DocketNumber： 15-2789
Citation Numbers： 860 F.3d 1059, 2017 WL 2694808, 2017 U.S. App. LEXIS 11260
Judges： Smith, Wollman, Loken, Riley, Colloton, Gruender, Benton, Shepherd, Kelly
Filed Date： 6/23/2017
Status： Precedential
Modified Date： 11/5/2024
Plaintiffs Morgan-Larson, LLC, Johnson Auto Electric, Inc., Speed Stop 32, Inc., and Yocum Oil Company, Inc. sued Defendants Ferrellgas Partners, L.P., Ferrellgas, L.P. (collectively “Ferrellgas”), AmeriGas Partners, L.P., AmeriGas Propane, Inc., and AmeriGas Propane, L.P. (collectively “AmeriGas”) under Section 1 of the Sherman Act, 15 U.S.C. § 1. The district court dismissed the claims as barred by the statute of limitations. Having jurisdiction under 28 U.S.C. § 1291, this court reverses.
I.
Ferrellgas
In 2009, a group of plaintiffs—indirect purchasers who bought tanks from retailers—filed a class action alleging Defendants conspired to reduce the amount of propane in the tanks while maintaining the price, in violation of Section 1 of the Sherman Act and state antitrust and consumer protection laws. In 2010, the parties settled. See In re Pre-Filled Propane Tank Mktg. & Sales Practices Litig., No. 09-2086-MD-W-GAF, 2010 WL 2008837 (W.D. Mo. May 19, 2010) (approving first amended settlement agreement).
In 2014, the Federal Trade Commission issued a complaint against Defendants— later settled—for conspiring to artificially inflate tank prices. See In re Ferrellgas
The district court dismissed Plaintiffs’ claims as barred by the statute of limitations. On appeal, a divided panel of this court affirmed. In re Pre-Filled Propane Tank Antitrust Litig., 834 F.3d 943 (8th Cir. 2016), as corrected (Aug. 25, 2016), reh’g en banc granted, opinion vacated (Dec. 29, 2016). This court granted rehearing en banc, vacated the panel decision, and now reverses.
II.
This court reviews de novo the grant of a motion to dismiss. Christiansen v. West Branch Cmty. Sch. Dist., 674 F.3d 927, 933-34 (8th Cir. 2012). To survive a motion to dismiss for failure to state a claim, the complaint must show the plaintiff “is entitled to relief,” Fed. R. Civ. P. 8(a)(2), by alleging “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plausible claim must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955. “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully.” Id., citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id., quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955 (citation omitted). Rather, the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
Also reviewed de novo is whether a claim is barred by the statute of limitations. McDonough v. Anoka Cnty., 799 F.3d 931, 939-40 (8th Cir. 2015). “A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) as barred by a statute of limitations if the complaint itself shows that the claim is time-barred.” Wong v. Wells Fargo Bank N.A., 789 F.3d 889, 897 (8th Cir. 2015), citing Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011). Actions under Section 1 of the Sherman Act must be filed “within four years after the cause of action accrued.” 15 U.S.C. § 15b. “Generally, the period commences on the date the cause of action accrues, that being, the date on which the wrongdoer commits an act that injures the business of another.” Varner v. Peterson Farms, 371 F.3d 1011, 1019 (8th Cir. 2004), citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971).
Plaintiffs allege a continuing violation—an exception to the general rule— which restarts the statute of limitations period each time the defendant commits an overt act. See id. “An overt act has 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.” Id., citing Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987).
III.
Plaintiffs allege two types of overt acts within the limitations period: (1) Defen
A.
The Supreme Court of the United States addressed the first issue in Klehr v. A.O. Smith Corporation, 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997). The Supreme Court defined a continuing violation under antitrust law:
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 plaintiffs knowledge of the alleged illegality at much earlier times.”
Klehr, 521 U.S. at 189, 117 S.Ct. 1984, quoting 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b, p. 145 (rev. ed. 1995) (hereinafter 2 Areeda & Hoven-kamp).
