Sonal Mittal Tolman
Wilson Sonsini Goodrich & Rosati
On September 19, 2017, Judge James Donato ruled on D-Link Systems’ motion to dismiss in FTC v. D-Link Sys., 2017 U.S. Dist. LEXIS 152319 (N.D. Cal. Sep. 19, 2017). The Court denied D-Link’s motion to dismiss several deception claims under Section 5 of the FTC Act, while dismissing the FTC’s unfairness claim, and other deception claims, with leave to amend.
D-Link sells routers and IP cameras that it markets as having good data security and safeguards such as “the latest wireless security features to help prevent unauthorized access” and “the best possible encryption.” Id. at *2. The FTC alleges that D-Link’s products were in fact subject to “widely known and reasonably foreseeable risks of unauthorized access” and other security vulnerabilities, that D-Link failed to maintain the confidentiality of the private key it used to validate software updates, and that D-Link failed to deploy “free software, available since at least 2008, to secure users’ mobile app login credentials.” Id.
The FTC filed a complaint against D-Link for deceptive and unfair marketing practices in violation of Section 5 of the FTC Act. Id. at *1. D-Link moved to dismiss the FTC’s claims under Federal Rules of Civil Procedure 12(b)(6), 8(a), and 9(b). Id. at *3. Judge Donato denied D-Link’s motion with respect to three of the FTC’s deception counts, while dismissing two other deception counts with leave to amend. Id. at *6-10. In so doing, Judge Donato held that deception claims under Section 5 are claims that sound in fraud and are therefore subject to the heightened pleading standards of Rule 9(b). Id. at *3-5. Judge Donato also observed that Rule 9(b) might apply to Section 5 unfairness claims in some circumstances, but separately dismissed the FTC’s unfairness count for failure to plead any actual injury to consumers. Id. at *5-6, *14-17.
Rule 9(b) and Section 5
The Ninth Circuit has not yet determined whether Rule 9(b) applies to deception claims under Section 5 of the FTC Act. Id. at *3-*4. The FTC argued that Rule 9(b) should not apply to its deception claims because “[u]nlike the elements of common law fraud, the FTC need not prove scienter, reliance, or injury to establish a § 5 violation.” Id. at *4. The Court found that argument unpersuasive (id.), explaining that “the gravamen of the deception claims is that [D-Link] misled consumers about the data safety and security features of its products,” and because that core allegation sounds in fraud, these claims must meet the pleading standards of Rule 9(b). Id. at *3-*5.
The Court largely relied on the decision in Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003), which requires a claim to meet the heightened pleading standards of Rule 9(b) whenever a defendant is alleged to have engaged in fraudulent conduct, even if fraud is not necessarily an element of the claim. Id. at *3-*4. It observed that Vess articulated this rule in the context of the California Unfair Competition Law (“UCL”), which, like Section 5, prohibits deceptive practices without requiring fraud as an element. Id. at *4. Because Vess and other Ninth Circuit decisions, which found UCL and similar consumer claims rooted in false or misleading statements were subject to Rule 9(b), the Court held Rule 9(b) applies to the FTC’s deception claims in this case. Id. at *4-*5. The Court joins several other district courts that have reached the same conclusion. Id. at *5 (citing FTC v. Lights of Am., Inc., 760 F. Supp. 2d 848, 852-855 (C.D. Cal. Dec. 17, 2010); FTC v. ELH Consulting, LLC, No. CV 12-02246-PHX-FJM, 2013 WL 4759267, at *1 (D. Ariz. Sept. 4, 2013); FTC v. Swish Marketing, No. C-09-03814-RS, 2010 WL 653486, at *2-4 (N.D. Cal. Feb. 22, 2010)).
The Court also considered whether Rule 9(b) applies to the FTC’s unfairness claim. Id. at *5-*6. Although the Court observed there is “little flavor of fraud” in the formal elements of a Section 5 unfairness claim (id. at *5), the FTC expressly stated that “the core facts [of its deception and unfairness claims] overlap, absolutely.” Id. In light of that overlap, the Court found “a distinct possibility that Rule 9(b) might apply to the unfairness claim.” Id. at *6. However, because the Court found that claim did not pass muster under Rule 8, it ultimately held the issue of whether Rule 9(b) applies was “not ripe for resolution” and will depend “how the unfairness claim is stated, if the FTC chooses to amend.” Id.
