Antitrust and Unfair Competition Law

Competition: Spring 2015, Vol. 24, No. 1



By Stephen McIntyre and Kenneth R. O’Rourke1


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.

The "continuing violations" doctrine, properly understood, applies where defendants have committed an "overt act" during the four-year limitations period. Neither passively receiving serial payments, nor pricing products pursuant to a prior agreement, constitutes an overt act. This interpretation comports with a century of Supreme Court

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jurisprudence, the purposes of the Clayton Act’s statute of limitations, and commonsense. In contrast, decisions that apply the continuing violations doctrine to the receipt of serial payments or to continued pricing do so based on a mere five words of dicta. We think it illogical to upend decades of prior decisions on the basis of so little.


In Zenith Radio Corporation v. Hazeltine Research, Inc.,7 the Supreme Court laid down the standard for when an antitrust claim accrues under the Clayton Act’s statute of limitations. "Generally," the Court held, "a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business."8 Therefore, "if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him," and "he must sue within the requisite number of years" from that date.9

At the same time, the Supreme Court noted exceptions to the general accrual rule. One of these has become known as the "continuing violations" or "continuing conspiracy" doctrine. As the Court put it in Zenith Radio, "[i]n the context of a continuing conspiracy to violate the antitrust laws, . . . each time a plaintiff is injured by an act of the defendants[,] a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act."10

The Court was not announcing a new doctrine, but rather was restating one that had been in place for decades. The continuing violations doctrine has long been applied in a variety of contexts, including antitrust, as a matter of federal common law.11 As early as 1910 (prior to passage of the Clayton Act), in an opinion by Justice Oliver Wendell Holmes, the Supreme Court held that an antitrust conspiracy may "have a continuance in time."12 Specifically, an antitrust conspiracy is "continuing" where "the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation."13 Reversing the circuit court’s dismissal of the case, the Court held that the government’s indictment was timely.14

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The following general rule has emerged from these and other decisions: there can be no "continuing violation" of the antitrust laws—meaning that the statute of limitations cannot be extended past the usual four years—unless the defendants are shown to have committed an "overt act" during the limitations period.15 In the words of Justice Holmes, there must be "continuous co-operation . . . [by] the conspirators" to keep the antitrust conspiracy alive.16 Without this "continuity of action,"17 the violation is not a continuing one, and normal statute of limitations accrual principles apply.

As this history suggests, the continuing violations doctrine focuses "’on the timing of the causes of injury, i.e., the defendant’s overt acts, as opposed to the effects of the overt acts.’"18 Defendants’ conduct may produce an effect that endures over a period of time, but unless the plaintiff can point to overt action during the limitations period, the continuing violations exception will not apply. Therefore, to sustain an antitrust cause of action, the plaintiff must base his or her claim for damages "on some injurious act occurring during the limitations period, not merely the abatable but unabated inertial consequences of some pre-limitations action."19

What constitutes an "overt act"? The classic definition, provided by the Ninth Circuit, consists of two elements: "1) It must be a new and independent act that is not merely a reaffirmation of a previous act; and 2) it must inflict new and accumulating injury on the plaintiff."20 With the notable exception of the Third Circuit, which holds that a reaffirmation can keep the limitations period running,21 this formulation of the "overt act" rule has been adopted by courts across the country, including five courts of appeals.22

Additionally, since the continuing violations doctrine is an equitable rule,23 it ordinarily does not apply where the plaintiff had actual or constructive knowledge of the defendants’ conduct—even if the conduct might otherwise be considered a continuing

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violation.24 Any other interpretation of the doctrine would "permit plaintiffs who know of the defendant’s pattern of activity simply to wait, ‘sleeping on their rights,’ as the pattern continues and treble damages accumulate."25

Indeed, the continuing violations doctrine is often described as "narrow,"26 and even "disfavored."27 In construing the Clayton Act’s statute of limitations, the Supreme Court has held that any rule that could potentially "extend[] the limitations period to many decades" would violate Congress’ intent in passing the statute and "thwart[] the basic objective of repose underlying the very notion of a limitations period."28


A recurrent but unresolved issue in antitrust cases brought by direct or indirect purchasers is whether making sales at allegedly supracompetitive prices during the limitations period gives rise to a "continuing violation." In the absence of clear direction from the Supreme Court, the lower courts have starkly split on this important question.

