Hexcel Corporation v. Ineos Polymers, Inc. ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEXCEL CORPORATION,  No. 10-56765
Plaintiff-Appellant,
D.C. No.
v.
 2:09-cv-05334-
INEOS POLYMERS, INC., F/K/A BP MRP-RNB
Amoco Polymers, Inc.,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Mariana R. Pfaelzer, Senior District Judge, Presiding
Argued and Submitted
April 12, 2012—Pasadena, California
Filed June 1, 2012
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
6131
HEXCEL CORP. v. INEOS POLYMERS 6133
COUNSEL
John DeQ. Briggs (argued), Michael L. Keeley, Daniel J.
Matheson, Washington D.C., for plaintiff-appellant Hexcel
Corp.
Corey C. Watson, Los Angeles, Scott W. Fowkes (argued),
Kathleen Ehrhart, Russell King, Chicago, Illinois, for
defendant-appellee Ineos Polymers, Inc.
6134 HEXCEL CORP. v. INEOS POLYMERS
OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant Hexcel Corporation (Hexcel) sued
Defendant-Appellee Ineos Polymers, Inc., formerly known as
BP Amoco Polymers, Inc. (BP Amoco) on November 26,
2008 for antitrust injuries it allegedly suffered as the result of
a carbon fiber price-fixing scheme, beginning in 1992. To
avoid the effect of the applicable four-year statute of limita-
tions, 15 U.S.C. § l5b, Hexcel contends that the statute of lim-
itations was tolled due to fraudulent concealment by BP
Amoco. Hexcel contends that because of BP Amoco’s fraudu-
lent concealment, it neither knew, nor could have known, of
its potential claims until the conclusion of its own internal
investigation in February 2001.
Hexcel was aware of, and likely even participated in the
alleged carbon fiber price-fixing scheme, throughout the
1990s. Hexcel’s involvement in this scheme led to its being
subpoened in January 1999, along with other carbon fiber pro-
ducers BP Amoco, Toray, and Toho, by a federal grand jury
that was investigating a possible industry-wide price-fixing
conspiracy. Hexcel confirmed its knowledge of widespread
anticompetitive practices in its annual Form 10-K disclosures
in March 1999. Based upon the overwhelming evidence of
Hexcel’s knowledge in the record, we hold that Hexcel’s
claims are time-barred, and we affirm.
I. FACTUAL BACKGROUND AND PRIOR
PROCEEDINGS
Hexcel manufactures prepreg, a product made from carbon
fiber. Prepreg is sold to customers who convert it into various
composites for use in a wide variety of end products, includ-
ing commercial aerospace and military applications. Follow-
ing an acquisition in 1996, Hexcel also became a producer of
carbon fiber. Both before and after Hexcel’s acquisition, Hex-
HEXCEL CORP. v. INEOS POLYMERS 6135
cel was the largest purchaser of carbon fiber in the United
States.
On January 29, 1999, Hexcel received a grand jury sub-
poena from the Antitrust Division of the United States
Department of Justice (DOJ). No later than the date of the
receipt of that subpoena, Hexcel learned that the DOJ was
investigating an alleged industry-wide antitrust conspiracy in
the carbon fiber and prepreg industries, and that the targets of
the investigation included Hexcel, BP Amoco, Toray, and
Toho. Hexcel retained Skadden, Arps, Slate, Meagher & Flom
LLP (Skadden) to represent it in the government’s investiga-
tion. On March 30, 1999, Hexcel filed a Form 10-K with the
United States Securities and Exchange Commission, in which
it publicly disclosed that it was the “subject” of a federal
grand jury investigation into “the pricing of all manufacturers
of carbon fiber and carbon fiber prepreg.”1
On July 29, 1999, direct purchasers of carbon fiber class
action plaintiffs filed the first of several federal class action
lawsuits in the Central District of California against Hexcel,
BP Amoco, Toray, Toho, and others, alleging price-fixing and
unlawful market allocation under the Sherman Act, 15 U.S.C.
§ l. Over the next ten months, seven more direct purchasers
of carbon fiber filed suit in federal court alleging the same
conspiracy.