D-Link challenged the sufficiency of the five deception claims in the FTC’s complaint under Rule 9(b). See id.
Applying Rule 9(b), the Judge Donato found three counts, which allege that D-Link misrepresented the data security and protections its devices provide, state plausible claims because the complaint’s allegations provide the “‘who, what, when, where, and how of the misconduct charged.’” Id. at *7. (citing Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010)). For example, The FTC alleges that D-Link’s routers and IP cameras “do not protect against ‘critical and widespread web application vulnerabilities’ identified since 2007, including ‘“hard-coded” user credentials,’ ‘command injection flaws’ and ‘other backdoors.’” Id. at *7. The Court found these allegations sufficiently explain why D-Link’s statements about data security are deceptive. Id. The Court also rejected D-Link’s arguments that Rule 9(b) requires the complaint to identify the exact router and IP camera models with the alleged security flaws and to allege specific consumer reliance on the statements at issue. Id. at *7-*8.
The remaining two deception counts are centered on alleged misrepresentations in promotional materials for IP cameras and graphic user interfaces for routers. Id. at *9. But the only dated exhibit in support of these claims is one brochure for an IP camera that advertises a “surveillance camera” that otherwise “contains no representations at all about digital security.” Id. The complaint alleges other material in support of these counts but fails to identify the dates when any allegedly deceptive statements were made. Id. at *9-*10. Judge Donato therefore held these claims fail under Rule 9(b) and dismissed them with leave to amend. Id. at *9-10.
D-Link raised several broad objections to the FTC’s unfairness claim and challenged the sufficiency of that claim under Rule 8. The Court rejected D-Link’s broad challenges but found the FTC fails to adequately allege any actual consumer injury as needed to state an unfairness claim under Section 5.
D-Link first argued that the FTC lacks regulatory authority over general data security practices. Id. at *10. The Court wrote that this type of challenge “has been consistently rejected by other courts, with good reason.” Id. It explained that Section 5 is intentionally open-ended and that the FTC has broad regulatory authority to prevent unfair practices. Id. at *10-11 (“[T]he fact that data security is not expressly enumerated as within the FTC’s enforcement powers is of no moment to the exercise of its statutory authority.”).D-Link also attempted to argue that the FTC must give persons “fair notice” of standards for data security practices before it can pursue enforcement actions against them through the courts or at the Commission. Id. at *11.
But Judge Donato made clear that “[a]gencies are not required to anticipate problems and promulgate general rules before performing their statutory duties” (id. at *11) and that “to require the FTC in all cases to adopt rules or standards before responding to data security issues faced by consumers is impractical and inconsistent with governing law.” Id. at *12 (citing Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 201-02 (1947); NLRB v. Bell Aerospace Co., 416 U.S. 267, 292 (1974)). The Court also rejected D-Link’s third broad challenge to the FTC’s unfairness claim: that the FTC failed to plead a claim because Section 5 applies to current unfair practices while the FTC’s allegations that D-Link “has failed” or “have failed” to take certain actions are pleaded “in the past tense.” Id. at *13. Judge Donato explained that these allegations are best construed as referring to practices that started in the past and continue into the present. Id. at *13-14.
While the Court rejected these broad challenges, it agreed with D-Link that the claim is insufficient under Rule 8. Id. at *14-17. Section 5(n) defines an unfair act or practice as one that “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” 15 U.S.C. § 45(n). The Court held the FTC failed to allege any actual consumer injury in the form of lost money or exposure of sensitive data and therefore failed to state a claim. D-Link Sys., Id. at *14-15.
According to the Court, the FTC failed to identify any specific incident where a consumer’s information was exposed, a device was compromised, or a consumer suffered “even simple annoyance and inconvenience from the alleged security flaws in the [D-Link] devices.” Id. at *15. Rather, the Court found “the sum total of the [FTC’s] harm allegations, … make out a mere possibility of injury at best.” Id. at *14-15. On that note, Judge Donato explained the FTC’s complaint stands in sharp contrast to other data security complaints that have survived motions to dismiss. Id. at *15-16 (citing FTC v. Wyndham Worldwide, 799 F.3d 236 (3d. Cir. 2015), where the complaint alleged theft of the personal information of hundreds of thousands of consumers and over $10.6 million in fraudulent charges).
