Morgan Larson v. Ferrellgas Partners

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2789
___________________________
In re: In Re: Pre -Filled Propane Tank Antitrust Litigation
------------------------------
Hartig Drug Company; Jason Moore’s Texaco, L.L.C., doing business as Moore’s
Texaco; Mario Ortiz; Stephen Morrison; Steven Tseffos; Glenville Shell, LLC;
Zarco USA, Inc.; AQ Investments, LLC; LJax Enterprises, Inc.; J & V
Management, LLC; Butch’s Central Coastal, Inc.; Zerka’s Party Store, Inc.; OM
Commercial Neenah Oil, Inc.; CCLAS, Inc.; Hopewell Exxon, LLC; Tuban
Petroleum, LLC; 33 and a Third, LLC; Tuban 610, LLC; Highway 182, LLC;
West Main Street, LLC; Roth’s Country Corner, Inc.; 1919 Airline Hwy., LLC;
East Airline, LLC; Gramercy Cheap Smokes, LLC; Conti’s Service Center, Inc.;
Route 49 Gas & Go, Inc.; Surinder Kaur, Inc.
lllllllllllllllllllll Plaintiffs
Morgan-Larson, LLC
lllllllllllllllllllll Plaintiff - Appellant
Ashville General Store, Inc.; Sean Venezia; Michael S. Harvey; Gregory
Ludvigsen; Arthur Hull; Alan Rockwell; James Halgerson; Thomas R. Clark;
Bryce Mander; Alex Chernavsky; Arrow Hardware, LLC; Birdie’s, Inc.; Alex
Chernavsky; Lochraven Sunoco, Inc.; American Auto Repair
lllllllllllllllllllll Plaintiffs
Johnson Auto Electric, Inc.
lllllllllllllllllllll Plaintiff - Appellant
Cedar Holly Investments, LLC; Tuckerton Lumber Company; Ace High Auto
Repair & Propane; CEFO Enterprise Corp.; Jon Wall, Inc.; RC Gasoline
lllllllllllllllllllll Plaintiffs
Speed Stop 32, Inc.
lllllllllllllllllllll Plaintiff - Appellant
Zarco USA, Inc.; Dunmore Oil Co., Inc.; JoJo Oil Co., Inc.; Ekonomy Enterprises, Inc.
lllllllllllllllllllll Plaintiffs
Yocum Oil Company, Inc.
lllllllllllllllllllll Plaintiff - Appellant
v.
Ferrellgas Partners, L.P. a limited partnership; Ferrellgas, L.P. a limited
partnership, doing business as Blue Rhino; AmeriGas Partners, LP a limited
partnership; UGI Corporation; AmeriGas Propane, Inc., doing business as
AmeriGas Cylinder Exchange; AmeriGas Propane, LP
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: April 4, 2017
Filed: June 23, 2017
____________
Before SMITH, Chief Judge, WOLLMAN, LOKEN, RILEY, COLLOTON,
GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.
____________
-2-
BENTON, Circuit Judge.
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.
Ferrellgas1 and AmeriGas are the largest distributors of pre-filled propane
exchange tanks, which come in a standard size. Before 2008, Defendants filled the
tanks with 17 pounds of propane. In 2008, due to rising propane prices, Defendants
reduced the amount of propane in each tank from 17 to 15 pounds, but maintained the
same price. According to the amended complaint, “this amounted to an effective
price increase of 13%.”
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).
1
Ferrellgas does business as “Blue Rhino.”
-3-
In 2014, the Federal Trade Commission issued a complaint against
Defendants—later settled—for conspiring to artificially inflate tank prices. See In
re Ferrellgas Partners, L.P., et al., Docket No. 9360, 2014 WL 1396496 (Mar. 27,
2014). Later that year, Plaintiffs in this case—direct purchasers who bought tanks
directly from Defendants for resale—sued. They allege Defendants colluded to
decrease the fill level of tanks and continued to charge “supracompetitive prices . .
. throughout the Class Period.”
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 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (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. “The plausibility standard . . . asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id., citing
Twombly, 550 U.S. at 556. “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 (citation omitted).
-4-
Rather, the facts alleged “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
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
(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)
Defendants’ sales to Plaintiffs at artificially inflated prices; and (2) conspiratorial
communications between Defendants about pricing and fill levels. The first type of
act is at issue here—whether sales at artificially inflated prices are overt acts that
-5-
restart the statute of limitations.2 Also at issue is whether Plaintiffs allege a
continuing violation exception sufficient to restart the statute of limitations.
