particularly true at both the pleading stage and at summary judgement. In this context, this article examines two circuit splits relating to the treatment of inferences: the first regarding whether competing inferences can be weighed on a motion to dismiss, and the second regarding the scope of permissible inferences at summary judgement.