In re Elevator Antitrust Litigation

1
06-3128-cv
In re Elevator Antitrust Litigation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006 1
2
(Argued: June 14, 2007 Decided: September 4, 2007) 3
4
Docket No. 06-3128-cv 5
6
- - - - - - - - - - - - - - - - - - - -x 7
8
In re ELEVATOR ANTITRUST LITIGATION 9
10
TRANSHORN, LTD., 1775 HOUSING 11
ASSOCIATES, ROCHDALE VILLAGE, INC., 12
BIRMINGHAM BUILDING TRADES TOWERS, INC., 13
TRIANGLE HOUSING ASSOCIATES, L.P., BAY 14
CREST CONDOMINIUM ASSOCIATION, OLEN 15
COMMERCIAL REALTY CORP., RIVERBAY CORP., 16
181 MAPLE AVENUE ASSOCIATES, D.F. CHASE, 17
INC., LENOX ROAD ASSOCIATES and TOWERS 18
OF CORAL SPRINGS LTD., 19
20
Plaintiffs-Appellants, 21
22
JOSEPH M. BENNARDI, doing business as 23
BUILDING SUPERS OF CAMDEN, INC., doing 24
business as NEDMAC MANAGEMENT, INC., 25
26
Consolidated-Plaintiff- 27
Appellant, 28
29
-v.- 30
31
UNITED TECHNOLOGIES CORPORATION, OTIS 32
ELEVATOR COMPANY, KONE CORPORATION, 33
KONE, INC., SCHINDLER HOLDING, LTD., 34
SCHINDLER ELEVATOR CORPORATION, 35
THYSSENKRUPP AG, THYSSENKRUPP ELEVATOR 36
CAPITAL CORP., and THYSSENKRUPP ELEVATOR 37
CORP., 38

-- 1 of 20 --

2
Defendants-Appellees. 1
2
- - - - - - - - - - - - - - - - - - - -x 3
4
Before: JACOBS, Chief Judge, STRAUB and B.D. 5
PARKER, Circuit Judges. 6
7
8
Appeal from a judgment entered by the United States 9
District Court for the Southern District of New York 10
(Griesa, J.) on June 6, 2006, granting defendants-appellees’ 11
motion to dismiss the complaint and denying leave to re- 12
plead. We affirm. 13
ERIC ALAN ISAACSON (Mark 14
Solomon, Christopher M. Burke, 15
David W. Mitchell, Tami 16
Falkenstein Hennick, on the 17
brief), Lerach, Coughlin, Stoia, 18
Geller, Rudman & Robbins LLP, 19
San Diego, CA, for Plaintiffs- 20
Appellants. 21
22
Mary Jane Fait, Wolf Haldenstein 23
Adler Freeman & Herz, LLP, New 24
York, NY, for Plaintiffs- 25
Appellants. 26
27
Nadeem Faruqi, Antonio Vozzolo, 28
Beth A. Keller, Faruqi & Faruqi, 29
LLP, New York, NY, for 30
Plaintiffs-Appellants. 31
32
MARK LEDDY (Leah Brannon, on the 33
brief), Cleary Gottlieb Steen & 34
Hamilton, LLP, Washington, DC, 35
for Defendants-Appellees United 36
Technologies Corporation and 37
Otis Elevator Company. 38

-- 2 of 20 --

3
Kenneth M. Kramer (Jerome S. 1
Fortinsky, Paula Howell, on the 2
brief), Shearman & Sterling LLP, 3
New York, NY, for Defendants- 4
Appellees Schindler Holding Ltd. 5
and Schindler Elevator 6
Corporation. 7
8
Gerald Zingone (Michael Evan 9
Jaffe, on the brief), Thelen 10
Reid Brown Raysman & Steiner 11
LLP, Washington, DC, for 12
Defendants-Appellees Kone 13
Corporation and Kone, Inc. 14
15
Terry Myers (Anthony A. Dean, on 16
the brief), Gibbons Del Deo, 17
Dolan, Griffinger & Vecchione, 18
P.C., New York, NY, for 19
Defendant-Appellee ThyssenKrupp 20
AG. 21
22
Scott Martin (Christopher V. 23
Roberts, on the brief), Weil 24
Gotshal & Manges LLP, New York, 25
NY, for Defendants-Appellees 26
Thyssenkrupp Elevator Capital 27
Corp., and Thyssenkrupp Elevator 28
Corp. 29
30
A. Paul Victor, Dewey Ballantine 31
LLP, New York, NY, for 32
Defendants-Appellees 33
Thyssenkrupp Elevator Capital 34
Corp., and Thyssenkrupp Elevator 35
Corp. 36
37
PER CURIAM: 38
This appeal is taken from a judgment of the United 39
States District Court for the Southern District of New York 40