A.
The Supreme Court of the United States addressed the first issue in Klehr v.
A.O. Smith Corporation, 521 U.S. 179 (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 plaintiff’s
knowledge of the alleged illegality at much earlier times.”
Klehr, 521 U.S. at 189, quoting 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶
338b, p. 145 (rev. ed. 1995) (hereinafter 2 Areeda & Hovenkamp).
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. 2015), 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
2
Because continued sales at supracompetitive 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.
-6-
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 acknowledged, Supreme Court dicta have a weight that is
greater than ordinary judicial dicta as prophecy of what that Court might hold;
accordingly, we do not blandly shrug them off because they were not a holding.”)
(citations and internal quotation marks omitted); Nichol v. Pullman Standard, Inc.,
889 F.2d 115, 120 n.8 (7th Cir. 1989) (“This Court should respect considered
Supreme Court dicta.”); Pierre N. Leval, Judging Under the Constitution: Dicta
About Dicta, 81 N.Y.U.L. Rev. 1249, 1269-75 (2006).
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 (1968). Hanover alleged that United,
its shoe machinery manufacturer and distributor, monopolized the industry in
-7-
violation of Section 2 of the Sherman Act. Hanover Shoe, 392 U.S. at 483-84.
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. 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 (1971), a case 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. 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 case, 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.
-8-
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.
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
Oliver v. SD-3C LLC, 751 F.3d 1081, 1086 (9th Cir. 2014) (“Turning first to the
continuing violation exception, the Supreme Court and federal appellate courts have
recognized that each time a defendant sells its price-fixed product, the sale constitutes
a new overt act causing injury to the purchaser and the statute of limitations runs from
the date of the act.”); In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896,
902 (6th Cir. 2009) (“Klehr simply reiterates that the antitrust laws recognize
continuing violations and, more precisely, that a new § 1 claim arises each time a
company sells a price-fixed product.”); In re Cotton Yarn Antitrust Litig., 505 F.3d
274, 290-91 (4th Cir. 2007) (“In 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. Thus,
in cases like this one involving allegations of 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.”) (citation and internal quotation marks
omitted); 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) (“An act constitutes a
continuing violation, if it injures the plaintiff over a period of time. Even though the
-9-
illegal act occurs at a specific point in time, if it inflicts continuing and accumulating
harm on a plaintiff, an antitrust violation occurs each time the plaintiff is injured by
the act. For example, when sellers conspire to fix the price of a product, each time
a customer purchases that product at the artificially inflated price, an antitrust
violation occurs and a cause of action accrues. As a cause of action accrues with each
sale, the statute of limitations begins to run anew.”) (citations and internal quotation
marks omitted).
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 plaintiff’s knowledge of the alleged
illegality at much earlier times.”
Id. at 736, quoting Klehr, 521 U.S. at 189. 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
anticompetitive nature of the wholesalers’ agreement was not revealed until several
years after the asset exchange.” Wholesale Grocery, 752 F.3d at 736. But,
-10-
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 running again, regardless of the plaintiffs’ knowledge of the alleged illegality
at much earlier times.” Klehr, 521 U.S. at 189 (emphasis added) (internal quotation
marks omitted).
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 “[p]erformance 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. 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 (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 (1988) (“[A] vertical restraint is not illegal per se unless it includes some
agreement on price or price levels.”). See P. Areeda & H. Hovenkamp, 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
-11-
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 (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.
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 any
modification to the Klehr continuing violation doctrine as applied in price-fixing
conspiracies. Id. at 269 (“Midwestern, however, cites no appellate decisions applying
[the continuing violation] principle to § 7 claims. Rather, it attempts to analogize this
case to other areas of antitrust law where such a theory has in fact been recognized.”).
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
-12-
the plaintiff starts the statutory period running again regardless of the plaintiff’s
knowledge of the alleged illegality at much earlier times.” See Klehr, 521 U.S. at 189
(internal quotation marks omitted). See also Hanover Shoe, 392 U.S. at 502 n.15
(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. Instead, the rule prevents companies
from “agree[ing] to divide markets for the purpose of raising prices, wait[ing] four
years to raise prices, then reap[ing] 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-fixing conspiracy. It controls here. See id. (“The timeliness
question in this case is controlled by Klehr.”). Under Klehr, “each sale to the
plaintiff[s]” in a price-fixing conspiracy “starts the statutory period running again.”
