Determining the Right Requirements for Restarting the Limitation Period in Private Antitrust Conspiracy Suits

Author:Reid J. Shepard
Position:J.D. Candidate, The University of Iowa College of Law, 2019; B.A., Hamline University, 2015
Pages:957-984
SUMMARY

This Note explores how the Eighth Circuit and other circuits have recently expanded the liability of antitrust defendants significantly by holding that plaintiffs do not need to allege that a conspiracy was ongoing during the four-year statute of limitation period to restart the statute. These decisions undermine both the federal antitrust regime's goal of proactive private enforcement and the... (see full summary)

 
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Determining the Right Requirements for
Restarting the Limitation Period in Private
Antitrust Conspiracy Suits
Reid J. Shepard*
ABSTRACT: This Note explores how the Eighth Circuit and other circuits
have recently expanded the liability of antitrust defendants significantly by
holding that plaintiffs do not need to allege that a conspiracy was ongoing
during the four-year statute of limitation period to restart the statute. These
decisions undermine both the federal antitrust regime’s goal of proactive
private enforcement and the repose and efficiency interests underlying statutes
of limitations. This Note argues that these decisions improperly rely on the
Supreme Court’s RICO precedent and contradict the Court’s pleading
standard precedent. This Note proposes legislative solutions to this problem in
the form of clarification to the “accrual” language in the statutory regime and
through the enactment of a statute of repose. Either solution would provide
clarity to defendants as to the limits of their liability and encourage plaintiffs
to promptly bring their claims.
I.INTRODUCTION ............................................................................. 958
II.ANTITRUST CONSPIRACY SUITS AND STATUTES OF
LIMITATION .................................................................................. 960
A.ANTITRUST CONSPIRACY SUITS ................................................ 960
B.RATIONALES BEHIND PRIVATE TREBLE DAMAGES ..................... 962
C.THE RATIONALES BEHIND STATUTES OF LIMITATIONS .............. 964
1.The Repose Rationale ................................................... 965
2.Promote Efficiency ........................................................ 966
D.CONTINUING VIOLATION DOCTRINE ......................................... 967
III.PROPANE TANK AND LIVING CONSPIRACIES ................................... 969
A.IN RE PRE-FILLED PROPANE TANK ANTITRUST LITIGATION ....... 970
B.THE RICO ANALOGY ............................................................... 972
*
J.D. Candidate, The University of Iowa College of Law, 2019; B.A., Hamline University,
2015. I would like to thank the Editorial Board of Volume 104 of the Iowa Law Review for their
help in editing this Note.
958 IOWA LAW REVIEW [Vol. 104:957
1.The Relationship Between Antitrust Regulation
and RICO ....................................................................... 972
2.Distinctions Between Antitrust Regulation
and RICO ....................................................................... 973
C.TENSION WITH THE ANTITRUST REGIME .................................. 974
1.Pleading Requirements under Twiqbal ........................ 974
2.Impact of Propane Tank on Private Antitrust Suits ...... 976
D.TENSION WITH STATUTORY LIMITATION PERIODS ..................... 977
1.Extending Stale Claims and Preventing Repose ......... 977
2.Chilling Economic Activity ........................................... 978
IV.SOLUTION S: RECONCILING PROPANE TANK WITH THE
ANTITRUST REGIME ...................................................................... 980
A.CLARIFY “ACCRUAL ............................................................... 980
B.ADOPT A STATUTE OF REPOSE .................................................. 981
V.CONCLUSION ................................................................................ 983
I. INTRODUCTION
In 2008, Apple and a group of book publishing companies tried to
challenge Amazon’s place of dominance in the e-book market.1 Their strategy
was to work together to raise the price of e-books. Unfortunately for them,
their actions attracted the attention of no fewer than 33 state governments,
who accused Apple of violating the laws that regulate competition itself: the
antitrust laws. In the end, Apple’s unsuccessful attempt cost the company
$450 million to settle the suit.2
Congress first formally recognized the incredible danger posed to
consumers by businesses joining together to conspire against their interest
when it passed the Sherman Antitrust Act in 1890.3 Private enforcement by
consumers is a cornerstone of the antitrust regime enforcement mechanism.
Coupled with heavy criminal punishments,4 the regime provides consumers
1. Nate Raymond & Jonathan Stempel, Apple Conspired to Fix E-book Prices: U.S. Appeals Court,
REUTERS (June 30, 2015, 9:05 AM), https://www.reuters.com/article/us-apple-ebooks-decision-
idUSKCN0PA1RS20150630.
2. Id.
3. See Sherman Antitrust Act of 1890, ch. 647, 26 Stat. 209 (1890) (codified as amended
at 15 U.S.C. §§ 1–7 (2012)).
4. The Sherman Act’s heavy punishments are given in section 1 of the Act:
Every person who shall make any contract or engage in any combination or
conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on
conviction thereof, shall be punished by fine not exceeding $100,000,000 if a
corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding
10 years, or by both said punishments, in the discretion of the court.
15 U.S.C. § 1.

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