691 F. App'x 389
9th Cir.2017Background
- Bona Fide Conglomerate, Inc. sued several AbilityOne program participants and SourceAmerica, alleging a Section 1 Sherman Act conspiracy to allocate AbilityOne contracts and exclude Bona Fide.
- Complaints included allegations from Jean Robinson (former SourceAmerica GC) that defendants formed a “club/mafia,” specific non-protests and an alleged allocation of Caribbean contracts to Corporate Source.
- Bona Fide asserted that defendants’ employees sat on SourceAmerica’s board and the National Council of SourceAmerica Employers (NCSE) Executive Committee and controlled allocations.
- District court dismissed Bona Fide’s Section 1 claims under Fed. R. Civ. P. 12(b)(6) for failing to plead the required “who, did what, to whom, where, and when.”
- Job Options and Opportunity Village moved to dismiss for lack of Article III standing and for Tucker Act/Federal Claims Court exclusivity; the district court denied those 12(b)(1) motions.
- The Ninth Circuit affirmed dismissal of the Section 1 claims and affirmed denial of the jurisdictional dismissals; Bona Fide’s motion for judicial notice was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint plausibly alleges a Section 1 conspiracy | Bona Fide: Allegations (club/mafia, specific deals, board control) show concerted action to allocate contracts | Defendants: Allegations are conclusory and fail to specify who agreed, where, or when; no plausible parallel conduct | Affirmed dismissal under Rule 12(b)(6); allegations insufficient under Kendall standard |
| Whether allegations identifying specific agreements state when/where agreements were made | Bona Fide: Specific instances (e.g., PRIDE not protesting because of a promised future contract) show agreements | Defendants: Facts fail to state where/when the agreements were consummated | Held insufficient; allegations do not specify time/place of agreement |
| Whether “plus factors” save deficient Section 1 claims | Bona Fide: Plus factors (board membership, overlapping roles) support inference of conspiracy | Defendants: Plus factors only matter if parallel conduct is plausibly alleged first | Court: Plus factors irrelevant because parallel conduct was not plausibly alleged |
| Whether Job Options/Opportunity Village lacked Article III standing or claims belong exclusively in Court of Federal Claims | Bona Fide: Claims of ongoing conspiracy and future contract allocations give Bona Fide injury in fact and standing; claims are not based on a contract with the U.S. | Defendants: Lack of standing; Tucker Act bars suit in district court because claims implicate government contract allocations | Court: Article III standing adequately alleged; Tucker Act inapplicable because claims are not founded on a contract with the United States |
Key Cases Cited
- Kendall v. VISA U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008) (pleading rule: must allege who, did what, to whom, where, and when for antitrust conspiracy)
- In re Musical Instruments and Equipment Antitrust Litig., 798 F.3d 1186 (9th Cir. 2015) (plus-factor analysis applies only when parallel conduct is plausibly alleged)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requires injury in fact, causation, and redressability)
- United States v. Sherwood, 312 U.S. 584 (U.S. 1941) (claims founded upon a contract with the United States implicate Tucker Act principles)