Klehr, 521 U.S. at 189.
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-fixing conspiracy;” (2) “that brings about a series
of unlawfully high priced sales” during the class period; and (3) “sale[s] to the
plaintiff[s]” during the class period. Id. In paragraph 111 of the amended complaint,
Plaintiffs allege all three necessary elements:
-13-
Plaintiffs purchased Filled Propane Exchange Tanks from Blue Rhino
or AmeriGas 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. While
the complaint “does not need detailed factual allegations,” it does require “more than
labels and conclusions.” Id. Rather, the “[f]actual 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-fixing
conspiracy because it does not “plausibly suggest that either Defendant’s decision to
reduce fill levels was the result of an agreement.” The district court did not rule on
this issue. Rather, it assumed the existence of an agreement: “Unlike in Wholesale
Grocery Products, the anticompetitive nature of Defendants’ agreement was not
revealed years later during the limitations period;” “Plaintiffs make no allegations
that Defendants ever made any changes or modifications to their agreement during
the limitations period;” and “[C]ommunications were mere reaffirmations of the prior
agreement.”
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
-14-
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 establish[ing] agreement or . . . itself constitut[ing] a Sherman Act
offense.” Twombly, 550 U.S. at 553-54 (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. With “further factual enhancement,” plaintiffs
can “nudge[] their claims across the line from conceivable to plausible.” Id. at 557,
570. The allegations here state enough factual enhancements to show more than
parallel conduct. Plaintiffs plead facts showing Defendants acted collusively,
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, “invok[ing] continuing
violations in name only and offer[ing] 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.”
-15-
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]
anticompetitive conduct . . . Defendants have charged Plaintiffs and members of the
proposed Class supracompetitive prices for Filled Propane Exchange Tanks
throughout the Class Period.” Amended Complaint, at ¶¶120-21. See id. at ¶¶122-
23. Despite the settlement agreement with indirect purchasers in 2010, they plead
that “Defendants maintained their illegally agreed-upon fill levels rather than
resuming competition, preserving the unlawfully inflated prices that their conspiracy
had produced.” Id. at ¶108. See id. at ¶124. Plaintiffs also plead that “[t]hrough at
least the end of 2010, Defendants regularly communicated to assure compliance with
the conspiracy,” “monitor[ing] the market to ensure that neither cheated on their
anticompetitive agreement by offering a price reduction or competing for one
another’s customers or geographic markets.” Id. at ¶92. See id. at ¶125. More
specifically, they plead that in 2008, AmeriGas’s Director of National Accounts Ken
Janish told Blue Rhino’s President Tod Brown that “it would follow closely behind
Blue Rhino if it successfully implemented its fill reduction, and that it would not sell
both 15-pound and 17-pound tanks” and “Janish had similar conversations with
employees of Blue Rhino on numerous occasions from at least as early as 2007 until
at least late 2010.” Id. at ¶60. Additionally, “during calls and meetings with
AmeriGas executives occurring at least as late as 2010, Janish repeatedly dismissed
concerns that Blue Rhino might undercut AmeriGas on price or fill levels with words
to the effect of, ‘I talked to Blue Rhino, and that’s not going to happen.’” Id. at ¶13.
See id. at ¶62.
Some of these allegations are “naked assertion[s] devoid of further factual
enhancement,” Iqbal, 556 U.S. at 678 (internal quotation marks omitted), that do not
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. See,
e.g., Amended Complaint, at ¶¶120, 125. Others, however, list relevant individuals,
acts, and conversations, providing “factual content” to support “the reasonable
-16-
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. 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 (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. “[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.
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. See United States v. Socony-Vacuum Oil Co.,
310 U.S. 150, 253 (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
cooperation’ necessary to keep the conspiracy alive.”).
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.
-17-
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 “forc[ing] 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
¶¶18-21.
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, quoting
Twombly, 550 U.S. at 570. 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.
*******
The judgment is reversed.
SHEPHERD, Circuit Judge, with whom WOLLMAN and LOKEN, Circuit Judges,
join, dissenting, and with whom KELLY, Circuit Judge, joins Parts I.B and
II of the dissent.