Numerous federal courts have held that the continued receipt of fixed or inflated payments does not constitute a continuing violation of the antitrust laws.29 As the Sixth Circuit explained in a 2014 decision, "profits, sales, and other benefits accrued as a the result of an initial wrongful act are not treated as ‘independent acts.’ Rather, they are uniformly viewed as ‘ripples’ caused by the initial injury."30 Though the defendants may have benefitted from earlier conduct during the limitations period, that consequence "does not render the [pre-limitations] act a continuing violation of the antitrust laws."31

The First and Second Circuits have also held (albeit in non-antitrust contexts) that receiving unlawful payments pursuant to a pre-limitations conspiracy is not an "overt act," and therefore does not give rise to a continuing conspiracy. In United States v.

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Doherty, for example, then-Judge Stephen Breyer wrote for the First Circuit that "where receiving the payoff merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions, such as receiving [allegedly inflated] salary payments . . . we do not see how one can reasonably say that the conspiracy continues."32 For its part, the Second Circuit has applied the Doherty rule to hold that receiving "serial payments" as a result of a "multi-year scheme to fix below-market rates on interest" does not constitute an overt act.33

In contrast, the Fourth, Eighth, Ninth, and Eleventh Circuits have held that continued sales at supracompetitive prices do qualify as a continuing violation.34Remarkably, each of these courts has reached this conclusion without engaging in any extended analysis of the doctrine. In fact, in the most recent of these decisions, the Eighth Circuit premised its holding on a hypothetical fear that failing to apply the continuing violations doctrine would permit "two parties [to] agree to divide markets for the purpose of raising prices, wait four years to raise prices, then reap the profits of their illegal agreement with impunity."35 However, this situation is already covered by the "speculative damages" doctrine, which holds that an antitrust plaintiff need not (and, indeed, cannot) bring a cause of action so long as damages remain wholly speculative.36 In such a case, the plaintiff’s cause of action does not accrue until the "monopolist[s] actually

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exercise[] [their] illicit power to extract an excessive price."37 That situation, however, has nothing to do with continuing violations.

In the absence of extensive reasoning, how have four courts of appeals managed to reach this same outcome? The answer lies in a single line of dicta.

In Klehr v. A.O. Smith Corporation, the Supreme Court interpreted the Clayton Act’s statute of limitations as applied to civil Racketeer Influenced and Corrupt Organizations Act ("RICO") actions.38 In so doing, the Court majority (per Justice Breyer) drew a comparison to the continuing violations doctrine in antitrust cases. Conjuring up a hypothetical "price-fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years," Justice Breyer explained that "’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.’"39 The Fourth, Eighth, Ninth, and Eleventh Circuits have each taken Justice Breyer’s line as conclusive authority for the proposition that continued sales at inflated prices keep the Clayton Act’s limitations period running.

But there’s a catch. The Supreme Court in Klehr did not actually hold that mere continuous sales qualify as a continuing violation of the antitrust laws for statute of limitations purposes. If anything the Court’s holding supports the opposite conclusion. Klehr required the Court to consider the Third Circuit’s "last predicate act" rule, which held that the limitations period for a civil RICO action ran from the time the plaintiff knew or should have known of the last injury, or last predicate act, which was part of the same alleged pattern of racketeering activity.40 The Court rejected this rule because it "create[d] a limitations period that [was] longer than Congress could have contemplated," since "a series of predicate acts . . . can continue indefinitely."41 This outcome was unacceptable to the Court, since it would "lengthen[] the limitations period dramatically."42 Citing Zenith Radio, the Court observed that the Third Circuit’s rule also conflicted with "the ordinary Clayton Act rule, applicable in private antitrust treble damage actions."43

Because the Court’s (possibly offhand) statement about sales constituting "overt acts" was not vital to—and in fact may conflict with—the holding in Klehr, it is not binding on the lower courts.44 The question of whether continued sales at inflated prices keep the Clayton Act statute of limitations running therefore was not settled by Klehr.