On January 24, 2003, Hexcel, BP Amoco, and the other
defendants amended a joint defense agreement (JDA) origi-
nally executed on April 29, 1999. The amended JDA included
a tolling provision of potential claims against each other for
the duration of the JDA, terminable upon 30 days written
notice. On August 13, 2008, BP Amoco terminated the tolling
1
In 2001, Hexcel’s antitrust lawyer from Skadden advised Hexcel that
the January 1999 subpoena was likely sufficient to put Hexcel on notice
of its own claim, and thus caused the statute of limitations to begin run-
ning.
6136 HEXCEL CORP. v. INEOS POLYMERS
provision as to any claims against it, effective September 12,
2008.
On November 26, 2008, Hexcel filed suit against BP
Amoco alleging violations of 15 U.S.C. §§ 1, 15, and 22 by
conspiring to fix the price of carbon fiber that BP Amoco sold
to Hexce1 during the 1990s. BP Amoco moved to dismiss,
contending that Hexcel’s lawsuit was time-barred. In support
of its motion, BP Amoco pointed to Hexcel’s Form 10-K pub-
lic disclosure on March 30, 1999 that it was the target of a
grand jury price-fixing investigation into the carbon fiber
market as the latest possible date its claims against BP Amoco
accrued. It also claimed that Hexcel knew of the govern-
ment’s investigation into the carbon fiber market before Hex-
cel made its disclosure, because it received the grand jury
subpoena from the DOJ on January 29, 1999.
Hexcel responded by claiming that it did not become aware
of its potential claims until after its own diligent inquiry pro-
duced enough evidence to support the filing of a lawsuit under
Rule 11’s “good faith basis” requirement, in February 2001.
The parties stipulated that any claims that had accrued before
Hexcel’s public disclosure were time-barred unless Hexcel
could prove that fraudulent concealment prevented it from
discovering its claims before that date. The district court
denied BP Amoco’s motion to dismiss, despite its doubts that
Hexcel would be able to prove the timeliness of its claims, on
the ground that statute of limitations challenges are generally
poorly suited for resolution on the pleadings.
The parties engaged in limited discovery regarding the stat-
ute of limitations issue. BP Amoco filed a Motion for Sum-
mary Judgment on August 31, 2010. Therein, BP Amoco
presented evidence that Hexcel had actual or constructive
knowledge of its claims prior to April 11, 1999, the date
which BP Amoco contended was the earliest possible date
Hexcel’s claims could have accrued. BP Amoco argued that
if Hexcel had acquired actual or constructive notice of its
HEXCEL CORP. v. INEOS POLYMERS 6137
claims between April 11, 1999 and the present, then the
claims would not be time-barred. However, BP Amoco
claimed, if Hexcel had actual or constructive notice of the rel-
evant facts showing antitrust violations before April 11, 1999,
then the statute of limitations had lapsed, and the claims were
time-barred.
Hexcel countered that its claims were not time-barred
because the receipt of the DOJ subpoena came as a complete
surprise, and that it had no reason to suspect price-fixing in
the carbon fiber industry. The district court rejected this argu-
ment on the ground that “BP Amoco [ ] presented enough evi-
dence to persuade the Court to the contrary. Hexcel
employees undisputedly knew or had reason to suspect that
price-fixing might be occurring in the carbon fiber market
before Hexcel received the DOJ subpoena on January 29,
1999.” After having received the subpoena and having been
alerted to the government’s investigation into the carbon fiber
market, the district court reasoned, Hexcel immediately began
investigating its own conduct and its possible claims against
other carbon fiber manufacturers. By March 30, 1999, Hex-
cel’s attorneys had interviewed several of Hexcel’s employ-
ees, who confirmed the extent of Hexcel’s knowledge or
suspicions of price-fixing.
On October 13, 2010, the district court entered summary
judgment for BP Amoco on the ground that Hexcel had actual
or constructive notice of its claims on or before April 10, 19992
and, therefore, that the statute of limitations for the filing of
Hexcel’s alleged antitrust claims had run. Hexcel timely
appealed.
2
As more fully described infra, the district court calculated the earliest
possible valid accrual date for the running of the statute of limitations as
April 10, 1999. In its appellate briefs, BP Amoco also adopted the April
10, 1999 date as the earliest valid accrual date. We also adopt the district
court’s calculation of the April 10, 1999 date as the earliest possible
accrual date for the running of the statute of limitations.