Judge Donato also observed that if the FTC tied the unfairness claim to the representations that underlie the deception claims, the injury element of its unfairness claim might be more colorable because the purchase of a device that fails to be reasonably secure, or as secure as advertised, “would likely be in the ballpark of a ‘substantial injury.’” Id. at *16. Based on this analysis, the Court dismissed the unfairness claim, while granting the FTC leave to amend. Id. at *17.
Sidley Austin LLP
On September 19, 2017, the Tenth Circuit affirmed the Western District of Oklahoma’s grant of Cox Communications’ (“Cox”) Rule 50(b) judgment as a matter of law motion in a tying case. In re: Cox Enterprises, Inc. (“Cox II”), No. 15-6218, 2017 WL 4127706 (10th Cir. Sept. 19, 2017). In the case below, the jury had found that Cox violated Section 1 of the Sherman Act by illegally tying cable services to cable set-top box rentals. The District Court overturned the jury’s finding. The District Court found that Plaintiffs had not provided sufficient evidence for a jury to find that Cox’s tying arrangement “foreclosed a substantial volume of commerce in Oklahoma City to other sellers or potential sellers of set-top boxes in the market for set-top boxes.” Healy v. Cox Commc’ns, Inc. (“Cox I”), No. 12–ML–2048–C, 2015 WL 7076418, *1 (W.D. Okla. Nov. 12, 2015). The Tenth Circuit, in an opinion authored by Judge Gregory A. Phillips, agreed with the District Court, resting this conclusion on the finding that no other manufacturer sold or even attempted to sell set-top boxes directly to consumers. The Court concluded that the absence of set-top-box competitors meant that this was a “zero-foreclosure” case that presented no antitrust concerns. Cox II at *12.
The case involved a tying claim limited to an Oklahoma City geographic market. In a prior decision, the district court had rejected Plaintiffs’ attempt to certify one class covering multiple geographic markets. Plaintiffs therefore refiled separate complaints for separate geographic markets, and the Oklahoma City case was the first tried. The District Court tried the Cox case over nine days before a jury. The jury found that Plaintiffs had established an illegal tie between cable television and cable set-top boxes. The jury verdict form asked, “Has the alleged tying arrangement foreclosed a substantial volume of commerce in the Oklahoma City subsystem to other sellers or potential sellers of set-top boxes in the market for set-top boxes?” The jury answered yes. District Court Judge Robin J. Cauthron, however, found that there was no basis for that answer and granted Defendant’s motion for judgment as a matter of law. She concluded that Plaintiff failed to offer evidence from which a jury could determine that any other manufacturer wished to sell set-top boxes at retail or that Cox had prevented any other manufacturer from selling set-top boxes at retail. Because of this, there was no evidence that Defendant foreclosed any competition. Cox I at *1. Plaintiffs appealed.
The Tenth Circuit’s decision began by listing a tying claim’s four elements in the Tenth Circuit—“(1) two separate products are involved; (2) the sale or agreement to sell one product is conditioned on the purchase of the other; (3) the seller has sufficient economic power in the tying product market to enable it to restrain trade in the tied product market; and (4) a ‘not insubstantial’ amount of interstate commerce in the tied product is affected.” Cox II at *3. The court explained that the appeal concerned only the fourth element. Id. Cox argued that it did not foreclose competition because the tie did not foreclose any “current or potential competitor” from entering the market for set-top boxes. Plaintiffs contended that they had met this requirement by providing “undisputed evidence that Cox obtained over $200 million in revenues” from renting set-top boxes. Id. The Court pronounced that “Plaintiffs’ argument reflects an outdated view of the law.” Id. The Court then went through a history of tying law, arguing that the law had evolved from per se condemnation of any tie to the new view that some ties might not harm competition and therefore should not be actionable under the Sherman act. The Court concluded that there must be some showing of a substantial potential to foreclose competition in the tied market for there to be a viable tying claim. Id. at *3-5.
The Court found that there were four reasons why Cox’s tie did not harm competition in the market for set-top boxes.