Defendants argue Klehr does not apply because it is a RICO case, and the quoted language is dicta. This court and others have held that “federal courts ‘are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings, particularly when ... [the dicta] is of recent vintage and not enfeebled by any [later] statement.’ ” Jones v. St. Paul Co., Inc., 495 F.3d 888, 893 (8th Cir. 2007), quoting City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 557 (8th Cir. 1993), quoting McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991). See American Civil Liberties Union of Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 447 (6th Cir. 2010) (“Lower courts are obligated to follow Supreme Court dicta, particularly where there is not substantial reason for disregarding it, such as age or subsequent statements undermining its rationale.”) (internal quotation marks omitted); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“While these statements are dicta, this court considers itself , bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings, particularly when the dicta is recent and not enfeebled by later statements.”).
Although panels have held that federal courts are “bound” by Supreme Court dicta, this goes too far. Appellate courts should afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent. See Official Comm. of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548, 561 (3d Cir. 2003) (en banc) (“Although the Committee is doubtless correct that the Supreme Court’s dicta are not binding on us, we do not view it lightly.... [W]e should not idly ignore considered statements the Supreme Court makes in dicta.”); United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (“We do not treat considered dicta from the Supreme Court lightly. Rather, we accord it appropriate deference .... As we have frequently acknowl
Klehr’s definition of a continuing violation follows longstanding Supreme Court precedent. The Supreme Court first applied the doctrine in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). Hanover alleged that United, its shoe machinery manufacturer and distributor, monopolized the industry in violation of Section 2 of the Sherman Act. Hanover Shoe, 392 U.S. at 483-84, 88 S.Ct. 2224. United moved to dismiss the claims as time-barred because “the earliest impact on Hanover of United’s lease only policy occurred in 1912.” Id. at 502 n.15, 88 S.Ct. 2224. Rejecting that argument, the Supreme Court said:
We are not dealing with a violation which, if it occurs at all, must occur within some specific and limited time span.... Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing and accumulating harm on Hanover. Although Hanover could have sued in 1912 for the injury then being inflicted, it was equally entitled to sue in 1955.
Id.
The Supreme Court again applied the doctrine in Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), a ease alleging antitrust violations by unlawful participation in patent pools. The issue was “whether Zenith can recover in its 1963 suit for damages suffered after June 1, 1959, as the consequence of pre-1954 conspiratorial conduct.” Zenith, 401 U.S. at 338, 91 S.Ct. 795. Describing when an antitrust claim accrues under 15 U.S.C. § 15b, the Court said:
Generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business.... In the context of a continuing conspiracy to violate the antitrust laws, such as the conspiracy in the instant ease, this has usually been understood to mean that 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.
Id. Klehr thus is consistent with the Supreme Court’s continuing violation doctrine as established in Hanover Shoe and Zenith.
Klehr also is consistent with Areeda and Hovenkamp’s Antitrust Law, the leading treatise on the subject. The version of the treatise quoted in Klehr explains that, “In the case of a continuing violation, each overt act that is part of the violation and that injures the plaintiff starts the statutory period running again.” 2 Areeda & Hovenkamp, at 145. Citing Hanover Shoe, it also directly addresses additional sales at fixed prices: “so long as an illegal price-fixing conspiracy was alive, each sale at the fixed price [started the four-year statute of limitation anew].” Id., citing Hanover Shoe, 392 U.S. at 502 n.15, 88 S.Ct. 2224.
Every other circuit to consider this issue applies Klehr, holding that each sale in a price-fixing conspiracy is an overt act that restarts the statute of limitations. See Oli
This court recently established that Klehr controls. In In re Wholesale Grocery Products Antitrust Litigation, 752 F.3d 728 (8th Cir. 2014), two rival wholesalers allegedly used an asset-exchange agreement to allocate customers and territories in violation of Section 1 of the Sherman Act. Wholesale Grocery, 752 F.3d at 729. The plaintiffs sued more than four years after the agreement. Id. at 731. The defendants argued the claims were untimely and the continuing violation theory inapplicable because sales at supracompetitive prices were not overt acts. Id. This court held:
The timeliness question in this case is controlled by Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997). In Klehr, the Supreme Court explained that “in the case of a continuing violation,” “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 plaintiffs knowledge of the alleged illegality at much earlier times.”
Id. at 736, quoting Klehr, 521 U.S. at 189, 117 S.Ct. 1984. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1052 (8th Cir. 2000) (recognizing that “each new sale by a Sherman Act price fixing defendant” is a “separate new overt act”).