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The Supreme Court’s Klehr dictum is too thin a reed to support the heavy proposition that in all antitrust cases brought by purchasers seeking to recover overcharges on purchases, the Clayton Act’s statute of limitations is potentially limitless. While suggesting that "each sale to the plaintiff" could "start[] the statutory period running again," the Court made no indication that it intended to paint with so broad a brush.45 Indeed, converting a suggestion made by way of a passing "e.g."46 into conclusive authority for such a sweeping rule would be incongruous, especially since Klehr expressly rejects doctrines that would "lengthen[] the limitations period dramatically," "thereby conflict[ing] with a basic objective—repose—that underlies limitations periods."47 Only a narrower construction of the continuing violations doctrine can be squared with this instruction.

The Supreme Court has previously emphasized that a continuing violation refers to an active conspiracy, as distinct from a completed conspiracy that produces continuing effects. Justice Oliver Wendell Holmes explained that the limitations period may be extended only where "the plot contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators to keep it up, and there is such continuous cooperation."48 Without such continuous cooperation, the conspiracy itself does not continue—regardless of whether the conspiracy caused lasting effects.49

The Supreme Court reiterated this point decades later in Fiswick v. United States, a case in which German nationals were accused of conspiring to defraud the United States by failing to disclose their membership in the Nazi party, in violation of the Alien Registration Act.50 In addressing whether the conspiracy was a continuing one, the Court declared: "Though the result of a conspiracy may be continuing, the conspiracy itself does not thereby become a continuing one."51 Rather, the essential question is whether there is "[c]ontinuity of action to produce the unlawful result, or . . . ‘continuous cooperation of the coconspirators to keep it up.’"52

So, are inflated prices an overt act, or merely the result of a prior antitrust violation? According to Professor Hovenkamp, "it would seem that high prices following . . . the creation of a monopoly are mere ‘inertial consequences’ that one naturally expects to flow from such acts."53 In language reminiscent of the Supreme Court’s holding in

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Klehr, Hovenkamp warns that "if the mere charging of a monopoly price constitutes a ‘continuing violation’ tolling the statute, then we have indefinitely lengthened the statute of limitation."54

Given that the charging of inflated prices is the paradigmatic consumer antitrust injury—and in virtually all conspiracy cases, the main object of the defendants’ collusion—inflated prices are merely a "naturally expected consequence" of the alleged violation.55 (As the professor notes, the outcome may be different where the conspirators hold "a series of ongoing meetings to correct a cartel," or "exchange . . . pricing information" during the limitations period.56 In these cases, it is conceivable that there could be further overt actions necessary to enforce the cartel agreement.57)

Continuous sales at inflated prices also do not qualify as "overt acts" under the widely recognized Pace Industries definition. As noted above, that case defines "overt act" to mean "a new and independent act" that "inflict[s] new and accumulating injury on the plaintiff."58 Since the very purpose of most antitrust violations is to charge higher prices,59 whether directly (such as by price-fixing or dividing markets) or indirectly (such as by acquiring or extending a monopoly), one can hardly describe that outcome as "new and independent" of the original conspiracy or violation.60 As the Sixth Circuit explains, continued sales resulting from an "initial wrongful act" are not independent, but rather constitute "’ripples’ caused by the initial injury."61

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Moreover, if the harm resulting from the defendants’ original anticompetitive agreement or conduct was the imposition of supracompetitive prices, then by definition, the continued imposition of those prices does not cause a "new" or "accumulating" injury.62 The same injury does not become "new" simply because it continues over time. The defendants’ "receipt of payments merely [is] the ‘result’ of the conspiracy."63 Therefore, as many courts have now recognized, continued sales are not "new and independent" overt acts causing "new and accumulating" injury, but rather "the abatable but unabated inertial consequences of some pre-limitations action."64

Deeming each sale an "overt act" would be especially problematic in cases brought by indirect purchasers. Setting aside the issue of whether federal Clayton Act accrual principles should apply to indirect purchaser state law claims,65 an indirect purchaser’s purported injury—purchasing something at an elevated price—is even more attenuated from any upstream "act of the defendants"66 than a direct purchaser’s injury. As the authors of a recent petition for certiorari pointed out to the Supreme Court, indirect purchasers do not even have dealings with the accused conspirators.67 Treating their every purchase from third parties as an "overt act" by the defendants would render the term "act" meaningless.68

It bears noting that the Sherman Act’s primary intended beneficiaries are consumers.69 Congress was surely aware of this when it passed the Clayton Act’s statute of limitations. Many if not most private antitrust actions are initiated by purchasers, and in virtually

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all of these cases, the plaintiffs claim injuries resulting from inflated prices.70 With this in mind, it therefore strains credulity to suggest that Congress could have intended an "exception" that would render its legislative four-year limitations period meaningless in nearly all consumer antitrust actions. This is precisely the outcome the Supreme Court rejected in Klehr.