-- 3 of 20 --

4
(Griesa, J.), dismissing a complaint alleging that defendant 1
elevator companies conspired to engage in anticompetitive 2
conduct in violation of Sections 1 and 2 of the Sherman Act, 3
15 U.S.C. § 1 et seq. (the “conspiracy claims”), and that 4
they unilaterally monopolized and attempted to monopolize 5
the maintenance market for their elevators, in violation of 6
Section 2 of the Sherman Act (the “unilateral-monopolization 7
claims”). We affirm. The conspiracy claims provide no 8
plausible ground to support the inference of an unlawful 9
agreement, and the allegations of unilateral monopolization 10
fail to allege a prior course of dealing. Finally, the 11
district court did not abuse its discretion by refusing 12
leave to amend the complaint. 13
14
I 15
Plaintiffs represent a putative class of persons who 16
“purchased elevators and/or elevator maintenance and repair 17
services from defendants,” sellers of elevators and 18

-- 4 of 20 --

1 Defendants are: United Technologies Corporation and
Otis Elevator Company (collectively “Otis”); Kone
Corporation and Kone, Inc. (collectively “Kone”); Schindler
Holding Ltd. and Schindler Elevator Corporation
(collectively “Schindler”); ThyssenKrupp AG, ThyssenKrupp
Elevator Corporation, and ThyssenKrupp Elevator Capital
Corporation (collectively “Thyssen”).
5
maintenance services.1 2d Am. Compl. ¶¶ 5, 20-28. The 1
complaint alleges that: 2
(1) Defendants conspired to fix prices for the 3
sale and the continuing maintenance of elevators, 4
in violation of Section 1 of the Sherman Act, 15 5
U.S.C. § 1 (Count I); 6
(2) Defendants conspired to monopolize the 7
markets for the sale and maintenance of elevators, 8
in violation of Section 2 of the Sherman Act, 15 9
U.S.C. § 2 (Count II); and 10
(3) Each defendant unilaterally monopolized 11
and attempted to monopolize the maintenance market 12
for its own elevators by making it difficult for 13
independent maintenance companies (and each other) 14
to service each defendant’s elevators, in 15

-- 5 of 20 --

2 Counts III and IV are against Otis, V and VI, Kone;
VII and VIII, Schindler; and IX and X, Thyssen.
6
violation of Section 2 of the Sherman Act (Counts 1
III – X).2
2
As to the conspiracy claims, plaintiffs allege that, 3
beginning in 2000, defendants agreed: 4
to suppress and eliminate competition in the sale 5
and service of elevators by fixing the price of 6
elevators [and] replacement parts and services, 7
rigging bids for contracts for elevator sales, 8
allocating markets and customers for elevator 9
sales and maintenance services, and rigging bids 10
for contracts for elevator maintenance and repair 11
services. 12
13
2d Am. Compl. ¶ 41. Plaintiffs assert that the conspiracy 14
was undertaken (and its effects felt) in Europe as well as 15
in the United States, and that the conspiracy was effected 16
by price fixing, bid rigging, and collusion to drive 17
independent repair companies out of business. 2d Am. Compl. 18
¶¶ 41-43. The complaint references various investigations 19
into alleged antitrust violations by defendants and their 20
affiliates, one in Italy (1998) and another by the European 21
Commission (2004). 2d Am. Compl. ¶¶ 62-69. 22
As to the unilateral-monopolization claims, plaintiffs 23
assert that each defendant monopolized the maintenance 24
market for its own elevators by such measures as interfering 25