6138 HEXCEL CORP. v. INEOS POLYMERS
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
1294. We review de novo the district court’s grant of sum-
mary judgment. Conmar Corp. v. Mitsui & Co. (U.S.A.), Inc.,
858 F.2d 499, 501 (9th Cir. 1988) (citing T.W. Elec. Serv. v.
Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.
1987)).
Where the moving party has identified the portions of the
record that it claims show the absence of any genuine issue
of fact, the nonmoving party must set forth by affidavit or oth-
erwise specific facts demonstrating that there is a genuine
issue for trial. T.W. Elec. Serv., 809 F.2d at 830. The evidence
must be viewed, and inferences from the evidence must be
drawn, in the light most favorable to the nonmoving party. Id.
at 830-31.
III. DISCUSSION
A. Fraudulent Concealment
[1] Antitrust actions must be commenced within four years
from the date when the causes of action accrue. 15 U.S.C.
§ 15b. We do not require a plaintiff to actually discover its
antitrust claims before the statute of limitations begins to run.
Beneficial Standard Life Ins., Co. v. Madariaga, 851 F.2d
271, 274-75 (9th Cir. 1988).
[2] A statute of limitations may be tolled if the defendant
fraudulently concealed the existence of a cause of action in
such a way that the plaintiff, acting as a reasonable person,
did not know of its existence. Hennegan v. Pacifico Creative
Serv., Inc., 787 F.2d 1299, 1302 (9th Cir. 1986). “[The plain-
tiff] carries the burden of pleading and proving fraudulent
concealment; it must plead facts showing that [the defendant]
affirmatively misled it, and that [the plaintiff] had neither
actual nor constructive knowledge of the facts giving rise to
HEXCEL CORP. v. INEOS POLYMERS 6139
its claim despite its diligence in trying to uncover those facts.”
Conmar, 858 F.2d at 502 (citing Rutledge v. Boston Woven
Hose & Rubber Co., 576 F.2d 248, 249-50 (9th Cir. 1978))
(emphasis added). “A fraudulent concealment defense
requires a showing both that the defendant used fraudulent
means to keep the plaintiff unaware of his cause of action, and
also that the plaintiff was, in fact, ignorant of the existence of
his cause of action.” Wood v. Santa Barbara Chamber of
Commerce, Inc., 705 F.2d 1515, 1521 (9th Cir. 1983).
[3] If a defendant proves that the plaintiff had actual or
constructive knowledge of the facts giving rise to the claim,
the doctrine of fraudulent concealment does not apply. Id.
“The plaintiff is deemed to have had constructive knowledge
if it had enough information to warrant an investigation
which, if reasonably diligent, would have led to the discovery
of the fraud.” Beneficial Standard Life Ins., 851 F.2d at 275.
It is enough that the plaintiff “should have been alerted to
facts that, following duly diligent inquiry, could have advised
it of its claim.” Conmar, 858 F.2d at 502; see also GO Com-
puter, Inc. v. Microsoft Corp., 508 F.3d 170, 178 (4th Cir.
2007) (“Full knowledge often awaits discovery, and the very
notion of ‘inquiry notice’ implies something less than that”).
The district court here determined the earliest date Hexcel’s
causes of action could have accrued as follows:
• Hexcel filed suit on November 26, 2008, 75 days
after the effective date (September 12, 2008) of
BP Amoco’s termination of the tolling agreement
in the JDA.
• The tolling agreement tolled the running of the
statute of limitations for the period between Janu-
ary 24, 2003 and September 12, 2008.
• Subtracting the 75 days that expired between the
date when BP Amoco’s termination of the tolling
6140 HEXCEL CORP. v. INEOS POLYMERS
agreement became effective, and Hexcel’s filing
of the complaint, the district court found that a
period of three years and 290 days remained
within the original four-year statute of limita-
tions.
• The district court then subtracted the remaining
three years and 290 days from January 24, 2003,
the date the tolling agreement was executed,
establishing the earliest date for the accrual of the
statute of limitations as April 10, 1999.
