The Court Supreme us has just to make a judgment, hailed as a victory for businesses, who often face that bit based also costly collective complaints. Before the question of the level of proof which a complainant must meet as soon as the preparatory phase of the procedure, the Court accepted a demanding approach to disqualify less based actions very upstream in the process. The interest of the solution adopted by the Court exceeds the U.S. procedural context however and could usefully draw reflections currently undertaken on this side of the Atlantic.
For collective actions in competition law, it is difficult to reconcile two often opposing objectives, but also legitimate one than the other: on the one hand allow compensation for harm individual even when they are weak and many victims, and, on the other hand, to prevent the development of closer practices of blackmail than legitimate fault repair. This difficulty including explains that in France the Bill on the collective actions filed in November 2006 has been removed from the agenda of the Parliament in January 2007, victim of cross-media business and consumer associations hostility. In this context, the decision of the US Supreme Court brings an important contribution to the debate. Breaking with a well established legal tradition, the Court strengthens imposed standard of evidence to a complainant from the preparatory phase of proceedings, in deciding that an allegation of violation of the right of competition must, according to the formula adopted by the Court, cross the "dividing line between the possible and the plausible" before allowing the so-called "discovery" proceduresoften very heavy and expensive.
In doing so, the Court stressed the burden of proof resting upon the complainants, particularly when a conduct on the market is compatible with both hypothesis of illicit collusion between competitors with that of a simple parallelism of autonomous behaviour arising from convergent but independent analyses. In such cases, the Court, the complainant may simply mere allegations, even if they are consistent with a hypothesis of unlawful collusion, but must rely on a set of facts to suggest how plausible more than a mere "possibility" that the offending behaviour is the result of collusion.
The standard of evidence and summary is not really new. What is new is that the complainant must comply very early in the procedure. In the case of "twombly", individual complainants, potential embryos of a "class" to bring together tens of millions of consumers, alleged the existence of a geographical sort of Yalta between the Baby Bells, local operators of telecommunications from the dismantling of ATT in 1984. But the complainants brought in support of their argument that suspicion enough waves. Insufficient, slice the Court, to begin a process of "discovery", which is often so heavy and costly in itself as its only perspective, even in objectively low records, often forced companies to compromise before any trial.
It lies the main lesson of the case. Competition, it is rarely easy to draw a clear line between parallel but independent of companies conduct inspired by a common perception of market conditions and practices of collusion. By imposing a standard of proof to the complainants in the initial phase of the procedure, the Court Supreme us limit the possibility of such abuse. What in Europe and France Shares in compensation for the damage are still rare, and usually come from administrative procedures to collect many items of evidence. Therefore, the evidentiary issues do not arise with the same acuity in private actions that follow. At least not yet. But if such actions to develop in the near future, as is likely, the approach of the Supreme Court will take this side of the Atlantic also, its meaning.