-- 6 of 20 --

7
with delivery of replacement parts and intentionally 1
designing their elevators to require proprietary maintenance 2
tools which are not made available to competing service 3
companies (e.g., embedded computer systems that can only be 4
interfaced with defendant-controlled handheld units). 2d 5
Am. Compl. ¶¶ 50-57. 6
The district court granted defendants’ Rule 12(b)(6) 7
motion to dismiss on the ground that the claims lacked the 8
requisite factual predicate. In re Elevator Antitrust 9
Litig., No. 04 Civ. 1178, 2006 WL 1470994 (S.D.N.Y. May 30, 10
2006). The court denied leave to re-plead and entered 11
judgment in favor of defendants. Id. at *12. This appeal 12
followed. 13
14
II 15
We review the district court’s grant of a Rule 12(b)(6) 16
motion de novo, see In re Tamoxifen Citrate Antitrust 17
Litig., 466 F.3d 187, 200 (2d Cir. 2006), cert. denied, 127 18
S. Ct. 3001 (2007), “draw[ing] all reasonable inferences in 19
plaintiffs’ favor,” Freedom Holdings Inc. v. Spitzer, 357 20
F.3d 205, 216 (2d Cir. 2004) and accepting as true all the 21

-- 7 of 20 --

3 A narrow view of Twombly would have limited its
holding to the antitrust context, or perhaps only to Section
1 claims; but we have concluded that Twombly affects
pleading standards somewhat more broadly. See Iqbal, 490
F.3d at 157 (“We are reluctant to assume that all of the
language of Bell Atlantic[ v. Twombly] applies only to
section 1 allegations based on competitors’ parallel conduct
or, slightly more broadly, only to antitrust cases.”); ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., ___ F.3d ___, No. 05-
5132, 2007 WL 1989336, at *15 n.2 (2d Cir. July 11, 2007)
(“We have declined to read Twombly’s flexible ‘plausibility
standard’ as relating only to antitrust cases.” (citing
Iqbal, 2007 WL 1717803, at *11)).
8
factual allegations in the complaint, see Roth v. Jennings, 1
489 F.3d 499, 501 (2d Cir. 2007). 2
We affirm the district court’s dismissal of the 3
conspiracy claims because plaintiffs are unable to allege 4
facts that would provide “plausible grounds to infer an 5
agreement,” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 6
1965 (2007). “Considerable uncertainty” surrounds the 7
breadth of the Supreme Court’s recent decision in Twombly. 8
Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007). But we 9
need not draw fine lines here; our precedents support 10
application of Twombly to the conspiracy claims asserted 11
under both Section 1 and Section 2.3 To survive a motion to 12
dismiss under Twombly, it is not enough to make allegations 13
of an antitrust conspiracy that are consistent with an 14
unlawful agreement; to be viable, a complaint must contain 15

-- 8 of 20 --

4 The potentially enormous cost of fact discovery was
cited as a factor in Twombly; the Court explained that,
while judges should “be cautious before dismissing an
antitrust complaint in advance of discovery,” they must also
keep in mind that “proceeding to antitrust discovery can be
expensive.” Id. at 1966-67. Accordingly, district courts
“‘retain the power to insist upon some specificity in
pleading before allowing a potentially massive factual
controversy to proceed.’” Id. at 1967 (quoting Associated
Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519,
528 n.17 (1983)).
9
“enough factual matter (taken as true) to suggest that an 1
agreement [to engage in anticompetitive conduct] was made.” 2
Twombly, 127 S. Ct. at 1965 (citation and internal quotation 3
marks omitted). While Twombly does not require heightened 4
fact pleading of specifics, it does require enough facts to 5
“nudge[ plaintiffs’] claims across the line from conceivable 6
to plausible.”4 Twombly, 127 S. Ct. at 1974. 7
Plaintiffs argue that a plausible inference can be 8
drawn from three sources in the complaint: [A] averments of 9
agreements made at some unidentified place and time; [B] 10
averments of parallel conduct; and [C] evidence suggesting 11
anticompetitive wrongdoing by certain defendants in Europe. 12
These allegations are insufficient to establish a plausible 13
inference of agreement, and therefore to state a claim. 14
[A] Conclusory Allegations of Agreement. As the 15
district court observed, the complaint enumerates “basically 16