Given the multitude of problems associated with deeming mere continued sales a "continuing violation," we believe the Supreme Court’s Klehr dictum is neither analytically correct nor controlling.


A compelling approach to the continuing violations doctrine is one taken by Justice Breyer during his tenure on the First Circuit. In United States v. Doherty, the defendants were Boston policemen who had allegedly conspired to steal advance copies of civil service examinations in order to fraudulently obtain promotions.71 While Doherty was not a civil antitrust action (it was a criminal fraud case), the relevant legal standard was the same—whether the alleged co-conspirators had committed an "overt act" during the limitations period.72 The court asked "whether each defendant’s receipt of salary payments after July 1981 can count as an ‘overt act’ for statute of limitations purposes."73 The government took the position that "each monthly payment [to the defendants] constitute[d] an overt act."74

The First Circuit reversed the conviction at issue, holding that the officers’ continuing receipt of inflated salary payments during the limitations period could not sustain the government’s prosecution.75 Writing for the court, Judge Breyer articulated the following rule:

[W]here receiving the payoff [of a conspiracy] merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions, such as receiving salary payments, and there is no evidence that any concerted activity posing the special societal dangers of conspiracy is still taking place, we do not see how one can reasonably say that the conspiracy continues. Rather, in these latter circumstances, one would ordinarily view the receipt of payments merely as the "result" of the conspiracy.76

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In a follow-on case to Doherty, the First Circuit explained the wisdom in this rule. Accepting the government’s interpretation would have "stripp[ed] statutes of limitations of all meaning," the court wrote, leaving the limitations period "with no fixed outer rim."77 That result would have been "untenable."78

In contrast to the Justice Breyer’s passing dictum in Klehr, Justice Breyer’s Doherty rule is faithful to the past century of Supreme Court precedent—including the actual holding of Klehr itself. Under Doherty, there is no continuing violation unless "concerted activity posing the special societal dangers of conspiracy is still taking place."79 Or, as Justice Holmes put it, there must be "continuous co-operation of the conspirators" to keep the scheme alive,80 not merely passive enjoyment of benefits flowing from earlier conduct. Antitrust plaintiffs’ continuous purchase of goods or services at inflated prices is just the type of "lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions" that Justice Breyer held could not be imputed to alleged conspirators under a continuing conspiracy theory.

The Doherty rule strikes the proper balance between plaintiffs’ right to relief and defendants’ right to repose. The rule permits plaintiffs to pursue their case so long as "the special . . . dangers [attendant to] conspiracies"—actual overt acts—are still present,81 and starts the limitations clock running once the "conspiracy has completed its influence on an otherwise legitimate course of common dealing that remains ongoing for a prolonged time."82 This rule also would not interfere with plaintiffs’ ability to avail themselves of other judicially recognized tolling doctrines when applicable, such as the fraudulent concealment rule.83


Three years after deciding Klehr, the Supreme Court was once again asked to interpret the Clayton Act’s statute of limitations in the civil RICO context. In Rotella v. Wood, the Court considered the "injury pattern and discovery rule," yet another take on

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when civil RICO actions accrue.84 The Court again remarked that it would be "strange" to adopt an accrual rule that resulted in an "unusually long basic limitations period," given that Congress had specifically sought to "avoid[] any such policy" in passing the Clayton Act’s four-year statute of limitations.85 The Court rejected the "injury pattern and discovery rule" precisely because it threatened to extend the Clayton Act limitations period to "many decades" beyond the four years prescribed by statute.86

The continuing violations doctrine, as presently interpreted in decisions from the Fourth, Eighth, Ninth, and Eleventh Circuits, has the potential to accomplish exactly what the Supreme Court has forbidden: keeping defendants on the hook for "many decades," if not indefinitely, even when their anticompetitive conduct ceased years earlier—while memories fade, evidence is lost, and treble damages accumulate.87 What’s more, this supposedly "narrow" doctrine stands to eviscerate the notion of repose in virtually every single consumer antitrust action filed in this country. It is time to correct this misapprehension before the Clayton Act’s four-year statute of limitations itself fades from memory.

