Submitted: April 4, 2017
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, WOLLMAN, LOKEN, RILEY, COLLOTON,
GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En
BENTON, Circuit Judge.
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.
Ferrellgas 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%."
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).
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
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
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).
Rather, the facts alleged "must be enough to raise a
right to relief above the speculative level."
Twombly, 550 U.S. at 555.
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).
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).
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 restart the statute of
limitations. Also at issue is whether Plaintiffs allege
a continuing violation exception sufficient to restart the
statute of limitations.
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).
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 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.").
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,
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 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.
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