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Justices Reject Antitrust Case Over BMW, Daimler, VW ‘Arms Race’

June 21, 2022, 1:38 PM

The US Supreme Court declined Tuesday to revive claims that BMW AG, Daimler AG, and Volkswagen AG conspired to avoid a technological “arms race,” passing on the chance to rethink how close calls are analyzed in antitrust cases.

The justices said they won’t review a ruling by the US Court of Appeals for the Ninth Circuit, which held that “rational, legal business behavior” more than adequately explained the choice by all three German auto giants to delay investing in electric cars.

The appeals court in October also rejected allegations that the companies acted in concert to adopt standard fuel tank sizes, coordinate suppliers of parts and steel, and fund scientific studies promoting “clean diesel” technology over electric power.

It cited claims by the automakers that they delayed electric vehicle investments because they’d already sunk too much into clean diesel, which they viewed as a viable alternative. The “few specific examples” of outright coordination were “simply too narrow” to establish a wide-ranging scheme, the court found at the time.

The dealerships leading the case asked the Supreme Court to revive it in April. The ruling deepened a circuit split among federal appeals courts about “where to draw the line between conduct that can possibly (not enough), probably (more than enough), and plausibly (just right)” lead to an inference of unlawful collusion, they argued.

Four circuits have held that courts shouldn’t “weigh competing inferences” about whether an alleged scheme was justified by valid business concerns—based solely on the initial allegations—but should instead wait to assess what the evidence proves, the dealerships said.

Three circuits, meanwhile, say courts should decide up front if “ambiguous conduct” is more plausibly explained as lawful rather than anti-competitive, according to their petition.

“Despite the court’s best efforts at clarifying the pleading standard for antitrust conspiracies, the courts of appeal are deeply divided,” the filing said.

The automakers waived their right to respond.

Justice Stephen G. Breyer took no part in the decision to turn down the case.

They were represented in the lower courts by Latham & Watkins LLP, Quinn Emanuel Urquhart & Sullivan LLP, Squire Patton Boggs (US) LLP, and Sullivan & Cromwell LLP. The dealerships were represented by Burns Charest LLP, Zelle LLP, and 10 other firms.

The case is Audubon Imports LLC v. BMW AG, U.S., No. 21-1382, cert. denied 6/21/22.

To contact the reporter on this story: Mike Leonard in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Andrew Harris at