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1. Kenneth R. O’Rourke is a partner in O’Melveny & Myers LLP’s Antitrust & Competition Practice Group. Stephen McIntyre is an associate in O’Melveny & Myers LLP’s Antitrust & Competition Practice Group. This article reflects the views of the authors and not necessarily those of O’Melveny & Myers LLP, its attorneys, or its clients.

2. 15 U.S.C. §§ 12-27, 29 U.S.C. §§ 52-53.

3. See, e.g., Schiffman Bros., Inc. v. Texas Co., 196 F.2d 695, 696 (7th Cir. 1952) ("[I]nasmuch as Congress has enacted no statutes of limitations covering private actions for treble damages under the Clayton Act, in order to ascertain the applicable limitation we must necessarily look to the statute of the state where the cause of action arises and in which the suit is brought.").

4. S. Rep. 84-619 (1955), reprinted in 1955 U.S.C.C.A.N. 2328, 2330-31 WL 3839.

5. Id. at 2231.

6. 15 U.S.C. § 15b.

7. 401 U.S. 321 (1971).

8. Id. at 338.

9. Id. at 339 (emphasis added).

10. Id. at 338.

11. See, e.g., Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n.15 (1968) (applying doctrine in antitrust case); Local Lodge No. 1424 v. Nat’l Labor Relations Bd., 362 U.S. 411, 422—23 (1960) (discussing doctrine’s application in cases brought under National Labor Relations Act); see also Hensley v. City of Columbus, 557 F.3d 693, 697 (6th Cir. 2009) ("[The ‘continuing violation’ doctrine] is rooted in general principles of common law and is independent of any specific action.").

12. United States v. Kissel, 218 U.S. 601, 607 (1910).

13. Id.

14. Id. at 608—10.

15. See, e.g., Z Techs. Corp. v. Lubrizol Corp., 753 F.3d 594, 598 (6th Cir. 2014); Midwestern Mach. Co. v. Nw. Airlines, Inc., 392 F.3d 265, 269 (8th Cir. 2004); Eichman v. Fotomat Corp., 880 F.2d 149, 160 (9th Cir. 1989).

16. Kissel, 218 U.S. at 607.

17. Fiswick v. United States, 329 U.S. 211, 216 (1946).

18. Varner v. Peterson Farms, 371 F.3d 1011, 1019 (8th Cir. 2004) (quoting DXS, Inc. v. Siemens Med. Sys., Inc., 100 F.3d 462, 467 (6th Cir. 1996)); see also Fiswick, 329 U.S. at 216 ("Though the result of a conspiracy may be continuing, the conspiracy does not thereby become a continuing one.").

19. This particular formulation of the rule is often repeated, but its origin is Poster Exchange, Inc. v. Nat’l Screen Serv. Corp., 517 F.2d 117, 128 (5th Cir. 1975).

20. Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987).

21. West Penn Allegheny Health Sys, Inc. v. UPMC, 627 F.3d 85, 107-08 (3d Cir. 2010).

22. See, e.g., Varner, 371 F.3d at 1019; Pilkington v. United Airlines, 112 F.3d 1532, 1536-37 (11th Cir. 1997); DXS, 100 F.3d at 467; Kaw Valley Elec. Coop. Co. v. Kan. Elec. Power Coop., Inc., 872 F.2d 931, 933 (10th Cir. 1989); Pace Indus., 813 F.2d at 238; In re Fiorillo, 494 B.R. 119, 154 (Bankr. D. Mass. 2013); Allen v. Dairy Farmers of Am., Inc., 748 F. Supp. 2d 323, 350 (D. Vt. 2010); In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F. Supp. 2d 188, 228 (E.D.N.Y. 2003); Xechem, Inc. v. Bristol-Myers Squibb Co., 274 F. Supp. 2d 937, 944-45 (N.D. Ill. 2003).

23. See Wilson v, Brinker Int’l, Inc., 382 F.3d 765, 772 (8th Cir. 2004); Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004).