-- 9 of 20 --

5 Specifically, plaintiffs assert that, in order to
effect the conspiracy, defendants:
(a) Participated in meetings in the United States
and Europe to discuss pricing and market divisions;
(b) Agreed to fix prices for elevators and
services;
(c) Rigged bids for sales and maintenance;
(d) Exchanged price quotes;
(e) Allocated markets for sales and maintenance;
(f) “Collusively” required customers to enter
long-term maintenance contracts; and
(g) Collectively took actions to drive independent
repair companies out of business.
2d Am. Compl. ¶ 43.
10
every type of conspiratorial activity that one could imagine 1
. . . . The list is in entirely general terms without any 2
specification of any particular activities by any particular 3
defendant[; it] is nothing more than a list of theoretical 4
possibilities, which one could postulate without knowing any 5
facts whatever.”5 In re Elevator Antitrust Litig., 2006 WL 6
1470994, at *2-*3 (citing 2d Am. Compl. ¶¶ 43, 78, 85). 7
Such “conclusory allegation[s] of agreement at some 8
unidentified point do[] not supply facts adequate to show 9
illegality.” Twombly, 127 S. Ct. at 1966; cf. Amron v. 10
Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 344 (2d 11
Cir. 2006) (concluding that, in resisting a motion to 12

-- 10 of 20 --

11
dismiss, “bald assertions and conclusions of law will not 1
suffice”). 2
[B] Parallel Conduct. Plaintiffs argue that certain 3
parallel conduct evinces a conspiracy, such as similarities 4
in contractual language, pricing, and equipment design. 2d 5
Am. Compl. ¶¶ 41-42, 61-70. But these allegations do not 6
constitute “plausible grounds to infer an agreement” 7
because, while that conduct is “consistent with conspiracy, 8
[it is] just as much in line with a wide swath of rational 9
and competitive business strategy unilaterally prompted by 10
common perceptions of the market.” Twombly, 127 S. Ct. at 11
1964. Similar contract terms can reflect similar bargaining 12
power and commercial goals (not to mention boilerplate); 13
similar contract language can reflect the copying of 14
documents that may not be secret; similar pricing can 15
suggest competition at least as plausibly as it can suggest 16
anticompetitive conspiracy; and similar equipment design can 17
reflect the state of the art. “An allegation of parallel 18
conduct . . . gets the complaint close to stating a claim, 19
but without some further factual enhancement it stops short 20
of the line between possibility and plausibility of 21

-- 11 of 20 --

6 Plaintiffs allege: that the Italian Antitrust
Authority and the European Commission have initiated
investigations into possible wrongdoing by the defendants,
2d Am. Compl. ¶¶ 62-66; that the European Commission raided
the offices of each defendant and issued a statement that it
“has good reason to believe that the manufacturers
[including . . . Kone Corporation, Schindler Holding, and
ThyssenKrupp AG] may have shared between themselves the
tenders for sale & installation of elevators . . . and may
have colluded to restrict competition with regard to after-
sales services, 2d Am. Compl. ¶ 66; that news reports claim
that UTC and Kone Corporation have admitted wrongdoing by
some of its European employees, 2d Am. Compl. ¶¶ 67-69; and
that (subsequent to the filing of the complaint)
extraordinary fines have been levied by the European
Commission against defendants and their affiliates for
various antitrust violations. [Pl. Ltr. Br. (June 6, 2007)
at 3].
12
entitlement to relief.” Id. at 1966 (internal quotation 1
marks omitted). 2
[C] European Misconduct. Plaintiffs assert that the 3
conspiracy claims are rendered plausible by specific factual 4
allegations of defendants’ apparent anticompetitive 5
misconduct in Europe. (The particulars are set out in the 6
margin.6) The European misconduct is alleged to reflect the 7
existence of a worldwide conspiracy; and even if the 8
misconduct took place only in Europe, it is alleged that the 9
market in elevators is a “global market, such that prices 10

-- 12 of 20 --

7 Plaintiffs allege: that the “effects [of defendants’
conspiracy] were felt by plaintiffs . . . in the United
States,” that “the prices charged in the European market
affect the prices in the United States and vice versa,” and
that pricing in Europe and the United States is
“intertwined.”
13
charged in the European market affect the prices in the 1
United States and vice versa.”7 2d Am. Compl. ¶ 61. 2
Plaintiffs provide an insufficient factual basis for 3
their assertions of a worldwide conspiracy affecting a 4
global market for elevators and maintenance services. 5
Allegations of anticompetitive wrongdoing in Europe--absent 6
any evidence of linkage between such foreign conduct and 7
conduct here--is merely to suggest (in defendants’ words) 8
that “if it happened there, it could have happened here.” 9
And, regarding the nature of the elevator market, plaintiffs 10
offer nothing more than conclusory allegations: for example, 11
there are no allegations of global marketing or fungible 12
products, see Empagran S.A. v. F. Hoffmann-LaRoche, 13
Ltd., 417 F.3d 1267, 1270 (D.C. Cir. 2005), no indication 14
that participants monitored prices in other markets, see 15
Dee-K Enters., Inc. v. Heveafil Sdn. Bhd, 299 F.3d 281, 16
295 (4th Cir. 2002), and no allegations of the actual 17
pricing of elevators or maintenance services in the United 18

