     06-3128-cv
     In re Elevator Antitrust Litigation


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

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


                                           1
1              Defendants-Appellees.
2
3    - - - - - - - - - - - - - - - - - - - -x
4

5        Before:           JACOBS, Chief Judge, STRAUB and B.D.
6                          PARKER, Circuit Judges.
7
8
9        Appeal from a judgment entered by the United States

10   District Court for the Southern District of New York

11   (Griesa, J.) on June 6, 2006, granting defendants-appellees’

12   motion to dismiss the complaint and denying leave to re-

13   plead.   We affirm.

14                                  ERIC ALAN ISAACSON (Mark
15                                  Solomon, Christopher M. Burke,
16                                  David W. Mitchell, Tami
17                                  Falkenstein Hennick, on the
18                                  brief), Lerach, Coughlin, Stoia,
19                                  Geller, Rudman & Robbins LLP,
20                                  San Diego, CA, for Plaintiffs-
21                                  Appellants.
22
23                                  Mary Jane Fait, Wolf Haldenstein
24                                  Adler Freeman & Herz, LLP, New
25                                  York, NY, for Plaintiffs-
26                                  Appellants.
27
28                                  Nadeem Faruqi, Antonio Vozzolo,
29                                  Beth A. Keller, Faruqi & Faruqi,
30                                  LLP, New York, NY, for
31                                  Plaintiffs-Appellants.
32
33                                  MARK LEDDY (Leah Brannon, on the
34                                  brief), Cleary Gottlieb Steen &
35                                  Hamilton, LLP, Washington, DC,
36                                  for Defendants-Appellees United
37                                  Technologies Corporation and
38                                  Otis Elevator Company.

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

38   PER CURIAM:

39       This appeal is taken from a judgment of the United

40   States District Court for the Southern District of New York


                                  3
1    (Griesa, J.), dismissing a complaint alleging that defendant

2    elevator companies conspired to engage in anticompetitive

3    conduct in violation of Sections 1 and 2 of the Sherman Act,

4    15 U.S.C. § 1 et seq. (the “conspiracy claims”), and that

5    they unilaterally monopolized and attempted to monopolize

6    the maintenance market for their elevators, in violation of

7    Section 2 of the Sherman Act (the “unilateral-monopolization

8    claims”).   We affirm.   The conspiracy claims provide no

9    plausible ground to support the inference of an unlawful

10   agreement, and the allegations of unilateral monopolization

11   fail to allege a prior course of dealing.   Finally, the

12   district court did not abuse its discretion by refusing

13   leave to amend the complaint.

14

15                                   I

16       Plaintiffs represent a putative class of persons who

17   “purchased elevators and/or elevator maintenance and repair

18   services from defendants,” sellers of elevators and




                                     4
1    maintenance services.1    2d Am. Compl. ¶¶ 5, 20-28.   The

2    complaint alleges that:

3                  (1) Defendants conspired to fix prices for the

4             sale and the continuing maintenance of elevators,

5             in violation of Section 1 of the Sherman Act, 15

6             U.S.C. § 1 (Count I);

7                  (2) Defendants conspired to monopolize the

8             markets for the sale and maintenance of elevators,

9             in violation of Section 2 of the Sherman Act, 15

10            U.S.C. § 2 (Count II); and

11                 (3) Each defendant unilaterally monopolized

12            and attempted to monopolize the maintenance market

13            for its own elevators by making it difficult for

14            independent maintenance companies (and each other)

15            to service each defendant’s elevators, in




         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
1                violation of Section 2 of the Sherman Act    (Counts

2                III – X).2

3        As to the conspiracy claims, plaintiffs allege that,

4    beginning in 2000, defendants agreed:

 5               to suppress and eliminate competition in the sale
 6               and service of elevators by fixing the price of
 7               elevators [and] replacement parts and services,
 8               rigging bids for contracts for elevator sales,
 9               allocating markets and customers for elevator
10               sales and maintenance services, and rigging bids
11               for contracts for elevator maintenance and repair
12               services.
13
14   2d Am. Compl. ¶ 41.       Plaintiffs assert that the conspiracy

15   was undertaken (and its effects felt) in Europe as well as

16   in the United States, and that the conspiracy was effected

17   by price fixing, bid rigging, and collusion to drive

18   independent repair companies out of business.       2d Am. Compl.