If we use this date as a benchmark, and if Hexcel acquired
actual or constructive notice of its claims against BP Amoco
during the three years and 290 days before January 24, 2003,
its claims against BP Amoco would not be time-barred. How-
ever, if Hexcel had actual or constructive knowledge of facts
giving rise to the claims before April 10, 1999, then the stat-
ute of limitations would have lapsed and Hexcel’s claims
would be time-barred.3
We find that substantial evidence shows that Hexcel had
constructive, if not actual notice, of its claims long before
April 10, 1999. By its own admission, Hexcel knew of two
specific anticompetitive agreements between BP Amoco and
Toray during the early 1990s: (1) the distribution agreement
under which BP Amoco purchased and resold carbon fiber
manufactured by Toray; and (2) the licensing agreement
3
We review the district court’s analysis of the earliest possible accrual
date assuming that the tolling agreement contained in the JDA did not sta-
tutorily lapse after four years, on January 24, 2007. BP Amoco argues in
the alternative that, under Cal. Civ. Pro. Code § 360.5, the tolling agree-
ment contained in the JDA lapsed as a matter of law four years after its
execution, as a result of which, the earliest possible accrual date would be
November 27, 2000. We do not reach this question, however, because
Hexcel’s claim accrued no later than March 30, 1999, before either April
10, 1999 or November 27, 2000, so even if BP Amoco’s position were
correct, it would not affect our analysis.
HEXCEL CORP. v. INEOS POLYMERS 6141
under which BP Amoco used Toray technology to manufac-
ture certain carbon fiber products. Indeed, following the aban-
donment of joint venture negotiations in 1998, Hexcel’s
concern about BP Amoco’s agreements with Toray was so
great that it met with its general counsel to discuss the legality
of the practices.
[4] Moreover, undisputed evidence shows that Hexcel was
aware of industry-wide anticompetitive practices throughout
the 1990s. Hexcel knew that the executives from BP Amoco,
Toray and Toho met once a month in Tokyo to discuss carbon
fiber volumes, programs and pricing. In fact, Hexcel may
have participated in the very price-fixing conspiracy of which
it now complains when it discussed the possibility of “strad-
dling the market” and allocating regional control with Toho.
And, Hexcel had knowledge of both the specific agreements
and the industry-wide anticompetitive practices throughout
the 1990s, more than a decade before the filing of its com-
plaint. The January 29, 1999 grand jury subpoena and the
March 1999 Form 10-K disclosures should have served as the
final red flags alerting Hexcel of its claims.4 Accordingly,
Hexcel’s intimate knowledge of the carbon fiber price-fixing
conspiracy, coupled with the grand jury subpoena and the
Form 10-K disclosures, proves that Hexcel had constructive,
if not actual, knowledge of its claims well before April 10,
1999.
Hexcel argues that Conmar compels us to reverse the dis-
trict court’s judgment because there we held that summary
judgment is only appropriate “if uncontroverted evidence irre-
futably demonstrates that a plaintiff discovered or should have
discovered the cause of action but failed to file a timely com-
plaint.” Conmar, 858 F.2d at 502 (internal quotation marks
4
As noted supra, the record even shows that Hexcel’s lead antitrust
counsel advised it that the grand jury subpoena received on January 29,
1999, was likely sufficient to trigger the running of the statute of limita-
tions on its potential claims against BP Amoco.
6142 HEXCEL CORP. v. INEOS POLYMERS
and alterations omitted). In Conmar, we reversed on the
ground that a genuine issue of material fact existed as to
whether the plaintiff, Conmar, had constructive notice of its
claim sufficient to trigger the running of the statute of limita-
tions. However, Hexcel’s attempted analogy to the plaintiff in
Conmar overlooks critical distinctions between the two cases.
In Conmar, the only evidence proffered to defeat Conmar’s
defense of fraudulent concealment consisted of a tangentially
related guilty plea, an earlier filed indictment, and minimal
press coverage. 858 F.2d at 503-04. There was no evidence,
as there is here, that Conmar had earlier knowledge or suspi-
cion of anticompetitive practices from its suppliers, or that
Conmar had been subpoenaed to appear before a grand jury
investigating the very conduct it alleged against the defen-
dant. Whereas Hexcel was named as a co-defendant with BP
Amoco in multiple antitrust suits, Conmar had no relationship
with the parties involved in the litigation beyond that of
consumer-supplier. In addition, where Hexcel had been
advised by its lead antitrust counsel that the subpoena likely
triggered the running of the state of limitations, Conmar had
never been so counseled. Id.