-18-
Today’s opinion incorrectly interprets Supreme Court precedent, fails to hold
the plaintiffs’ complaint to the plausibility standard of Twombly and Iqbal, and
ignores the purposes of the antitrust statute of limitations. For these reasons, I
respectfully dissent.
I.
First, the opinion interprets the antitrust discussion in Klehr completely
divorced from the facts and issues confronting the Supreme Court in that case. As a
result, the majority fails to apply antitrust law correctly to the case before us. Had the
majority considered Klehr in context, it would have found that plaintiffs must show
a live, ongoing conspiracy within the limitations period to survive a motion to
dismiss.
A.
Klehr v. A.O. Smith Corp. was a RICO case that rejected the Third Circuit’s
“last predicate rule” for tolling claims brought under that statute. 521 U.S. 179, 187
(1997). Because “Congress consciously patterned civil RICO after the Clayton Act,”
the Supreme Court employed a “Clayton Act analogy” to explain why the Third
Circuit had erred. Id. at 189 (emphasis added). In its attempt to explain the tolling
requirements of RICO, the Court offered the following restatement of 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 . . . .”
-19-
Id. (emphasis added) (quoting 2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust
Law ¶ 338b, at 145 (rev. ed. 1995)).
Klehr was a RICO case, not an antitrust case. The parties in Klehr litigated
RICO issues, not antitrust issues. The Supreme Court’s short discussion of antitrust
law served only to illuminate the discussion of tolling RICO claims.3 The Court was
neither announcing some new standard in antitrust law nor redefining a continuing
violation. It simply used established principles of antitrust law to “help . . . make[]
clear” the RICO issue. Id.
With the excerpted language from Klehr in its proper context, we can better
understand the antitrust principles it espouses. For its analogy, the Supreme Court
turned to the leading treatise on the subject—Areeda and Hovenkamp’s Antitrust
Law. The original quote from Areeda reads, “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, supra, at 145. Areeda says
nothing about “each sale to the plaintiff” constituting an overt act at this point. But
Areeda does reach the issue just a few sentences later where it explains that, “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. (emphasis added) (citing Hanover Shoe v.
United Shoe Mach. Corp., 392 U.S. 481, 502 n.15 (1968)). Therefore each sale to the
plaintiff can start the statutory period running again so long as an illegal price-fixing
conspiracy is alive and ongoing.
3
Judge Posner has described dicta as “any statement made by a court for use in
argument, illustration, analogy or suggestion. It is a remark, an aside, concerning
some rule of law or legal proposition that is not necessarily essential to the decision
and lacks the authority of adjudication.” United States v. Crawley, 837 F.2d 291, 292
(7th Cir. 1988) (internal quotation marks omitted). Because I believe the discussion
of antitrust in Klehr falls under the category of dicta, I do not believe it deserves the
lofty position of authority afforded to it by the majority’s opinion. But I will proceed
in my analysis as if the language is binding authority on us.
-20-
B.
Klehr is fully consonant with this interpretation. The antitrust analogy
presumes that “a price-fixing conspiracy that brings about a series of unlawfully high
priced sales over a period of years” continues to exist. Klehr, 521 U.S. at 189.
Further, the excerpted language states that “each sale to the plaintiff” must be “part
of the violation.” Id. (internal quotation marks omitted). So the plaintiffs must show
that the sales occurred as a result of a live, ongoing conspiracy. See Midwestern
Mach. Co. v. Nw. Airlines, Inc., 392 F.3d 265, 269 (8th Cir. 2004) (“The typical
antitrust continuing violation occurs in a price-fixing conspiracy . . . when
conspirators continue to meet to fine-tune their cartel agreement.”). This
interpretation in no way “limit[s] Supreme Court opinions precisely to the facts of
each case.” See Jones v. St. Paul Cos., 495 F.3d 888, 893 (8th Cir. 2007) (internal
quotation marks omitted). Instead, it gives meaning to an isolated excerpt by
considering the broader factual context from which the excerpt came.
