Midwestern MacHinery Co. v. Northwest Airlines, Inc.

392 F.3d 265, 2004 WL 2792455
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 7, 2004
Docket03-1664
StatusPublished
Cited by9 cases

This text of 392 F.3d 265 (Midwestern MacHinery Co. v. Northwest Airlines, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Midwestern MacHinery Co. v. Northwest Airlines, Inc., 392 F.3d 265, 2004 WL 2792455 (8th Cir. 2004).

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The plaintiffs (referred to collectively as Midwestern) appeal from a summary judgment entered against them in their action against Northwest Airlines under § 7 of the Clayton Act, see 15 U.S.C. § 18. For the reasons stated below, we affirm the judgment of the district court.1

[269]*269I.

Northwest Airlines merged with Republic Airlines in 1986. Before the merger, Northwest was the eighth largest airline in the United States, and Republic was the ninth largest. Both had a significant presence at the Minneapolis-St. Paul Airport (MSP). The merger was sanctioned by the Department of Transportation but was not granted antitrust immunity.

In 1997, eleven years after the merger, Midwestern filed suit claiming that the merger violated § 7 of the Clayton Act. The district court dismissed the complaint, holding that the merger could not be the subject of a § 7 claim because the acquired entity’s stock had ceased to exist. We reversed that dismissal in Midwestern Machinery, Inc. v. Northwest Airlines, Inc., 167 F.3d 439 (8th Cir.1999). On remand, the district court allowed Midwestern to certify a class of plaintiffs, but notification of the class was postponed while the district court considered Northwest’s motion for summary judgment on the ground that the statute of limitations had run. When the district court granted the motion, Midwestern appealed.

Section 7 of the Clayton Act prohibits acquisitions that serve “substantially to lessen competition, or to tend to create a monopoly,” 15 U.S.C. § 18, and contains a four-year statute of limitations for private actions, 15 U.S.C. § 15b. Section 7 exists primarily to arrest, at their incipien-cy, mergers that could produce anti-competitive results. Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1050 (8th Cir.2000), cert. denied, 531 U.S. 979, 121 S.Ct. 428, 148 L.Ed.2d 436 (2000). Generally, a “Section 7 action challenging the initial acquisition of another company’s stocks or assets accrues at the time of the merger or acquisition.” Id. Midwestern maintains, however, that there are three reasons why its suit, though it was filed eleven years, after the merger, nevertheless survives Northwest’s motion for summary judgment on limitations grounds. Midwestern also argues that its action is not barred by laches.

II.

Midwestern asserts first that Northwest’s “continuing violations” of the Clayton Act will allow it to avoid the bar of the statute of limitations. Specifically, it points to Northwest’s “hub premium” for flights through its MSP hub and Northwest’s actions to prevent successful entry into MSP by low-cost carriers as overt acts that restart the statute.

Under the so-called continuing-violation theory, “ ‘each overt act that is part of the violation and that injures the plaintiff ... starts the statutory period running again, regardless of the plaintiffs knowledge of the alleged illegality at much earlier times.’ ” Klehr v. A.O. Smith Corp., 521 U.S. 179, 189, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997) (quoting 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b (rev. ed.1995)). Midwestern, however, cites no' appellate decisions applying this 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.

The typical antitrust continuing violation occurs in a price-fixing conspiracy, actionable under § 1 of the Sherman Act, see 15 U.S.C. § 1, when conspirators continue to, meet to fine-tune their cartel agreement. See Pennsylvania Dental Ass’n v. Medical Serb. Ass’n of Pa., 815 F.2d 270, 278 (3d Cir.1987), cert. denied, 484 U.S. 851, 108 S.Ct. 153, 98 L.Ed.2d 109 (1987). These meetings are overt acts that begin a new statute of limitations because they serve to further the objectives of the conspiracy. Cf. Zenith Radio Corp. v. Ha-[270]*270zeltine Research, 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971).

But “[continuing violations have not been found outside the RICO or Sherman Act conspiracy context ... because acts that ‘simply reflect or implement a prior refusal to deal or acts that are merely unabated inertial consequences (of a single act) do not restart the statute of limitations.’ ” Concord Boat, 207 F.3d at 1052 (quoting DXS, Inc. v. Siemens Med. Sys., Inc., 100 F.3d 462, 467-68 (6th Cir.1996) (citations and internal quotations omitted)). In other words, to apply the continuing violation theory to non-conspiratorial conduct, new overt acts must be more than the unabated inertial consequences of the initial violation.

Looking at how courts have applied the continuing violation theory to claims brought under § 2 of the Sherman Act sheds light on why that theory does not apply to Clayton Act claims. In Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 483-84, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), United, a manufacturer and distributor of shoe machinery, was sued by one of its customers, Hanover, for monopolizing the shoe machinery industry in violation of § 2 of the Sherman Act. United leased but refused to sell its machinery to Hanover, causing Hanover to pay more for use of the machines over time. United’s lease-only policy first adversely affected Hanover in 1912, but suit was not filed until 1955. The Court held that United’s continued adherence to the policy was part of its maintenance of its monopoly. The Court stated:

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.

392 U.S. at 502 n. 15, 88 S.Ct. 2224. The Court thus endorsed the Third Circuit’s reasoning that United’s conduct “went beyond a mere continuation of the refusal to sell; it collected rentals on leases and entered into new leases when old machinery was no longer in working condition and required replacement.” Hanover Shoe, Inc. v. United Shoe Machinery Corp., 377 F.2d 776, 794 (3d Cir.1967),

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