-- 13 of 20 --

8 Because the pleadings do not state a claim, we need
not consider the extra-territorial reach of the Sherman Act.
See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796
(1993) (“[T]he Sherman Act applies to foreign conduct that
was meant to produce and did in fact produce some
substantial effect in the United States.”).
14
States or changes therein attributable to defendants’ 1
alleged misconduct. See generally Todd v. Exxon Corp., 275 2
F.3d 191, 200 (2d Cir. 2001) (“To survive a Rule 12(b)(6) 3
motion to dismiss, an alleged product market must bear a 4
rational relation to the methodology courts prescribe to 5
define a market for antitrust purposes--analysis of the 6
interchangeability of use or the cross-elasticity of demand, 7
and it must be plausible.” (citations and internal quotation 8
marks omitted)). Without an adequate allegation of facts 9
linking transactions in Europe to transactions and effects 10
here, plaintiffs’ conclusory allegations do not “nudge[ 11
their] claims across the line from conceivable to 12
plausible.”8 Twombly, 127 S. Ct. at 1974. 13
14
III 15
It is also alleged that each defendant unilaterally 16
employed “exclusionary conduct” to acquire and attempt to 17
acquire a monopoly in the maintenance market for its own 18

-- 14 of 20 --

15
elevators, such as: designing the elevators to prevent 1
servicing by other providers (including each other); 2
refusing to sell competitors the parts, tools, software or 3
diagrams necessary to service the elevators; and obstructing 4
competitors’ attempts to purchase elevator parts. 2d Am. 5
Compl. ¶¶ 51-58. Thus, plaintiffs contend that defendants’ 6
refusal to deal with third-party maintenance providers 7
violates Section 2 of the Sherman Act. 2d Am. Compl. ¶¶ 89, 8
94, 100, 106, 112, 118, 124, 130. But because plaintiffs do 9
not allege that defendants terminated any prior course of 10
dealing--the sole exception to the broad right of a firm to 11
refuse to deal with its competitors--the allegations are 12
insufficient to state a unilateral-monopolization claim. 13
In Verizon Commc’ns v. Trinko, 540 U.S. 398 (2004), the 14
Supreme Court explained that a refusal to deal with 15
competitors does not typically violate § 2: 16
Firms may acquire monopoly power by establishing 17
an infrastructure that renders them uniquely 18
suited to serve their customers. Compelling such 19
firms to share the source of their advantage is in 20
some tension with the underlying purpose of 21
antitrust law . . . . [C]ompelling negotiation 22
between competitors may facilitate the supreme 23
evil of antitrust: collusion. Thus, as a general 24
matter, the Sherman Act “does not restrict the 25
long recognized right of [a] trader or 26
manufacturer engaged in an entirely private 27

-- 15 of 20 --

16
business, freely to exercise his own independent 1
discretion as to parties with whom he will deal.” 2
3
Id. at 407-08 (quoting United States v. Colgate & Co., 250 4
U.S. 300, 307 (1919)); see also MetroNet Servs. Corp. v. 5
Qwest Corp., 383 F.3d 1124, 1131 (9th Cir. 2004). Here, 6
obvious commercial interests would justify a competitor in 7
assuring its own control over the maintenance of the 8
elevators it markets, because maintenance is important in 9
upholding the product’s reputation for reliability and 10
safety (no small considerations when it comes to elevators). 11
Trinko cautioned that the right to refuse to deal, 12
while capacious, is not unlimited: “‘The high value that we 13
have placed on the right to refuse to deal with other firms 14
does not mean that the right is unqualified.’” 540 U.S. at 15
408 (quoting Aspen Skiing Co. v. Aspen Highlands Skiing 16
Corp., 472 U.S. 585, 601 (1985)). Observing that it has 17
been “very cautious” in creating exceptions to the right to 18
refuse to deal, the Trinko Court noted a sole exception, set 19
forth in the earlier case of Aspen Skiing, which Trinko 20
described as situated “at or near the outer boundary of § 2 21
liability.” Id. at 409. That exception applies when a 22
monopolist seeks to terminate a prior (voluntary) course of 23