The other two Supreme Court cases cited in the majority opinion—Hanover
Shoe and Zenith Radio—also support the proposition that plaintiffs must make a
plausible showing of a live, ongoing conspiracy. In Hanover Shoe, Hanover alleged
“that United’s practice of leasing and refusing to sell its more complicated and
important shoe machinery” violated antitrust law. 392 U.S. at 483. In its defense,
United argued that “because the earliest impact on Hanover of United’s lease only
policy occurred in 1912, Hanover’s cause of action arose during that year and is now
barred by the . . . statute of limitations.” Id. at 502 n.15. The Court rejected this
argument because United’s conduct was a continuing violation. Id. Importantly, the
underlying conspiratorial activity (United’s lease-only policy) was ongoing from
1912 through 1955. Id. This continued conspiratorial activity is what rendered each
lease—and refusal to sell—an overt act that restarted the limitations period. See 2
Areeda & Hovenkamp, supra, at 145. Just as with Hanover Shoe, so too with Zenith
Radio. Zenith sued Hazeltine Research over Hazeltine’s “participation in patent
-21-
pools” that violated the Sherman Act. Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 323 (1971). Zenith sought to recover damages suffered during the
limitations period, even though Hazeltine entered the patent pools long before the
limitations period. Id. at 338. The Court held that Zenith could recover damages,
noting that Hazeltine was engaging in a “continuing conspiracy to violate the antitrust
laws,” and so each act harmful to Zenith restarted the limitations period. Id.
(emphasis added). In Klehr, Hanover Shoe, and Zenith Radio, the Supreme Court
understood that a necessary requirement for a continuing violation of antitrust laws
is the existence of a live, ongoing conspiracy. Without such a requirement, plaintiffs
could sue many years after an antitrust violation occurred and seek damages for
subsequent sales without tying the prior antitrust violation to the subsequent sales.
II.
Accordingly, the plaintiffs must sufficiently allege that the defendants engaged
in a live, ongoing conspiracy sometime in the limitations period to survive a motion
to dismiss. The plaintiffs can accomplish this task 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The plausibility standard demands “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The plaintiffs have
failed to make a plausible claim if all they offer are “labels and conclusions,” “a
formulaic recitation of the elements of a cause of action,” or “naked assertion[s]”
devoid of “further factual enhancement.” Twombly, 550 U.S. at 555-57.
In determining whether the plaintiffs have pled a plausible cause of action, the
majority relies heavily on paragraph 111 of the amended complaint:
Plaintiffs purchased Filled Propane Exchange Tanks from Blue Rhino
or AmeriGas on multiple occasions during the Class Period. On each
-22-
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 ¶ 111, ECF No. 102. The majority takes these assertions,
together with paragraphs 7 through 9, which allege facts occurring in 2008, and holds
that the plaintiffs have “sufficiently allege[d] a price-fixing conspiracy.”
The majority’s holding flies in the face of Twombly and Iqbal. Paragraph 111
is, at best, a “formulaic recitation of the elements of a cause of action” insufficient
under the plausibility standard. See Twombly, 550 U.S. at 555. And paragraphs 7
through 9 deal only with facts from 2008, well outside the limitations period. The
majority opinion fails to discuss one factual allegation from within the limitations
period in concluding that the plaintiffs have sufficiently alleged a conspiracy. This
is perhaps not surprising, since virtually all of the amended complaint comprises
either factual allegations from before the limitations period or naked assertions and
conclusions.4
4
There is but one possible exception: paragraph 13, which alleges that “during
calls and meetings with AmeriGas executives occurring at least as late as 2010, Janish
repeatedly dismissed concerns that Blue Rhino might undercut AmeriGas on price or
fill levels with words to the effect of, ‘I talked to Blue Rhino, and that’s not going to
happen.’” But even this allegation falls short of the Twombly standard. The
complaint does not allege whether the conversations between AmeriGas and Blue
Rhino occurred during the limitations period, only that comments from those alleged
conversations were purportedly shared in a later retelling of the conversations. And
the retelling can only report on “words to the effect of” whatever was said. The dates
of the conversations are left to the widest range of time, though curiously late enough
to just reach into the limitations period. To be sure, the complaint names one
individual employed by AmeriGas. But naked assertions of misconduct, combined
with a name discovered from a company directory, are not enough to survive a motion
to dismiss under Twombly and Iqbal.
-23-
At oral argument, plaintiffs’ counsel essentially conceded that the plaintiffs
lack any factual allegations of a live, ongoing conspiracy during the limitations
period. In response to a question asking whether there have been any overt acts to
maintain the conspiracy during the limitations period, counsel could only identify
paragraph 92 of the complaint. But paragraph 92 simply makes naked assertions
—devoid of factual enhancements—that the defendants “regularly communicated”
and “monitored the market” to ensure compliance. Pressed further about whether
plaintiffs had alleged an ongoing price-fixing conspiracy, plaintiffs’ counsel directed
the court to paragraph 111—a mere recitation of the elements of the cause of action.
