For many defendants in antitrust litigation, the procompetitive nature of their alleged conduct is a topic near the bottom of the list of subjects they want to address.

They would prefer to first exhaust all of the available avenues for avoiding full-blown merits litigation—and all of the costs and burdens that discovery and trial can bring. There is the usual motion to dismiss raising the plaintiff’s lack of standing; the incoherence of the plaintiff’s legal theory; the failure to plead market definition or some other element; and (when available) the Twombly motion challenging the plausibility of the complaint’s factual assertions. Then comes the challenge to class certification, the inevitable Daubert motions directed at the other side’s experts, and the motion for summary judgment explaining why there is no cognizable evidence supporting a valid antitrust theory.

Originally published in Antitrust & Trade Regulation Report on September 19, 2014.