Hartig Drug Co. v. Ferrellgas Partners, L.P.
834 F.3d 943
| 8th Cir. | 2016Background
- Ferrellgas and AmeriGas are the two largest U.S. distributors of pre-filled 20 lb propane exchange tanks; in 2008 they reduced fill from 17 to 15 lbs but kept the same price.
- A 2009 class action (In re Propane I) by indirect purchasers alleged defendants conspired to reduce fill while holding price; class settlements were approved in 2010–2011.
- The FTC filed a complaint in 2014 alleging restrained price competition based on the 2008 fill reduction; direct purchasers (Plaintiffs here) sued in October 2014 under § 1 of the Sherman Act seeking damages.
- Plaintiffs allege the 2008 agreement was conspiratorial and that continued sales/communications thereafter restarted the statute of limitations under a continuing-violation theory.
- The district court dismissed Plaintiffs’ damages claims as time-barred; the Eighth Circuit majority affirmed, concluding Plaintiffs failed to allege new, independent overt acts within the limitations period.
Issues and Key Cases Cited
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs’ § 1 damage claims are timely under a continuing-violation theory | Each sale of the allegedly price-fixed tanks within the limitations period restarts the limitations period (relying on Klehr) | Sales after the 2008 agreement were mere inertial consequences/reaffirmations of the original unlawful act and do not restart the limitations period | Affirmed dismissal: no new and independent overt act alleged within limitations; continued sales and monitoring communications are insufficient |
| Whether alleged post-2008 communications between defendants constitute overt acts restarting limitations | Communications to monitor/comply with the agreement show ongoing conspiracy and thus continuing violation | Communications merely reaffirm and monitor the original agreement, not new conspiratorial acts | Held communications were reaffirmations, not new overt acts; parallel conduct without new allegations is insufficient |
Key Cases Cited
- Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) (discusses continuing-violation concept and overt-act rule in relation to accrual)
- Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971) (antitrust cause of action accrues when defendant injures plaintiff’s business)
- Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir. 2004) (performance of anticompetitive contracts during limitations period does not necessarily restart period)
- In re Wholesale Grocery Prods. Antitrust Litig., 752 F.3d 728 (8th Cir. 2014) (a monopolist’s use of unlawfully acquired market power to charge elevated prices can be an overt act restarting limitations)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (parallel conduct alone does not plead a plausible § 1 conspiracy)
- Midwestern Mach. Co. v. Northwest Airlines, Inc., 392 F.3d 265 (8th Cir. 2004) (distinguishes discrete acts like mergers from continuing conspiracies; overt acts must do more than produce inertial consequences)