THE CONTINUING VIOLATIONS DOCTRINE: LIMITATION IN NAME ONLY, OR A RESUSCITATION OF THE CLAYTON ACT’S STATUTE OF LIMITATIONS?

By Stephen McIntyre and Kenneth R. O’Rourke¹

I. INTRODUCTION

Congress first gave private plaintiffs a right to sue for federal antitrust violations in 1914, when it passed the Clayton Antitrust Act.² Congress did not initially enact a statute of limitations. For the next several decades, courts looked to state statutes to determine the applicable limitations period in each case.³ As a result, "a plaintiff injured in several jurisdictions [was] permitted to select as his forum the State with the most favorable statute," and defendants "remain[ed] in constant jeopardy until the longest period of limitations ha[d] transpired."⁴ Finally, in 1955, Congress took action to remedy the problem by mandating a "uniform statute of limitations applicable to all private treble damage actions."⁵ It enacted Section 4B of the Clayton Act, which requires antitrust plaintiffs to bring suit within four years from the time their cause of action accrues.⁶

Sixty years later, defendants once again face an unsettling lack of uniformity in federal antitrust actions. Though the Clayton Act imposes a four-year limitation on treble damage actions, several courts of appeals have created an exception that all but swallows the rule. These courts hold that the "continuing violations" doctrine permits a plaintiff to sue at any point after a defendant’s allegedly unlawful conduct has ceased, so long as inflated prices—the prototypical effect of an antitrust violation—persist. This interpretation of the doctrine turns Section 4B on its head, permitting plaintiffs to keep the limitations period running—and treble damages accumulating—for years after the underlying collusion has ended. Instead of a "uniform statute of limitations" with a definitive ending point, defendants now face a limitless statute of limitations depending on the jurisdiction in which a federal antitrust claim is litigated.