After a thorough review of the amended complaint, I find no plausible
allegation of a live, ongoing conspiracy occurring within the limitations period.
Indeed, the only factual allegations within the limitations period concern the fill
levels of the propane tanks. Taking the factual allegations as true, the defendants
conspired in 2008 to reduce the fill levels from 17 to 15 pounds.5 The fill levels for
propane tanks sold by all defendants remain at 15 pounds today. But allegations that
fill levels remain at the same levels cannot suffice. Showing parallel conduct,
without more, “falls short of conclusively establish[ing] agreement or . . . itself
constitut[ing] a Sherman Act offense.” Id. at 553 (alterations in original) (internal
quotation marks omitted). “Even conscious parallelism, a common reaction of firms
in a concentrated market [that] recogniz[e] their shared economic interests and their
interdependence with respect to price and output decisions[,] is not in itself
unlawful.” Id. at 553-54 (first and second alterations in original) (internal quotation
marks omitted). In the end, there is a simple question before us: Have the plaintiffs
5
In fact, the FTC, whose 2014 lawsuit precipitated this case, disagrees with the
plaintiffs’ allegations. “The Commission’s Complaint does not allege that [the
defendants’] initial decisions to reduce fill levels to 15 pounds were the result of an
agreement.” In re Ferrellgas Partners, L.P., FTC Docket No. 9360, 2014 WL
5787605, at *6 (Oct. 31, 2014) (emphasis added).
-24-
plausibly pled a live, ongoing conspiracy among these competitors? The answer to
this question is likewise simple: No.
III.
Today’s opinion runs counter to the purposes that underlie the imposition of
a limitations period in private antitrust actions. The first purpose is to limit the public
harm incurred by the conspiracy. See Z Techs. Corp. v. Lubrizol Corp., 753 F.3d
594, 603 (6th Cir. 2014) (“By encouraging parties to bring suits earlier, the statute of
limitations attempts to minimize the public harm that might arise from harmful
monopolies . . . .”). Permitting parties like the plaintiffs to bring antitrust suits
reflects a “congressional objective of encouraging civil litigation to supplement
Government efforts to deter and penalize the . . . prohibited practices.” Rotella v.
Wood, 528 U.S. 549, 557 (2000) (“The object . . . is thus not merely to compensate
victims but turn them into prosecutors, ‘private attorneys general’ . . . .”). Because
“private suits under the antitrust laws are allowed to correct public wrongs, it is
appropriate to encourage suits as soon as possible to stop (or at least compensate)
harm to the public.” Midwestern Mach., 392 F.3d at 272. Congress did not intend
for plaintiffs to sit back, with full knowledge of the 2008 conspiracy, and wait six
years before finally correcting a public harm.6 See Rotella, 528 U.S. at 559
(describing the antitrust enforcement scheme as “aimed at rewarding the swift who
undertake litigation in the public good”).
Beyond a concern for limiting public harm, a limitations period also provides
repose to defendants and avoids the unnecessary defense of stale claims. The
6
The majority opinion offers this small comfort to defendants: a plaintiff
cannot recover for injuries suffered outside the four-year limitations period. But I see
nothing in this opinion preventing a new lawsuit against the defendants four (or 40)
years from now so long as fill levels remain at 15 pounds, even if price fluctuates.
Small comfort indeed.
-25-
antitrust limitations period provides finality and certainty to business transactions.
2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 320a, at 325 (4th ed.
2014). It saves defendants from the specter of perpetual litigation. And the need for
timely prosecution of claims is especially great in antitrust law. “Antitrust liability
depends not only on the parties’ acts but also on many surrounding circumstances,
including the behavior of rival firms and general market conditions—matters that may
be hard to reconstruct long afterwards.” Id. at 326. Allowing suits to be brought
many years after the antitrust violation occurred may well deprive defendants the
opportunity to present a proper defense.
IV.
In today’s opinion, the majority has morphed Klehr into a sledgehammer and
then reared that hammer to shatter the antitrust statute of limitations. I do not believe
that was the Supreme Court’s intent in Klehr, nor do I believe the law permits such
a result. I respectfully dissent.
______________________________
-26-