24. See Montanez v. Sec’y Venn. Dep’t of Corrections, 773 F.3d 472, 481 (3d Cir. 2014); Z Techs. Corp. v. Lubrizol Corp., 753 F.3d 594, 603 (6th Cir. 2014).

25. Klehr v. A.O. Smith Corp, 521 U.S. 179, 187 (1997) (quoting Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352 (1983)).

26. See, e.g., Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1126 (9th Cir. 2006) (Privacy Act); Young v. DaimlerChrysler Corp., 52 F. App’x 637, 640 (6th Cir. 2002) (employment discrimination); Woltring v. Specialized Loan Servicing, LLC, No. 14-cv-0222, 2014 WL 2708581, at *6 (E.D. Wis. June 16, 2014) (Fair Debt Collections Practices Act); Lee v. City of Columbus, No. 07-cv-1230, 2008 WL 5146504, at *2 (S.D. Ohio Dec. 5, 2008) (Section 1983).

27. See Stouter v. Smithtown Central Sch. Dist., 687 F. Supp. 2d 224, 230 (E.D.N.Y. 2010) ("[T]he continuing violation doctrine is heavily disfavored in the Second Circuit and courts have been loath to apply it absent a showing of compelling circumstances.") (quotation omitted) (citation omitted).

28. Rotella v. Wood, 528 U.S. 549, 554 (2000).

29. See Z Techs., 753 F.3d at 600; Insulate SB, Inc. v. Advacnced Finishing Sys., Inc., No. 13-cv-2664, 2014 WL 943224, at *7 (D. Minn. Mar. 11, 2014); Smith v. eBay Corp., No. 10-cv-3825, 2012 WL 27718, at *3 (N.D. Cal. Jan. 5, 2012); Stanislaus Food Prods. Co. v. USS-POSCO Indus., No. 09-cv-0560, 2010 WL 3521979, at *16 (E.D. Cal. Sept. 3, 2010); In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F. Supp. 2d 188, 227-29 (E.D.N.Y. 2003).

30. Z Techs., 753 F.3d at 600.

31. Id. (quoting Barnosky Oils, Inc. v. Union Oil Co. of Calif., 665 F.2d 74, 82 (6th Cir. 1981)).

32. 867 F.2d 47, 62 (1st Cir. 1989).

33. United States v. Grimm, 738 F.3d 498, 499, 502-04 (2d Cir. 2013).

34. See In re Wholesale Grocery Prods. Antitrust Litig., 752 F.3d 728, 736-37 (8th Cir. 2014); Oliver v. SD-3C LLC, 751 F.3d 1081, 1086 (9th Cir. 2014); In re Cotton Yarn Antitrust Litig., 751 F.3d 1081, 1086-87 (4th Cir. 2007); Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 828 (11th Cir. 1999), amended in part, 211 F.3d 1224 (11th Cir. 2000).

35. Wholesale Grocery, 752 F.3d at 736.

36. See Zenith Radio Corp. v. Hazeltine Research, Inc. 401 U.S. 321, 339 (1971). ("On the other hand, it is hornbook law, in antitrust actions as in others, that even if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable."); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir. 1979) ("Plainly, at the time a monopolist commits anticompetitive conduct it is entirely speculative how much damage that action will cause its purchasers in the future. Indeed, some of the buyers who will later feel the brunt of the violation may not even be in existence at the time. Not until the monopolist actually sets an inflated price and its customers determine the amount of their purchases can a reasonable estimate be made. The purchaser’s cause of action, therefore, accrues only on the date damages are ‘suffered.’") (citation omitted).

Berkey Photo has often been erroneously construed as addressing the "continuing violations" doctrine, when in fact, it only applies the "speculative damages" exception. Without this necessary context, Berkey Photo may be read as suggesting that the limitations period continues running as long as any consumers continue purchasing products from the defendants at inflated prices. However, as Professor Herbert Hovenkamp notes, interpreting Berkey Photo in that manner would conflict with numerous decisions of other circuits holding that a "continuing violation" tolls the statute of limitation only if the acts that are alleged to continue the violation are sufficiently independent of the initial unlawful act. The monopolist’s simple charging of its profit-maximizing price is a naturally expected consequence of monopoly and can hardly be said to be independent.