(1) Cox did not manufacture the set-top box. The Court cited Areeda & Hovenkamp for the principle that “a foreclosure is of doubtful significance when the tying seller does not make the tied product but merely purchases it from independent suppliers.” 9 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1709a (3d ed. 2003).
(2) No manufacturers sold set-top boxes.
(3) Every other cable company had the same business model of renting its set-top boxes to its consumers which “suggests that tying set-top box rentals to premium cable is simply more effective than offering them separately.” (Here, the Court cited to a Second Circuit decision involving Time Warner Cable and the same alleged premium cable—set-top box tie. Kaufman v. Time Warner, 836 F.3d 137 (2nd Cir. 2016).
(4) FCC regulations limited the profits a cable company could make on set-top boxes, thereby decreasing any company’s incentive to try to compete in that market. Id. at *14. Because there was no foreclosure, the Court found that there was no per se tying relationship. It also briefly explained that, even under the rule of reason, there was no tying violation.
Id. at *11-15. The Court concluded by faulting Plaintiffs for ignoring the “goals of antitrust law” by “elevat[ing] form over function” by “fail[ing] to acknowledge the reasoning behind the Supreme Court’s threshold requirements for triggering the per se rule against tying.” Id. at *14. “Instead of explaining why the tie is dangerous despite Cox’s lack of competitors in the set-top box market, Plaintiffs insist that the need to show only that the set-top box rentals accounted for a substantial dollar amount.” Id. The Court found this position unpersuasive, particularly in light of the Supreme Court’s emphasis on “real market analysis” of tying claims.
Judge Mary Beck Briscoe dissented. Her opinion emphasized the need for deference to a jury verdict. Id. at *23. She said that the proper result would be to reverse the district court and remand for a new trial on damages only. It is not clear whether such a trial would allow the possibility for zero damages based on the same zero foreclosure arguments used to support the District Court’s Rule 50 ruling.
On October 3, 2017, Plaintiff Richard Healy filed a petition for rehearing en banc.
Elizabeth C. Pritzker
Pritzker Levine LLP
In In re Google Referrer Header Privacy Litigation, 869 F.3d 737 (9th Cir. Aug. 22, 2017), the Ninth Circuit affirmed an order granting final approval of a cy pres-only settlement of a class action brought by Google search users, alleging that Google violated their privacy by disclosing their Internet search terms to owners of third-party websites.
The central thesis of the case is that Google violated user’s privacy by disclosing their Internet search terms to owners of third-party websites. The alleged privacy violations are based on the Google browser architecture: once users submit search terms to Google search, the browser returns a list of relevant websites. When a user visits a website via Google Search, that website is allegedly privy to the search terms the user originally submitted to Google Search. 869 F.3d at 740. Overlaying this process is Google’s Web History Service, which tracks and stores account holders’ browsing activity on Google’s servers. Id.
Plaintiffs asserted that these browser and storage functions implicated their personal privacy in violation of the Stored Communications Act, Stored Communications Act, 18 U.S.C. § 2701 et seq., and state law. Plaintiffs sought statutory and punitive damages and declaratory and injunctive relief for the alleged privacy violations. Id. at 740.
Following a mediation, but prior to class certification, the parties reached a settlement, which they submitted to the district court for approval in July 2013. The settlement provided that Google would pay a total of $8.5 million and provide information on its website disclosing how user’s search terms are shared with third parties. Id. at 740. Of the $8.5 million, “$3.2 million was set aside for attorneys’ fees, administration costs, and incentive payments to the named plaintiffs,” with the rest "allocated to six cy pres recipients" who would use the money "to promote public awareness and education, and/or to support research, development, and initiatives, related to protecting privacy on the Internet." Id. The district court granted final approval of the settlement, over the objection of certain objectors, in March 2015. Id. at 741. Objectors appealed.
