Scope and Application of “Continuing Violation Doctrine” at Issue
CHICAGO – (October 18 , 2017) — DRI-The Voice of the Defense Bar has filed an amicus brief in the U.S. Supreme Court supporting the certiorari petition in Ferrellgas Partners, L.P. v. Morgan-Larson, LLC, No. 17-441. The brief was filed through DRI’s Center for Law and Public Policy.
The Clayton Antitrust Act’s four-year statute of limitations governs private-party treble damages suits alleging that a defendant violated federal antitrust laws. That provision states that “Any action to enforce any cause of action [for violation of federal antitrust laws] shall be forever barred unless commenced within four years after the cause of action accrued.” 15 U.S.C. § 15b.
But in a 5–4 en banc decision, the Eighth Circuit held in Ferrellgas Partners that despite this strongly worded statute of limitations, the “continuing violation doctrine” allows plaintiffs in putative class-action litigation filed in 2014 to proceed with claims seeking treble damages for an alleged price-fixing conspiracy successfully completed in 2008.
An earlier wave of litigation alleging the same conspiracy―concerning defendants’ fill-level reductions in exchangeable propane gas tanks sold to consumers for use in residential heaters and barbeque grills―was settled in 2010. According to the en banc majority, each sale to the plaintiffs in a price-fixing conspiracy starts the four-year limitations period running again. The four dissenting Eighth Circuit judges, however, contended that a continuing violation based on sales requires a plausible showing of a live, ongoing conspiracy sometime during the limitations period to survive a motion to dismiss.
DRI’s amicus brief urges the Court to grant review in order to resolve lower courts’ confusion and disagreement by clarifying or refining the continuing violation doctrine in private-party antitrust suits.
DRI explains that this issue implicates at least three core civil justice objectives: (i) strict enforcement of statutory limitations periods for filing private-party damages suits; (ii) dismissal of civil actions at the pleadings stage for failure to allege sufficient facts stating a plausible claim for relief; and (iii) class-action fairness, especially prior to certification.
DRI’s brief discusses why statutes of limitations promote civil justice; why the antitrust statute of limitations serves the public interest, regardless of whether there is merit to antitrust allegations; why an expansive continuing violation exception would defeat the purpose of the antitrust statute of limitations; and why any continuing violation exception must comply with the Supreme Court’s existing standards for pleading plausible claims for relief.
Amicus brief author Lawrence S. Ebner, founder of Capital Appellate Advocacy PLLC in Washington, D.C. and a fellow of the American Academy of Appellate Lawyers, serves as Chair of the DRI Amicus Committee. He is available for interview or expert comment through the contact information above. The complete text of the DRI brief can be found here.
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