Defendants argue Wholesale Grocery does not apply because “the anticom-petitive nature of the wholesalers’ agreement was not revealed until several years after the asset exchange.” Wholesale Grocery, 752 F.3d at 736. But, knowledge of anticompetitive conduct is not relevant to the continuing violation analysis. As the Supreme Court says, “each sale to the plaintiff, starts the statutory period run-
Defendants rely on Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir. 2004) to argue that continued anticompetitive conduct, without more, does not restart the limitations period. There, the defendants induced the plaintiffs to take out a loan based on false information. Varner, 371 F.3d at 1014-15. More than four years later, the plaintiffs sued for antitrust “tying” violations under a continuing violation theory. Id. at 1015. This court rejected the theory, holding that “[pjerformance of the alleged anticompetitive contracts during the limitations period is not sufficient to restart the period,” because “[a]cts that are merely unabated inertial consequences of a single act do not restart the statute of limitations.” Id. at 1019-20 (internal quotation marks omitted).
This case is distinguishable. Varner is about a tying arrangement, not “a price-fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years.” Klehr, 521 U.S. at 189, 117 S.Ct. 1984. Unlike the vertical restraint in Varner, the horizontal restraint here is a per se antitrust violation. Compare Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886, 888, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (“Restraints that are per se unlawful include horizontal agreements among competitors to fix prices. Our recent cases formulate antitrust principles in accordance with the appreciated differences in economic effect between vertical and horizontal agreements.”), with Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 735-36, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988) (“[A] vertical restraint is not illegal per se unless it includes some agreement on price or price levels.”). See P. Areeda & H. Hoven-kamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, ¶ 320c(1) (4th ed. 2016) (noting that application of the continuing violation doctrine in the antitrust context depends on the nature of the violation and whether it involves a “cartel, vertical agreement or refusal to deal, monopolization, or merger”) (citations omitted). As a per se. violation, the horizontal restraint has “manifestly anticompetitive effects, and lack[s] ... any redeeming virtue.” Leegin, 551 U.S. at 886, 127 S.Ct. 2705 (citation and internal quotation marks omitted). Defendants’ horizontal price-fixing agreement gave them “unlawfully acquired market power to charge an elevated price.” Wholesale Grocery, 752 F.3d at 736. Each time Defendants used that power (i.e., each sale), they committed an overt act, inflicting new and accumulating injury. See id. See also Klehr, 521 U.S. at 189, 117 S.Ct. 1984.
This case also is distinguishable from Midwestern Machinery Co., Inc. v. Northwest Airlines, Inc., 392 F.3d 265 (8th Cir. 2004), another case on which Defendants rely. Midwestern Machinery involved a merger claim brought under Section 7 of the Clayton Act. There, this court distinguished between merger and conspiracy cases:
Unlike a conspiracy or the maintaining of a monopoly, a merger is a discrete act, not an ongoing scheme. A continuing violation theory based on overt acts that further the objectives of an antitrust conspiracy in violation of § 1 of the Sherman Act or that are designed to promote a monopoly in violation of § 2 of that act cannot apply to mergers under § 7 of the Clayton Act.
Midwestern Mach., 392 F.3d at 271. Midwestern Machinery did not announce a rule for price-fixing conspiracies. To the contrary, the opinion expressly disavows
Finally, Defendants contend the Klehr rule encourages plaintiffs to sleep on their rights. The Supreme Court rejects this contention as irrelevant: “[E]ach sale to the plaintiff starts the statutory period running again regardless of the plaintiffs knowledge of the alleged illegality at much earlier times.” See Klehr, 521 U.S. at 189, 117 S.Ct. 1984 (internal quotation marks omitted). See also Hanover Shoe, 392 U.S. at 502 n.15, 88 S.Ct. 2224 (noting, in the case of a continuing violation under the Sherman Act, “Although [plaintiff] could have sued in 1912 for the injury then being inflicted, it was equally entitled to sue in 1955”). At any rate, the Klehr rule does not discourage timely filed suits because a “plaintiff cannot use an independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period.” Klehr, 521 U.S. at 190, 117 S.Ct. 1984. Instead, the rule prevents companies from “agreeing] to divide markets for the purpose of raising prices, waiting] four years to raise prices, then reapfing] the profits of their illegal agreement with impunity because any antitrust claims would be time barred.” Wholesale Grocery, 752 F.3d at 736.
