On January 8, 2018, the U.S. Supreme Court refused to review the Eight Circuits June 23, 2017 a split Eighth Circuit en banc holding that sales made pursuant to an anticompetitive agreement constitute new acts for purposes of determining the timeliness of a claim.  This holding revived Direct Purchasers’ antitrust claims against distributors of pre-filled propane tanks.

On December 17, 2014 the court appointed Cohen Milstein Sellers & Toll PLLC, Berger & Montague PC, and Susman Godfrey LLP as Interim Co-Lead Counsel to represent Direct Purchasers of filled propane tanks in the multidistrict litigation.

Case Background

On July 15, 2014 Cohen Milstein filed a class action complaint on behalf of Direct Purchasers against the two largest distributors of propane exchange tanks, Ferrellgas LP, which does business as Blue Rhino, and AmeriGas (“Defendants”) for violating the Sherman Act:  American Auto Repair v. Ferrellgas, LP., et al, Case No. 2:14-cv-02344.  

The litigation alleges that beginning in 2008 the Defendants conspired to reduce the amount of propane they would put in their tanks from 17 to 15 pounds, while keeping prices stable, effectively raising the prices charged by 13% per pound. Plaintiffs further allege that Defendants continued to conspire through at least March 2014 and, as a result, Direct Purchasers paid more for propane than they otherwise would have.

Class members include businesses and consumers who purchased filled propane exchange tanks directly from defendants’ retail locations at the illegally inflated prices.

In addition to the multidistrict litigation on behalf of direct purchasers, the Federal Trade Commission filed an administrative complaint in March 2014 challenging the same anticompetitive conduct alleged by Direct Purchasers.  Blue Rhino and AmeriGas subsequently entered a consent decree in that litigation.

In their June 23, 2018 decision, the Eighth Circuit held that the U.S. Supreme Court’s decision in Klehr v. A.O. Smith Corp. provides that each sale made at price set pursuant to an alleged conspiracy constitutes an overt act sufficient to restart the statute of limitations, and therefore Direct Purchasers properly alleged a timely, ongoing antitrust violation. As a result, the Eighth Circuit reversed en banc the prior panel’s ruling, allowing Direct Purchasers’ antitrust claims to move forward.  Defendants subsequently appealed to the U.S. Supreme Court for review.

The appellate action name is: Morgan Larson, et al v. Ferrellgas Partners, et al, Case No. 15-2789, United States Court of Appeals for the Eighth Circuit.

The case name is: In re: Pre-Filled Propane Tank Antitrust Litigation, Case No. 4:14-md-02567, U.S. District Court, District of Missouri, Western Division.