“As an initial matter,” the Ninth Circuit “quickly dispose[d]” of objectors’ argument that the “district court erred by approving a cy-pres only settlement” (id. at 741), that is, a settlement that provides no settlement funds to class members directly but, instead, provides money to non-profit organizations with missions that align with the interests of class members and the claims asserted in the litigation. The Ninth Circuit held that the district court appropriately found the settlement fund – given its size relative to the number of class members nationwide – to be "non-distributable,” and therefore appropriate for a cy pres distribution. Id. at 741-42 (citing Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012)). The panel also rejected the objectors' argument that a "non-distributable" settlement, by definition, cannot meet the "superiority" element of class certification. Id. at 742. To the contrary:
The two concepts [i.e., cy pres and "superiority"] are not mutually exclusive, since “[w]here recovery on an individual basis would be dwarfed by the cost of litigating on an individual basis, this factor weighs in favor of class certification.” .... The district court did not abuse its discretion in finding the superiority requirement was met because the litigation would otherwise be economically infeasible. This finding dovetails with the rationale for the cy pres-only settlement.
Id. at 742-43 (footnote omitted) (quoting Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010)).
The final sections of the opinion address the propriety of the selected cy pres recipients and of the attorneys' fees awarded to class counsel.
The Ninth Circuit affirmed the district court’s finding that each proposed cy pres recipient was an “established organization,” selected because they are “independent,” have a nationwide reach, and “a record of promoting privacy protection on the Internet,” and are “capable of using the funds to educate the class about online privacy risks.” Id. at 743. “Accordingly,” the Ninth Circuit held, “the district court appropriately found that the cy pres distribution addressed the objectives of the Stored Communications Act and furthered the interests of class members.” Id. at 743-44.
One judge dissented from the cy pres portion of the opinion, reasoning that the district court should have more closely vetted the three recipients affiliated with class counsel's alma maters. Id. at 749-51. The majority, however, found no abuse of discretion. Id. at 746-47.
Turning to the issue of attorneys’ fees, the Ninth Circuit held the district court did not abuse its discretion by approving $2.125 million in fees and $21,643.16 in costs. The Ninth Circuit found “no support” for objectors’ view that “the settlement should have been valued at a lower amount for the purposes of calculating attorney’s fees simply because it was cy pres only.” Id. at 747 (citing Lane, 696 F.3d at 818 (acknowledging a 25% fee award that also involved a cy pres-only settlement).) Rather, under the percentage-of-recovery method, the Ninth Circuit observed the requested fee was equal to 25% of the settlement fund – a fee percentage the panel found “hewed closely to that awarded in similar Internet privacy actions.” Id. at 747-48 (citing In re Netflix Privacy Litig., No. 5:11-CV-00379 EJD, 2013 WL 1120801, at *9-10 (N.D. Cal. Mar. 18, 2013); and In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011) (noting that 25% is the Circuit “benchmark” for a reasonable fee award).) The district court also appropriately cross-checked the requested fees using the lodestar method, the Ninth Circuit held. Id. at 748.
The Ninth Circuit, in In re Google Referrer Header Privacy Litigation, has not paved new ground on the availability of cy pres-only settlements in appropriate cases. Where cost or manageability obstacles make it difficult to provide meaningful monetary settlement relief, pro rata, to class members directly, cy pres allocations to nonprofit organizations with missions that have a close nexus to the legal claims at issue may provide an appropriate class settlement remedy.
Sidley Austin LLP
Civil plaintiffs in Sherman Act cases can only recover damages if they sue within four years after the cause of action accrues, which is generally when the wrongdoer commits an act that injures them. 15 U.S.C. §15b; Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971). For criminal prosecutors the statute of limitations is five years instead of four. 18 U.S.C. § 3282(a) (a defendant cannot be prosecuted unless the indictment is found or the information is instituted within five years after the offense was committed).
The Supreme Court has said that,
Antitrust law provides that, in the case of a ‘continuing violation,’ say a price fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years, “each overt act that is part of the violation and that injures the plaintiff,” e.g. each sale to the plaintiff, “starts the statutory period running again, regardless of the plaintiff's knowledge of the alleged illegality at much earlier times.”
Klehr v. A.O. Smith, 521 U.S. 179, 189 (1997) (quoting 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b, p. 145 (rev. ed. 1995)).
The Antitrust Division and private plaintiffs often seek to take advantage of this continuing violation doctrine to extend the time in which they can bring an action much later than four or five years after the initial illegal act. Two recent decisions underscore how the continuing violation doctrine may impact statute of limitations defenses in antitrust cases.