2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 320c4 (4th ed. 2014). Professor Hovenkamp explains that in the situation described in Berkey Photo, "the consumer injury occurs when the [monopolistic conduct] succeeds in strengthening or lengthening the antitrust defendant’s monopoly, thus forcing the consumer to pay more." Id. ¶ 320c1.

37. Berkey Photo, 603 F.2d at 295.

38. Klehr v. A.O. Smith Corporation, 521 U.S. 179,183 (1984). The Court has previously held that civil RICO actions are subject to the Clayton Act’s four-year statute of limitations. Id.

39. Id. at 189 (quoting 2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 338b (rev. ed. 1995)).

40. See Id. at 186-87 (quoting Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1130 (3d Cir. 1988)).

41. Id. at 187.

42. Id.

43. Id. at 188 (citing Zenith Radio Corp. v. Hazeltine Research, Inc. 401 U.S. 321, 338 (1971).

44. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 626 (1935) ("In the course of the opinion of the court, expressions occur which tend to sustain the government’s contention, but these are beyond the point involved and, therefore, do not come within the rule of stare decisis.").

45. See Klehr, 521 U.S. at 189 (quotation omitted) (citation omitted).

46. See id. ("[E].g., each sale to the plaintiff.").

47. Id. at 187.

48. United States v. Kissel, 218 U.S. 601, 607 (1910) (emphasis added).

49. Id. at 607-8.

50. 329 U.S. 211, 213-14 (1946).

51. Id. at 216.

52. Id. (quoting Kissel, 218 U.S. at 607).

53. 2 Areeda, supra note 36, at ¶ 320c1.

54. Id.

55. Id. at ¶ 320c4.

56. Id. at ¶ 320c2.

57. Id. Professor Hovenkamp suggests that in certain cases, it may be appropriate to infer continuing acts from higher prices—which is different from treating the higher prices themselves as continuing acts. Specifically, Hovenkamp states that "if a cartel in a competitively structured market caused overnight increases in short-term prices, one would expect prices to move back to the cartel level very quickly after cartel enforcement ceased." Id. He concludes that in these circumstances, "it would be reasonable to infer continuing acts from continuing higher prices." Id.

By contrast, where the cartel is more "structural," inferring continuing acts from higher prices is not appropriate. Id. "For example," Hovenkamp writes, "if two firms decide to divide the paint market, with one making latex water-based paint and the other oil-based paint, carrying out the agreement could require significant commitments to certain technologies, and these firms might not enter each other’s markets for many years after they stop ‘enforcing’ their market division." Id. In such a case, the continuing effect of higher prices should not be taken as evidence of continuing overt acts, i.e. , a continuing violation. Id.

58. Pace Indus, Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987).

59. See, e.g., Todd v. Exxon Corp., 275 F.3d 191, 201 (2d Cir. 2001) ("The traditional horizontal conspiracy case involves an agreement among sellers with the purpose of raising prices to supracompetitive levels.").

60. See Ill. Brick Co. v. Illinois, 431 U.S. 720, 756 (1977) ("The Senate Report accompanying the new Act expressly found that ‘[t]he economic burden of most antitrust violations is borne by the consumer in the form of higher prices for goods and services.’") (quoting S. Rep. 94-803, at 39); Pilkington v. United States, 112 F.3d 1532, 1537 (11th Cir. 1997) ("The injuries were all part of the same bankruptcy scheme and all lead to the loss of [the plaintiff’s]interest in the practice; neither the acts nor the injuries were new.").

61. Z Techs. Corp. v. Lubrizol Corp., 753 F.3d 594, 600 (6th Cir. 2014).

62. See Martinez v. Western Ohio Health Care Corp., 872 F. Supp. 469, 472 (S.D. Ohio 1994) ("Moreover, the continued retention of such fees does not inflict a new and accumulating injury upon the Plaintiffs; rather, they continue to suffer the same injury that was previously inflicted upon them, albeit in an ever increasing amount.").