19   ¶¶ 41-43.    The complaint references various investigations

20   into alleged antitrust violations by defendants and their

21   affiliates, one in Italy (1998) and another by the European

22   Commission (2004).       2d Am. Compl. ¶¶ 62-69.

23       As to the unilateral-monopolization claims, plaintiffs

24   assert that each defendant monopolized the maintenance

25   market for its own elevators by such measures as interfering


         2
           Counts III and IV are against Otis, V and VI, Kone;
     VII and VIII, Schindler; and IX and X, Thyssen.
                                       6
1    with delivery of replacement parts and intentionally

2    designing their elevators to require proprietary maintenance

3    tools which are not made available to competing service

4    companies (e.g., embedded computer systems that can only be

5    interfaced with defendant-controlled handheld units).     2d

6    Am. Compl. ¶¶ 50-57.

7        The district court granted defendants’ Rule 12(b)(6)

8    motion to dismiss on the ground that the claims lacked the

9    requisite factual predicate.   In re Elevator Antitrust

10   Litig., No. 04 Civ. 1178, 2006 WL 1470994 (S.D.N.Y. May 30,

11   2006).   The court denied leave to re-plead and entered

12   judgment in favor of defendants.   Id. at *12.   This appeal

13   followed.

14

15                               II

16       We review the district court’s grant of a Rule 12(b)(6)

17   motion de novo, see In re Tamoxifen Citrate Antitrust

18   Litig., 466 F.3d 187, 200 (2d Cir. 2006), cert. denied, 127

19   S. Ct. 3001 (2007), “draw[ing] all reasonable inferences in

20   plaintiffs’ favor,” Freedom Holdings Inc. v. Spitzer, 357

21   F.3d 205, 216 (2d Cir. 2004) and accepting as true all the




                                    7
1    factual allegations in the complaint, see Roth v. Jennings,

2    489 F.3d 499, 501 (2d Cir. 2007).

3        We affirm the district court’s dismissal of the

4    conspiracy claims because plaintiffs are unable to allege

5    facts that would provide “plausible grounds to infer an

6    agreement,” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,

7    1965 (2007).   “Considerable uncertainty” surrounds the

8    breadth of the Supreme Court’s recent decision in Twombly.

9    Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007).    But we

10   need not draw fine lines here; our precedents support

11   application of Twombly to the conspiracy claims asserted

12   under both Section 1 and Section 2.3   To survive a motion to

13   dismiss under Twombly, it is not enough to make allegations

14   of an antitrust conspiracy that are consistent with an

15   unlawful agreement; to be viable, a    complaint must contain


         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
1    “enough factual matter (taken as true) to suggest that an

2    agreement [to engage in anticompetitive conduct] was made.”

3    Twombly, 127 S. Ct. at 1965 (citation and internal quotation

4    marks omitted).   While Twombly does not require heightened

5    fact pleading of specifics, it does require enough facts to

6    “nudge[ plaintiffs’] claims across the line from conceivable

7    to plausible.”4   Twombly, 127 S. Ct. at 1974.

8        Plaintiffs argue that a plausible inference can be

9    drawn from three sources in the complaint: [A] averments of

10   agreements made at some unidentified place and time; [B]

11   averments of parallel conduct; and [C] evidence suggesting

12   anticompetitive wrongdoing by certain defendants in Europe.

13   These allegations are insufficient to establish a plausible

14   inference of agreement, and therefore to state a claim.

15       [A]   Conclusory Allegations of Agreement.   As the

16   district court observed, the complaint enumerates “basically


         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
1    every type of conspiratorial activity that one could imagine

2    . . . .   The list is in entirely general terms without any

3    specification of any particular activities by any particular

4    defendant[; it] is nothing more than a list of theoretical

5    possibilities, which one could postulate without knowing any

6    facts whatever.”5   In re Elevator Antitrust Litig., 2006 WL

7    1470994, at *2-*3 (citing 2d Am. Compl. ¶¶ 43, 78, 85).

8    Such “conclusory allegation[s] of agreement at some

9    unidentified point do[] not supply facts adequate to show

10   illegality.”   Twombly, 127 S. Ct. at 1966; cf. Amron v.

11   Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 344 (2d

12   Cir. 2006) (concluding that, in resisting a motion to




         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
1    dismiss, “bald assertions and conclusions of law will not

2    suffice”).

3        [B]   Parallel Conduct.   Plaintiffs argue that certain

4    parallel conduct evinces a conspiracy, such as similarities

5    in contractual language, pricing, and equipment design.           2d

6    Am. Compl. ¶¶ 41-42, 61-70.     But these allegations do not

7    constitute “plausible grounds to infer an agreement ”

8    because, while that conduct is “consistent with conspiracy,

9    [it is] just as much in line with a wide swath of rational

10   and competitive business strategy unilaterally prompted by

11   common perceptions of the market.”       Twombly, 127 S. Ct. at

12   1964.   Similar contract terms can reflect similar bargaining

13   power and commercial goals (not to mention boilerplate);

14   similar contract language can reflect the copying of

15   documents that may not be secret; similar pricing can

16   suggest competition at least as plausibly as it can suggest

17   anticompetitive conspiracy; and similar equipment design can

18   reflect the state of the art.        “An allegation of parallel

19   conduct . . . gets the complaint close to stating a claim,

20   but without some further factual enhancement it stops short

21   of the line between possibility and plausibility of




                                     11
1    entitlement to relief.”     Id. at 1966 (internal quotation

2    marks omitted).