Klehr’s definition of a continuing violation under antitrust law is consistent with Supreme Court precedent and the leading antitrust treatise and has been applied by this court to a price-firing conspiracy. It controls here. See id. (“The timeliness question in this case is controlled by Klehr.”). Under Klehr, “each sale to the plaintiffs]” in a price-firing conspiracy “starts -the statutory period running again.” Klehr, 521 U.S. at 189, 117 S.Ct. 1984.
B.
The other issue is whether the amended complaint adequately pleads a continuing violation sufficient to restart the statute of limitations. Under Klehr, Plaintiffs must allege: (1) “a price-firing conspiracy;” (2) “that brings about a series of unlawfully high priced sales” during the class period; and (3) “sale[s] to the plaintiffs]” during the class period. Id. In paragraph 111 of the amended complaint, Plaintiffs allege all three necessary elements:
Plaintiffs purchased Filled Propane Exchange Tanks from Blue Rhino or Am-eriGas on multiple occasions during the Class Period. On each occasion, Plaintiffs. purchased Filled Propane Exchange Tanks containing only 15 pounds of propane, pursuant to the conspiracy, but sold at the price they would have been charged for 17-pound tanks but for the conspiracy. As Defendants kept prices constant despite the fill level reduction, this amounted to an effective price increase of 13%.
Amended Complaint, at ¶111. Standing alone, this “formulaic recitation of the elements of a cause of action” may be insufficient. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. While the complaint “does not need detailed factual allegations,” it does require “more than labels and conclusions.” Id. Rather, the “[fjactual allegations must be enough to raise a right to relief above the speculative level.” Id.
Defendants argue that the amended complaint fails to allege a price-firing conspiracy because it does not “plausibly suggest that either Defendant’s decision to reduce fill levels was the result of an
The allegations of a price-fixing conspiracy are sufficient. Plaintiffs plead that Defendants “conspired and acted in concert to eliminate competition by reducing the amount of propane they would put in their tanks, thereby raising the per-pound price of propane across the country as well as by dividing the market for Filled Propane Exchange Tanks in violation of federal antitrust law.” Amended Complaint, at ¶1. Even more specifically, they plead that “Blue Rhino’s President, Tod Brown, and AmeriGas’s Director of National Accounts, Ken. Janish, exchanged seven phone calls on June 18 and 19, 2008, during which AmeriGas agreed that if Blue Rhino reduced its fill levels to 15 pounds per tank, AmeriGas would follow suit.” Id. at ¶9. Defendants later “engaged in dozens of calls, emails, and in-person meetings to coordinate a unified front that would leave the largest retailers and then the entire industry with no choice but to accept their demands.” Id. at ¶8. “[N]o later than spring 2008,” Defendants “reduced their fill levels from 17 pounds per tank to 15 pounds per tank while maintaining the same price per ‘full’ tank, for the purpose of increasing their margins on the sale of propane exchange tanks.” Id. at ¶7. “This collusion effectively raised the prices charged to Plaintiffs by more than 13% per pound.” Id.
“[S]howing parallel conduct or interdependence, without more,” “falls short of conclusively establishing] agreement or ... itself constituting] a Sherman Act offense.” Twombly, 550 U.S. at 553-54, 127 S.Ct. 1955 (alterations in original) (internal quotation marks omitted). However, “[a]n allegation of parallel conduct ... gets the complaint close to stating a claim.” Id. at 557, 127 S.Ct. 1955. With “further factual enhancement,” plaintiffs can “nudge[] their claims across the line from conceivable to plausible.” Id. at 557, 570, 127 S.Ct. 1955. The allegations here, state enough factual enhancements, to show more than parallel conduct. Plaintiffs plead facts showing Defendants acted col-lusively, pursuant to a collective interest to reduce the amount of propane in each tank sold, while maintaining the price. See Amended Complaint, at ¶¶1, 7-11, 66, 134. These allegations sufficiently allege a price-fixing conspiracy.
Next, Plaintiffs must allege the conspiracy “brings about a series of unlawfully high priced sales” during the class period. In their motion to dismiss, Defendants argue Plaintiffs fail to allege a continuing conspiracy, “invoking] continuing violations in name only and offering] no factual allegations indicating any continued conduct within the limitations period.” They assert that Plaintiffs’ “bare assertions that the conduct at issue continued ‘until at least late 2010,’ are conclusory and fail to meet the Twombly standard of plausibility.”