Hexcel’s reliance on Merck & Co. v. Reynolds, Inc., 130 S.
Ct. 1784 (2010) is equally unpersuasive. Merck involved the
impact of inquiry notice on the statutory “discovery rule” in
federal securities law. 130 S. Ct. at 1797-98. As a preliminary
matter, the accrual doctrine for a discovery rule is conceptu-
ally distinct from the equitable tolling doctrine in fraudulent
concealment cases. Compare TwoRivers v. Lewis, 174 F.3d
987, 991 (9th Cir. 1999) (stating that under the federal com-
mon law discovery rule, “a claim accrues when the plaintiff
knows or has reason to know of the injury which is the basis
of the action”), with Johnson v. Henderson, 314 F.3d 409,
414 (9th Cir. 2002) (stating that fraudulent concealment
focuses on the actions of the defendant that are calculated to
prevent the plaintiff from filing suit within the limitations
period). Moreover, to the extent that the general principles of
Merck do apply, Merck is consistent with our rule under Con-
HEXCEL CORP. v. INEOS POLYMERS 6143
mar, that the statute of limitations begins to run when a rea-
sonably diligent plaintiff “would have discovered the
necessary facts.” Merck, 130 S. Ct. at 1798.
[5] We find Hexcel’s position to be more like that of the
plaintiff in Rutledge v. Boston Woven Hose & Rubber Co. 576
F.2d 248 (9th Cir. 1979). In Rutledge, the plaintiff first sued
five hydraulic hose manufacturers and producers for price-
fixing and price discrimination, in 1969. Id. at 249. The 1969
suit was subsequently dismissed, and the dismissal was
affirmed on appeal. In 1975, Rutledge sued again, this time
naming Boston Woven Hose & Rubber Co. as a defendant. Id.
The suit was virtually identical to the original suit filed in
1969. In addition to finding that the suit was barred by the
doctrine of collateral estoppel, we held that Rutledge’s claim
was time-barred under the four-year statute of limitations
because Rutledge had suspected a price-fixing conspiracy as
early as 1965, and further, could have easily discovered its
claim through the course of diligent discovery in the 1969
suit. Id. at 250. Similarly, Hexcel was named in multiple pre-
vious lawsuits as a co-defendant with BP Amoco. Moreover,
long predating those suits, Hexcel knew of, and allegedly
even participated in, the very price-fixing conspiracy for
which it later sued BP Amoco. Given Hexcel’s direct involve-
ment as co-defendant with BP Amoco in multiple previous
lawsuits for the same conduct of which it now complains, just
as in Rutledge, no reasonable juror could find that Hexcel
lacked sufficient notice of the facts giving rise to its claims.
576 F.2d a 249.
Morever, as we held in Volk v. D.A. Davidson Co., 816
F.2d 1406, 1416 (9th Cir. 1987), the doctrine of fraudulent
concealment may not be used to toll the statute of limitations
where a plaintiff has received an annual report providing con-
structive notice of its claims. Here, Hexcel not only received,
but authored on March 30, 1999 its Form 10-K detailing its
involvement, along with the other major carbon fiber and pre-
preg manufacturers, as a subject of a federal price-fixing
6144 HEXCEL CORP. v. INEOS POLYMERS
investigation. The mere receipt of such annual reports in Volk
was sufficient to show that several plaintiffs had “constructive
notice” of their claims. Id. at 1416. Here, Hexcel authored the
Form 10-K report detailing its involvement in a price-fixing
investigation in the carbon fiber and prepreg industries. Under
the reasoning of Volk, we conclude that Hexcel’s authorship
of its Form 10-K disclosures provided sufficient knowledge to
render its fraudulent concealment defense inapplicable.
The district court correctly applied the controlling law
under Conmar in holding that Hexcel had “actual or construc-
tive knowledge” of its claims on or before April 10, 1999.
The undisputed facts show that Hexcel had construc-
tive notice of its claims by April 10, 1999. Hexcel’s
receipt of the DOJ subpoena was preceded by a
decade of “red flags[,”] which should have excited
its suspicion. By the time Hexcel received the grand
jury subpoena on January 29, 1999, there were
enough red flags to put Hexcel on notice of its
claims. See GO Computer, Inc., 508 F.3d at 172
(affirming grant of summary judgment on statute of
limitations grounds where plaintiff had “enough red
flags,” including an ongoing government investiga-
tion, statements from customers, and industry rumors
“that a reasonably diligent person would have inves-
tigated and acted”). In fact, Hexcel’s own antitrust
lawyer opined that receipt of the DOJ subpoena was
sufficient to put Hexcel on notice of its claims and
trigger the running of the statute of limitations.
