Chapter 7
A. Certain Defenses and Exemptions
1. Instruction 1: Statute of Limitations
The statute of limitations for the antitrust laws does not permit
recovery of damages for any injuries sustained by plaintiff prior to [date
X]. If you find that plaintiff suffered injuries spanning both before and
after [date X], then you must apportion the damages between the two
periods and you may award damages only for the portion of the injuries
suffered after [date X]. When apportioning the damages between the two
periods, you should be guided by the same principles I explained to you
earlier. That is, you are permitted to make just and reasonable estimates in
apportioning plaintiff’s damages. You are not required to apportion
damages with absolute mathematical certainty or precision. However, the
apportionment of damages must have a reasonable basis in the evidence.
If you find that you cannot apportion the damages between the two periods
without relying on guesswork or speculation, then you may not award
damages at all.
The date to be inserted is four years prior to the filing of the complaint, as
provided in § 4B of the Clayton Act, 15 U.S.C.§ 15b. The second paragraph
should be provided only where the circumstances warrant that instruction. See
Chapter VI.B.3 (Basis for Calculating Damages).
This instruction may r equire modification for cases involving the speculative-
damages exception to the statute of limitations announced in Zenith Radio Corp.
v. Hazeltine Research, 401 U.S. 321, 338 (1971).
If there is an issue of fraudulent concealment, then the fraudulent
concealment instruction, at part A.1 of this chapter, should be given, and this
instruction should be modified accordingly.
332 Model Jury Instructions in Civil Antitrust Cases
2. Instruction 2: Fraudulent Concealment
The statute of limitations bars any recovery by plaintiff for injuries
that occurred before [date X], which is four years prior to the date plaintiff
filed this lawsuit.1 However, there is an exception to this rule called
“fraudulent concealment.” If plaintiff proves that the [alleged conduct,
e.g., conspiracy to fix prices] was fraudulently concealed, plaintiff may
recover for injuries that occurred before [date X].
To establish fraudulent concealment, plaintiff must prove each of the
following three elements2 by a preponderance of the evidence:3
(1) defendant [or any member of the conspiracy] actively concealed
the [alleged conduct] that caused plaintiff’s injuries;4
(2) plaintiff did not discover the alleged conduct before [date X];5 and
(3) plaintiff exercised reasonable diligence in the circumstances and
still did not discover the alleged conduct.
To establish the first element of fraudulent concealment—active
concealmentplaintiff must show affirmative acts of concealment. Mere
silence does not constitute fraudulent concealment.6 Rather, plaintiff must
prove that defendant took affirmative steps to prevent plaintiff from
learning about the [alleged conduct]. Plaintiff alleges that defendant
committed the following types of affirmative acts to conceal the alleged
conspiracy: [list affirmative acts].7
Defendant is responsible for its own acts of concealment as well as
any acts of concealment committed by coconspirators as long as the act of
concealment occurred during the course and in furtherance of the
conspiracy.8 Plaintiff need not establish concealment on a victim-by-
victim basis; affirmative acts of concealment generally are considered to
have an industry-wide effect.9
In considering the third element of fraudulent concealment, if facts
were reasonably available to plaintiff that should have aroused suspicion
that the [alleged conduct] had occurred, plaintiff must have made a
reasonable investigation to discover the [alleged conduct]. Parallel
conduct or parallel pricing by itself does not give rise to the duty to
investigate.10 If you conclude that a reasonable investigation would not
have uncovered the [alleged conduct], then you must find that the third
element has been established. If, under all the circumstances of the case,
no suspicious facts were reasonably available to plaintiff, no investigation
was required.11

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