3         [C]     European Misconduct.    Plaintiffs assert that the

4    conspiracy claims are rendered plausible by specific factual

5    allegations of defendants’ apparent anticompetitive

6    misconduct in Europe.     (The particulars are set out in the

7    margin.6 )   The European misconduct is alleged to reflect the

8    existence of a worldwide conspiracy; and even if the

9    misconduct took place only in Europe, it is alleged that the

10   market in elevators is a “global market, such that prices




          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
1    charged in the European market affect the prices in the

2    United States and vice versa.”7   2d Am. Compl. ¶ 61.

3        Plaintiffs provide an insufficient factual basis for

4    their assertions of a worldwide conspiracy affecting a

5    global market for elevators and maintenance services.

6    Allegations of anticompetitive wrongdoing in Europe--absent

7    any evidence of linkage between such foreign conduct and

8    conduct here--is merely to suggest (in defendants’ words)

9    that “if it happened there, it could have happened here.”

10   And, regarding the nature of the elevator market, plaintiffs

11   offer nothing more than conclusory allegations: for example,

12   there are no allegations of global marketing or fungible

13   products, see Empagran S.A. v. F. Hoffmann-LaRoche,

14   Ltd., 417 F.3d 1267, 1270 (D.C. Cir. 2005), no indication

15   that participants monitored prices in other markets, see

16   Dee-K Enters., Inc. v. Heveafil Sdn. Bhd, 299 F.3d 281,

17   295 (4th Cir. 2002), and no allegations of the actual

18   pricing of elevators or maintenance services in the United



         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
1    States or changes therein attributable to defendants’

2    alleged misconduct.   See generally Todd v. Exxon Corp., 275

3    F.3d 191, 200 (2d Cir. 2001) (“To survive a Rule 12(b)(6)

4    motion to dismiss, an alleged product market must bear a

5    rational relation to the methodology courts prescribe to

6    define a market for antitrust purposes--analysis of the

7    interchangeability of use or the cross-elasticity of demand,

8    and it must be plausible.” (citations and internal quotation

9    marks omitted)).   Without an adequate allegation of facts

10   linking transactions in Europe to transactions and effects

11   here, plaintiffs’ conclusory allegations do not “nudge[

12   their] claims across the line from conceivable to

13   plausible.”8   Twombly, 127 S. Ct. at 1974.

14

15                                III

16       It is also alleged that each defendant unilaterally

17   employed “exclusionary conduct” to acquire and attempt to

18   acquire a monopoly in the maintenance market for its own



         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
1    elevators, such as: designing the elevators to prevent

2    servicing by other providers (including each other);

3    refusing to sell competitors the parts, tools, software or

4    diagrams necessary to service the elevators; and obstructing

5    competitors’ attempts to purchase elevator parts.     2d Am.

6    Compl. ¶¶ 51-58.   Thus, plaintiffs contend that defendants’

7    refusal to deal with third-party maintenance providers

8    violates Section 2 of the Sherman Act.   2d Am. Compl. ¶¶ 89,

9    94, 100, 106, 112, 118, 124, 130.   But because plaintiffs do

10   not allege that defendants terminated any prior course of

11   dealing--the sole exception to the broad right of a firm to

12   refuse to deal with its competitors--the allegations are

13   insufficient to state a unilateral-monopolization claim.

14       In Verizon Commc’ns v. Trinko, 540 U.S. 398 (2004), the

15   Supreme Court explained that a refusal to deal with

16   competitors does not typically violate § 2:

17            Firms may acquire monopoly power by establishing
18            an infrastructure that renders them uniquely
19            suited to serve their customers. Compelling such
20            firms to share the source of their advantage is in
21            some tension with the underlying purpose of
22            antitrust law . . . . [C]ompelling negotiation
23            between competitors may facilitate the supreme
24            evil of antitrust: collusion. Thus, as a general
25            matter, the Sherman Act “does not restrict the
26            long recognized right of [a] trader or
27            manufacturer engaged in an entirely private


                                  15
1             business, freely to exercise his own independent
2             discretion as to parties with whom he will deal.”
3
4    Id. at 407-08 (quoting United States v. Colgate & Co., 250

5    U.S. 300, 307 (1919)); see also MetroNet Servs. Corp. v.

6    Qwest Corp., 383 F.3d 1124, 1131 (9th Cir. 2004).    Here,

7    obvious commercial interests would justify a competitor in

8    assuring its own control over the maintenance of the

9    elevators it markets, because maintenance is important in

10   upholding the product’s reputation for reliability and

11   safety (no small considerations when it comes to elevators).