The allegations that the conspiracy continued into the class period are sufficient. Plaintiffs plead that “Defendants’ anticompetitive conduct lasted at least from July 21, 2008 through January 9, 2015” and “as a result of the[ir] anticom-petitive conduct ... Defendants have charged Plaintiffs and members of the proposed Class supracompetitive prices for Filled Propane Exchange Tanks through*out the Class Period.” Amended Com
Some of these allegations are “naked assertion[s] devoid of further factual enhancement,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted), that do not “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. See, e.g., Amended Complaint, at ¶¶120, 125. Others, however, list relevant individuals, acts, and conversations, providing “factual content” to support “the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. See, e.g., Amended Complaint, at ¶¶13, 60, 92. Defendants argue these allegations are “impermissibly vague and conclusory.” But Plaintiffs “need not provide specific facts in support of their allegations.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (emphasis added), citing Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Rather, they need only provide “sufficient factual information to provide the ‘grounds’ on which the claim rests, and to raise a right to relief above a speculative level.” Id., quoting Twombly, 550 U.S. at 555, 555 n.3, 127 S.Ct. 1955. “[C]onstru[ing] the complaint liberally in the light most favorable to” Plaintiffs, Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008), these allegations “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
According to Defendants, Plaintiffs’ allegation that “the propane conspiracy succeeded,” Amended Complaint, at ¶ 10, made the maintenance of fill levels and prices mere “unabated inertial consequences” and not overt acts continuing the conspiracy. But the question here is not whether the amended complaint alleges other overt acts in addition to sales to the Plaintiffs; the issue is whether the amended complaint alleges that the conspiracy continued when the sales took place. If so, under Klehr, “each sale to the plaintiff,” is an overt act that restarts the statute of limitations. Klehr, 521 U.S. at 189, 117 S.Ct. 1984. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (“[T]he conspiracy contemplated and embraced, at least by clear implication, sales to jobbers and consumers in the Mid-Western area at the enhanced prices. The making of those sales supplied part of the ‘continuous coop
In any event, this court has never applied the “unabated inertial consequences” test to a horizontal price-fixing conspiracy, let alone one where Plaintiffs allege that “sales pursuant to the conspiracy continued throughout the Class Period,” and “Defendants continued to have regular communications regarding pricing, fill levels, and market allocation until at least late 2010.” Amended Complaint, at ¶¶ 123, 109. See, e.g., Concord Boat, 207 F.3d at 1052 (“Continuing violations typically arise in the context of Sherman Act ... claims where multiple defendants are alleged to be part of an ongoing conspiracy.”). In context, Defendants’ conspiracy “succeeded” in “forcing] Walmart and other large retailers to accept the fill reduction” and raising the “wholesale prices at which [they] sold propane in Filled Propane Exchange Tanks to retailers throughout the United States.” Amended Complaint, at ¶10. This success did not end the conspiracy, but rather was a precondition to the price-fixing scheme Plaintiffs allege continued into the class period.
Finally, the amended complaint must allege “sale[s] to the plaintiff[s]” during the class period. Defendants do not dispute the sufficiency of these allegations: Since 2008 and continuing through the class period, Plaintiffs “purchased Filled Propane Exchange Tanks from one or more of the Defendants and ... paid inflated per-pound prices due to Defendants’ unlawful conspiracy.” Amended Complaint, at U1Í18-21.
The amended complaint alleges “sufficient factual matter, accepted as true,” to show a continuing violation to restart the statute of limitations, and, therefore, “to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Because it is not “clear from the face of the complaint that the action is barred by the applicable limitations period,” Varner, 371 F.3d at 1016, the district court erred in granting the motion to dismiss.
⅜ ⅜; ⅜ ⅜ ⅜ ⅜ ⅜
The judgment is reversed.
. Ferrellgas does business as "Blue Rhino.”
. Because continued sales at supracompeti-tive prices are overt acts under the continuing violations theory, this court need not address Plaintiffs’ allegations that Defendants’ conspiratorial communications about pricing and fill levels were additional overt acts sufficient to invoke the theory.