In what appears to be a reluctant decision mandated by Supreme Court precedent, Judge Merritt, joined by Judges Clay and Griffin, recognize the insurmountable obstacles that a Plaintiff may face in alleging claims to survive a motion to dismiss.

In New Albany Tractor, Inc. v. Louisville Tractor, Inc., No. 10-5100 (6th Cir. June 21, 2011) (PDF), the Plaintiff alleged violations of the Robinson-Patman Act, which prohibits a seller from selling the same product to two different buyers at different prices.  Plaintiff's claims were based on a discriminatory pricing scheme by the two Defendants and relied on the "indirect purchaser doctrine," to allege that one Defendant was a "dummy" or "strawman" operation that was controlled by the other.  The district court for the Western District of Kentucky dismissed Plaintiff's Robinson-Patman claim, finding insufficient Plaintiff's allegation that one Defendant was a "dummy" operation because Plaintiff did not allege sufficient facts to indicate that one Defendant set or controlled the other Defendant's resale price.

In upholding the district court's dismissal of the Complaint, the Sixth Circuit stated that "[t]he plaintiff apparently can no longer obtain the factual detail necessary because the language of Iqbal specifically directs that no discovery may be conducted in cases such as this, even when the information...is solely within the purview of the defendant or a third party...."  Demonstrating an apparent reluctance to uphold the dismissal of the Complaint, the Court went out of its way to note that it was bound by the Iqbal decision of the Supreme Court (PDF).  The Panel also recognized that in the pre-Twombly (PDF) and pre-Iqbal era, courts would probably have allowed this case to proceed so that Plaintiff could conduct discovery in order to gather the pricing information that was solely retained within the accounting system of Defendants.  Adding to Plaintiff's defeat, the Sixth Circuit affirmed the dismissal with prejudice because even though Plaintiff had additional time to come up with more specific evidence, without discovery from Defendants it was unable to do so.