January 08, 2018

Distributors of prefilled propane tanks had pressed the high court to review a split en banc Eighth Circuit ruling from June that revived antitrust claims of direct purchasers of the tanks.

In a published 5-4 decision that reversed a panel ruling affirming the dismissal of the suit, the Eighth Circuit found that the Supreme Court’s 1997 decision in Klehr v. A.O. Smith Corp. set a precedent that each new sale to plaintiffs in a price-fixing conspiracy suit constitutes an overt act that restarts the statute of limitations on antitrust violations. The majority opinion also found that the direct purchasers had properly alleged all three necessary elements of a claim for continued violation that is sufficient to restart the statute of limitations.

The four dissenting judges argued that Klehr was a Racketeer Influenced and Corrupt Organizations Act case and the majority took the case out of context in using it to rule on antitrust claims. The direct purchasers also failed to allege an ongoing conspiracy, the dissenting judges said.

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The respondents are represented by Susman Godfrey LLP, and Cohen Milstein Sellers & Toll PLLC, among others.