63. United States v. Doherty, 867 F.2d 47, 61 (1st Cir. 1989).

64. Z Techs., 753 F.3d at 600 (quoting Barnosky Oils, Inc. v. Union Oil Co. of Calif., 665 F.2d 74, 81 (6th Cir. 1981)).

65. In general, the accrual of a state law cause of action depends on the laws of the particular state, rather than federal law. See, e.g., Bradford v. Bracken Cnty., 767 F. Supp. 2d 740, 750—51 (E.D. Ky. 2011). We note that while most states recognize the continuing violations (or "continuing tort") doctrine, the contours of that doctrine may vary significantly across jurisdictions. At least one state has overturned the doctrine by statute. See Garg v. Macomb Cnty. Comm. Mental Health Servs., 696 NW.2d 646 (Mich. 2005) (overruling continuing violations doctrine as conflicting with Mich. Comp. Law Ann. § 600.5827).

66. Zenith Radio Corp. v. Hazeltine Research, Inc. 401 U.S. 321, 338 (1971).

67. Petition for Writ of Certiorari at 8, SD-3C, LLC v. Oliver, No. 14-641 (indirect purchaser plaintiffs "purchas[ed] SD Cards from SD-3C licensees (like Samsung) or downstream resellers").

68. Id. at 13 (arguing that Ninth Circuit holding that "any purchase by the plaintiffs constitutes an overt act by the defendants, even when the plaintiff purchased the goods from someone other than the defendant . . . practically reverses Zenith’s rule and makes the defendant’s overt acts irrelevant").

69. See Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) ("Congress designed the Sherman Act as a ‘consumer welfare prescription.’") (quoting Robert Bork, The Antitrust Paradox 66 (1978)).

70. See, e.g., Reiter, 442 U.S. at 343 ("Certainly the leading proponents of the [Sherman Act] perceived the treble-damages remedy of what is now § 4 as a means of protecting consumers from overcharges resulting from price fixing."); United States v. Gravely, 840 F.2d 1156, 1161 (4th Cir. 1988) ("Horizontal price fixing is a root evil forbidden by the Sherman Act."); In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., No. 09-cv-3690, 2013 WL 4506000, at *10 (N.D. Ill. Aug. 23, 2013) (describing "higher prices" as "typical antitrust injury").

71. United States v. Doherty, 867 F.2d 47, 51 (1st Cir. 1989).

72. Id. at 60-61.

73. Id. at 61.

74. Id.

75. See id. at 61-62.

76. Id. at 61 (citing Fiswick v. United States, 329 U.S. 211, 216 (1946)).

77. United States v. Nazzaro, 889 F.2d 1158, 1163 (1st Cir. 1989).

78. Id.

79. Doherty, 867 F.2d at 61.

80. United States v. Kissel, 218 U.S. 601, 607 (1910).

81. Doherty, 867 F.2d at 61.

82. United States v. Grimm, 738 F.3d 498, 503 (2d Cir. 2013) (applying Doherty).

83. See id. ("[O]vert acts have ended when the conspiracy has completed its influence on an otherwise legitimate course of common dealing that remains ongoing for a prolonged time, without measures of concealment, adjustment or any other corrupt intervention by any conspirator.").

Additionally, antitrust plaintiffs might still seek injunctive relief under Section 16 of the Clayton Act, which is not subject to the statute of limitations in Section 4B. See Int’l Tel. & Tel. Corp. v. Gen. Tel. & Elec. Corp., 518 F.2d 913, 927 (9th Cir. 1975). Rather, claims for injunctive relief are subject to the equitable doctrine of laches. See id. at 927—28. While courts still generally apply a four-year limitations period, "equitable relief will not be barred by laches if the trial court, in the exercise of its discretion, determines (1) that sufficient reasons cognizable in equity excuse the delay or (2) that the delay caused defendants no prejudice." Argus, Inc. v. Eastman Kodak Co., 552 F. Supp. 589, 599 (S.D.N.Y. 1982) (citing Int’l Tel. & Tel. Corp., 518 F.2d 913, 929 (9th Cir. 1975)).

84. Rotella v. Wood, 528 U.S. 549, 551—52 (2000).

85. Id. at 558.

86. Id. at 554.

87. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 187 (1997) ("Indeed, the rule would permit plaintiffs who know of the defendant’s pattern of activity simply to wait, ‘sleeping on their rights,’ as the pattern continues and treble damages accumulate, perhaps bringing suit only long after the ‘memories of witnesses have faded or evidence is lost.’") (quoting Wilson v. Garcia, 471 U.S. 261, 271 (1985)).

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