United States v. Kemp & Associates, Inc. and Daniel Mannix
The Antitrust Division relied on the continuing violation doctrine in its indictment of an heir location service company and the company’s director of operations for an alleged customer allocation scheme. The District Court for the District of Utah, however, rejected the doctrine and recently dismissed the case. United States v. Kemp & Associates, Inc. and Daniel Mannix, Case No. 16-cr-00403, ECF 97 (Aug. 28, 2017). The government filed the indictment in August of 2016 alleging that the defendants had entered into a customer allocation agreement as early as 1999. The defendants presented evidence that they withdrew from the agreement in July of 2008, over eight years before the indictment. The government alleged, however, that the conspiracy included accepting collusive rates from customers within the five year limitations period, and that payoffs between the conspirators also happened within the five year limitations period.
The court, nevertheless, dismissed the indictment. It held that the scope of the alleged conspiracy was to suppress and eliminate competition by agreeing to allocate customers and found that once the firms agreed to end the agreement, “only routine, administrative consequences of a concluded allocation agreement remained.” Id. at *4. The court stated that the government’s continuing violation theory confused “the results of a conspiracy with actual conduct in furtherance of it.” Id. at *5. It stated that, “[a] conspiracy’s statute of limitations should not be extended ‘indefinitely beyond the period when the unique threats to society posed by a conspiracy are present.” Id. (quoting United States v. Doherty, 867 F.2d 47, 62 (1st Cir. 1989)). According to the court, the ‘unique threat’ identified in the indictment was the alleged customer allocation and that threat ended with the termination of the agreement. Id. The Division dismissed the case, so there will be no appeal.
In re: Pre-Filled Propane Tank Antitrust Litigation
The Eighth Circuit recently addressed the continuing violation doctrine and came to the opposite conclusion from that reached by the court in the Kemp & Associates. In In re: Pre-Filled Propane Tank Antitrust Litigation, 860 F.3d 1059 (8th Cir. 2017), the Eighth Circuit sitting en banc held that in an antitrust conspiracy suit, each allegedly unlawful sale restarts the running of the statute of limitations even if the alleged conspiracy was hatched outside the four-year statute of limitations period and regardless of whether the plaintiff had earlier knowledge of the allegedly illegal conduct. The Court was closely divided with five judges in the majority and four signing on to a sharply worded dissent. The dissent argued that to avoid dismissal plaintiffs are required to show a live, ongoing conspiracy within the limitations period.
The appeal involves claims by direct purchasers of pre-filled propane tanks against the two largest propane tank distributors. Before 2008, defendants filled standard-size tanks with 17 pounds of propane. Plaintiffs allege that, in 2008, defendants colluded to reduce the amount of propane in standard tanks to 15 pounds while keeping prices the same, an effective 13% price increase. Id. at 1062.
Plaintiffs sued in 2014, arguably several years beyond the four-year limitations period. The district court dismissed plaintiffs’ suit as time-barred. A three-judge panel of the Eighth Circuit affirmed. But after rehearing the case en banc, the Eighth Circuit reversed. Relying principally on the Supreme Court’s decision in Klehr, the majority held that, in an antitrust conspiracy, each allegedly unlawful sale restarts the running of the statute of limitations regardless of whether the plaintiff had earlier knowledge of the allegedly illegal conduct. Id. at 1064-68.
The dissenting judges disagreed with the majority’s reliance on Klehr and its application of the continuing violation doctrine to Sherman Act claims. The dissent stressed that Klehr, despite its reference to antitrust law, was a RICO case and that it should not apply in the antitrust context. Id. at 1072. According to the dissent, in order for the continuing violation doctrine to apply in an antitrust case, there must be a live, ongoing conspiracy within the limitations period. Id. at 1072-73. The dissenting judges noted that by empowering private plaintiffs to bring antitrust claims, Congress meant to incentivize prompt action to redress allegedly harmful conduct. “Congress did not intend for plaintiffs to sit back, with fully knowledge of the 2008 conspiracy, and wait six years before finally correcting a public harm.” Id. at 1075.
The decisions in Kemp & Associates and In re: Pre-Filled Propane Tank Antitrust Litigation suggest that the battle over the continuing violation doctrine is not over.