-- 16 of 20 --

17
dealing with a competitor. Id. (observing that “[t]he 1
refusal to deal alleged in the present case does not fit 2
within the limited exception recognized in Aspen Skiing. 3
The complaint does not allege that Verizon voluntarily 4
engaged in a course of dealing with its rivals . . . .”). 5
The Trinko Court explained the relevance of a prior course 6
of dealing in antitrust analysis: “The unilateral 7
termination of a voluntary (and thus presumably profitable) 8
course of dealing suggested a willingness to forsake short- 9
term profits to achieve an anticompetitive end.” Id. 10
(emphasis in original). 11
Plaintiffs argue that Trinko only applies where there 12
is a “pervasive regulatory scheme,” which diminishes the 13
likelihood of antitrust harm. In arriving at its holding, 14
Trinko did address the telecommunications regulatory scheme, 15
along with at least two other considerations, which 16
militated against creating further exceptions to the right 17
of refusal to deal. Id. at 412-14. But these 18
considerations were not essential to Trinko’s holding. And 19
neither of two other Supreme Court cases dealing with this 20
exception involves a regulated industry. See Aspen Skiing, 21

-- 17 of 20 --

18
472 U.S. at 587 (ski resorts); Eastman Kodak Co. v. Image 1
Technical Servs., 504 U.S. 451 (1992) (photocopiers). 2
The limited nature of this exception to the right of 3
refusal to deal is further supported by Eastman Kodak. 4
After five years working with independent service 5
organizations (“ISOs”) to provide maintenance services on 6
Kodak copiers, Kodak suddenly implemented a policy of 7
refusing to do business with the ISOs; as a result, “ISOs 8
were unable to obtain parts . . . and many were forced out 9
of business.” Id. at 458. The Court concluded that “[i]f 10
Kodak adopted its [refusal to deal] policies as part of a 11
scheme of willful acquisition or maintenance of monopoly 12
power, it will have violated § 2.” Id. at 483. While 13
Eastman Kodak does not expressly say that a Section 2 claim 14
premised on a refusal to deal cannot survive absent a prior 15
course of dealing, it was decided in that fact context, and 16
has been read to support that proposition: 17
[Initially,] Kodak sold copiers that customers 18
could service themselves (or through independent 19
service organizations). Having achieved 20
substantial sales, Kodak then moved to claim all 21
of the repair work for itself. That change had 22
the potential to raise the total cost of copier- 23
plus-service above the competitive level-and . . . 24
above the price that Kodak could have charged had 25

-- 18 of 20 --

9 At argument in district court, an attorney for
plaintiffs suggested that she knew of facts supporting more
specific allegations of misconduct in the United States; but
when pressed as to the substance of those facts, or for an
explanation for why they don’t appear in the complaint, she
replied: “Your honor, I really don’t feel at liberty to
[disclose the information]. It is confidential.”
19
it followed a closed-service model from the 1
outset. 2
3
Schor v. Abbott Labs., 457 F.3d 608, 614 (7th Cir. 2006), 4
cert. denied, 127 S. Ct. 1257 (2007). 5
The unilateral-monopolization claims in this case do 6
not fall within the sole exception to the right of refusal- 7
to-deal: the complaint does not allege that defendants 8
terminated a prior relationship with elevator service 9
providers--a change which (by taking advantage of their 10
customers’ sunk costs) could evince monopolistic motives. 11
12
IV 13
We review a district court’s denial of a motion to 14
amend for abuse of discretion. See Gorman v. Consol. Edison 15
Corp., 488 F.3d 586, 592 (2d Cir. 2007). The district court 16
concluded that plaintiffs’ second amended complaint (at 17
issue here) contains as much specificity as plaintiffs can 18
muster consistent with Federal Rule of Civil Procedure 11.9
19

-- 19 of 20 --

20
In re Elevator Antitrust Litig., No. 04 Civ. 1178, 2006 WL 1
1470994, at *12 (S.D.N.Y. May 30, 2006). Based on the 2
record before us, we cannot say that this conclusion falls 3
outside the district court’s discretion. 4
5
* * * 6
Plaintiffs’ remaining arguments are less substantial 7
and without merit. The judgment of the district court is 8
affirmed. 9

-- 20 of 20 --