The record contains uncontroverted evidence that Hexcel pos-
sessed constructive knowledge of its claims before April 10,
1999 because, long before then, it “should have been alerted
to facts that, following duly diligent inquiry, could have
advised it of its claim.” Conmar, 858 F.2d at 502; see GO
Computer, Inc., 508 F.3d at 179 (“[I]t bears emphasis that the
date of inquiry notice is not a filing deadline. It is only the
HEXCEL CORP. v. INEOS POLYMERS 6145
date which a cause of action accrues and the four year period
allotted by Congress for plaintiff to investigate begins.”).
B. Summary Judgment
To put at issue a defendant’s evidence of a plaintiff ’s
knowledge sufficient to trigger the running of the statute of
limitations, the plaintiff must produce “at least some ‘signifi-
cant, probative evidence tending to support the complaint,’ ”
to create a genuine issue of material fact. T.W. Elec. Serv.,
809 F.2d at 630 (quoting First Nat’l Bank v. Cities Serv. Co.,
391 U.S. 253, 290 (1968)). “[C]onclusory, self-serving affi-
davit[s], lacking detailed facts and any supporting evidence,”
are insufficient to create a genuine issue of material fact. FTC
v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.
1997). Declarations must be made with personal knowledge;
declarations not based on personal knowledge are inadmissi-
ble and cannot raise a genuine issue of material fact. See Skill-
sky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990);
see also Fed. R. Civ. P. 56(c)(4). The district court may grant
summary judgment only if uncontroverted evidence “irrefut-
ably demonstrates that a plaintiff discovered or should have
discovered [the cause of action] but failed to file a timely
complaint.” Volk, 816 F.2d at 1417.
[6] To refute BP Amoco’s proof of Hexcel’s constructive
knowledge, Hexcel proffered eight declarations of current and
former employees containing virtually identical boiler-plate
general denials of Hexcel’s knowledge of its claim prior to
2001. We hold that the district court did not usurp the role of
the jury in considering these declarations because it held,
without rejecting or treating them as sham affidavits, that
Hexcel’s “self-serving, boilerplate declarations” were narrow,
conclusory denials, insufficient to create a genuine issue of
material fact against BP Amoco’s voluminous evidence.
To further refute BP Amoco’s evidence of Hexcel’s knowl-
edge specifically based on the January 1999 subpoena, Hexcel
6146 HEXCEL CORP. v. INEOS POLYMERS
proffered a declaration from its lead antitrust counsel in which
he declared that his previous advice to Hexcel, that the statute
of limitations on its claim likely began to run on January 29,
1999, did not consider the possibility of a fraudulent conceal-
ment defense. Such contradictory, self-serving testimony like-
wise fails to create a genuine issue of material fact. Publ’g
Clearing House, 104 F.3d at 1171. Indeed, Hexcel’s other
declarations, such as the Mettenet declaration, regarding
whether Hexcel employee, Mike Mettenet, actually knew of
the price-fixing rumors, were equally unhelpful concerning
the question of whether he subjectively suspected a price-
fixing conspiracy. Ultimately, however, we agree with the
district court that whether a single executive actually knew
about the price-fixing conspiracy fails to counterbalance BP
Amoco’s substantial evidence that a reasonable plaintiff
“should have been alerted to facts that, following duly diligent
inquiry, could have advised it of” the price-fixing conspiracy.
Conmar, 858 F.2d at 502.
Hexcel’s argument that the district court drew various
inferences in BP Amoco’s favor is also unavailing; the district
court dealt only with the objective standard of actual or con-
structive notice, based upon the record evidence before it.
Accordingly, the district court did not err in concluding that
Hexcel’s claims were time-barred and entering summary
judgment for BP Amoco because Hexcel failed to proffer evi-
dence sufficient to create any genuine issues of material fact.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court holding Hexcel’s claims are time-barred under
the applicable four-year statute of limitations.