12       Trinko cautioned that the right to refuse to deal,

13   while capacious, is not unlimited: “‘The high value that we

14   have placed on the right to refuse to deal with other firms

15   does not mean that the right is unqualified.’” 540 U.S. at

16   408 (quoting Aspen Skiing Co. v. Aspen Highlands Skiing

17   Corp., 472 U.S. 585, 601 (1985)).   Observing that it has

18   been “very cautious” in creating exceptions to the right to

19   refuse to deal, the Trinko Court noted a sole exception, set

20   forth in the earlier case of Aspen Skiing, which Trinko

21   described as situated “at or near the outer boundary of § 2

22   liability.”   Id. at 409.   That exception applies when a

23   monopolist seeks to terminate a prior (voluntary) course of



                                   16
1    dealing with a competitor.   Id. (observing that “[t]he

2    refusal to deal alleged in the present case does not fit

3    within the limited exception recognized in Aspen Skiing.

4    The complaint does not allege that Verizon voluntarily

5    engaged in a course of dealing with its rivals . . . .”).

6    The Trinko Court explained the relevance of a prior course

7    of dealing in antitrust analysis: “The unilateral

8    termination of a voluntary (and thus presumably profitable)

9    course of dealing suggested a willingness to forsake short-

10   term profits to achieve an anticompetitive end.”       Id.

11   (emphasis in original).

12       Plaintiffs argue that Trinko only applies where there

13   is a “pervasive regulatory scheme,” which diminishes the

14   likelihood of antitrust harm.        In arriving at its holding,

15   Trinko did address the telecommunications regulatory scheme,

16   along with at least two other considerations, which

17   militated against creating further exceptions to the right

18   of refusal to deal.   Id. at 412-14.       But these

19   considerations were not essential to Trinko’s holding.        And

20   neither of two other Supreme Court cases dealing with this

21   exception involves a regulated industry.       See Aspen Skiing,




                                     17
1    472 U.S. at 587 (ski resorts); Eastman Kodak Co. v. Image

2    Technical Servs., 504 U.S. 451 (1992) (photocopiers).

3        The limited nature of this exception to the right of

4    refusal to deal is further supported by Eastman Kodak.

5    After five years working with independent service

6    organizations (“ISOs”) to provide maintenance services on

7    Kodak copiers, Kodak suddenly implemented a policy of

8    refusing to do business with the ISOs; as a result, “ISOs

9    were unable to obtain parts . . . and many were forced out

10   of business.”   Id. at 458.   The Court concluded that “[i]f

11   Kodak adopted its [refusal to deal] policies as part of a

12   scheme of willful acquisition or maintenance of monopoly

13   power, it will have violated § 2.”   Id. at 483.   While

14   Eastman Kodak does not expressly say that a Section 2 claim

15   premised on a refusal to deal cannot survive absent a prior

16   course of dealing, it was decided in that fact context, and

17   has been read to support that proposition:

18            [Initially,] Kodak sold copiers that customers
19            could service themselves (or through independent
20            service organizations). Having achieved
21            substantial sales, Kodak then moved to claim all
22            of the repair work for itself. That change had
23            the potential to raise the total cost of copier-
24            plus-service above the competitive level-and . . .
25            above the price that Kodak could have charged had



                                   18
1             it followed a closed-service model from the
2             outset.
3
4    Schor v. Abbott Labs., 457 F.3d 608, 614 (7th Cir. 2006),

5    cert. denied, 127 S. Ct. 1257 (2007).

6        The unilateral-monopolization claims in this case do

7    not fall within the sole exception to the right of refusal-

8    to-deal: the complaint does not allege that defendants

9    terminated a prior relationship with elevator service

10   providers--a change which (by taking advantage of their

11   customers’ sunk costs) could evince monopolistic motives.

12

13                                IV

14       We review a district court’s denial of a motion to

15   amend for abuse of discretion.    See Gorman v. Consol. Edison

16   Corp., 488 F.3d 586, 592 (2d Cir. 2007).    The district court

17   concluded that plaintiffs’ second amended complaint (at

18   issue here) contains as much specificity as plaintiffs can

19   muster consistent with Federal Rule of Civil Procedure 11.9


         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
1   In re Elevator Antitrust Litig., No. 04 Civ. 1178, 2006 WL

2   1470994, at *12 (S.D.N.Y. May 30, 2006).   Based on the

3   record before us, we cannot say that this conclusion falls

4   outside the district court’s discretion.

5

6                           *     *     *

7       Plaintiffs’ remaining arguments are less substantial

8   and without merit.   The judgment of the district court is

9   affirmed.




                                 20
