Foundation Files Supreme Court Brief Supporting Conservative Read of Clayton Act

Monday, October 23, 2017 – Mamaroneck, New York – An amicus curie brief was filed today by The Atlantic Legal Foundation with the United States Supreme Court, in support of a Petition for a Writ of Certiorari by Petitioner-Appellee Ferrellgas Partners. Ferrellgas supplies the ubiquitous Blue Rhino prefilled propane tanks, and in 2008 was confronted with antitrust and consumer protection class action lawsuits, after Ferrellgas reduced tank contents from 17 to 15 pounds of propane. The reduced quantity was responsive to increasing propane costs, and Ferrellgas kept wholesale and retail prices unchanged from pre-2008 levels. By October, 2010, all the actions had settled.

Almost six years after the fill reduction, in March, 2014, the Federal Trade Commission (“FTC”) filed an administrative action alleging Ferrellgas attempted to restrain trade by obtaining Walmart’s agreement in 2008 to reduced tank quantity. Without admitting liability, Ferrellgas settled with the FTC in October, 2014.

However, in May, 2014, Ferrellgas was sued again in 37 separate federal district court cases that largely repeated the claims of the original 2008 class action cases and the allegations of the FTC action, under the Sherman and Clayton Acts of Title 15 U.S.C. among other claims. These new cases were consolidated, and in July, 2015, were dismissed because the claims accrued in August, 2008, and the statute of limitations under the Clayton Act, 15 U.S.C. § 15b provides in relevant part: “Any action to enforce any cause of action under section 15 . . . shall be forever barred unless commenced within four years after the cause of action accrued.” The dismissal was appealed to the Eighth Circuit, which affirmed in a 2-1 panel decision, but which later reversed en banc.

The Eighth Circuit en banc reversal adopted a minority position across the circuit courts of appeal, which supports exceptions to the four-year statute of limitations that include the notion that sales that continue beyond the original antitrust violation events, amount to new violations, such that the four-year limitations periods starts anew with each such sale. Analogous exceptions also exist in the D.C., Third, and Eleventh Circuits, which similarly adopt broad interpretations of what acts or injuries amount to a continuing violation. In contrast, a plurality of the Second, Fifth, Sixth, Ninth, and Tenth Circuits have all held that acts subsequent to the original antitrust violation are not continuing violations if they are “the abatable but unabated inertial consequences of some pre-limitations action.”

The Atlantic Legal Foundation filed it brief in support of the Ferrellgas petition for certiorari, and the plain language of the Clayton Act four-year limitation rule, and presents the question of whether, or in what circumstances, a plaintiff adequately pleads a “continuing violation” of the antitrust laws, sufficient to satisfy the statute of limitations, by alleging continuing sales during the limitations period when the alleged price-fixing conspiracy was formed outside the limitations period.

Please download and review Atlantic Legal’s brief here: CLICK HERE TO DOWNLOAD ALF BRIEF

UPDATE – On Monday, January 8, 2018, the U.S. Supreme Court denied the Ferrellgas petition, leaving intact the myriad exceptions to the Clayton Act four-year limitations period that have been created by the minority positions of the Eighth, D.C., Third, and Eleventh Circuits.