No. 14-891

IN THE

SUPERVALU INC. AND

C&S WHOLESALE GROCERS, INC.,

Petitioners, v.

D&G, INC., DOING BUSINESS AS GARY’S FOODS,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION

W. Joseph Bruckner Elizabeth R. Odette LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Ave. South Suite 2200 Minneapolis, MN 55401 Daniel A. Kotchen Daniel L. Low KOTCHEN & LOW LLP 2300 M Street, NW Suite 800 Washington, D.C. 20037

Richard B. Drubel Counsel of Record Kimberly H. Schultz Matthew J. Henken BOIES, SCHILLER & FLEXNER LLP 26 South Main St. Hanover, NH 03755 (603) 643-9090 rdrubel@bsfllp.com

QUESTIONS PRESENTED

1. Whether the existence of a genuine factual dispute about the real terms of petitioners’ agreement – viz., whether petitioners agreed to a naked, horizontal allocation of territories and customers – precludes a court from conclusively determining on summary judgment whether the agreement is per se unlawful under the antitrust laws or instead is subject to the rule of reason.

2. Whether the Eighth Circuit erred in concluding on the facts of this particular case that a jury could reasonably conclude that petitioners had agreed to a naked division of territories and customers that does not qualify for rule of reason treatment as an “ancillary restraint.”

3. Whether a different accrual rule applies to antitrust conspiracies to allocate territories or customers depending on whether the agreement stood on its own or was associated with an asset-swap agreement.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i  

STATEMENT OF THE CASE ..................................... 1  

I.   Factual History ...................................................... 2  

II.   Procedural History ................................................ 4  

REASONS FOR DENYING THE WRIT ................... 10  

I.   Certiorari Is Not Warranted To Decide Whether The Rule Of Reason Should Apply To This Case. ....................................................... 11  

A.   The Courts Are Not Divided Over When To Apply The Rule Of Reason At Summary Judgment. .................................... 11  

B.   The Eighth Circuit’s Decision Implicates No Circuit Conflict Concerning Ancillary Restraints. ..................................................... 15  

C.   This Case Is An Exceptionally Poor Vehicle For Resolving Any Questions Regarding The Per Se Rule Or The Rule Of Reason. ..................................................... 22  

II.   The Statute Of Limitations Question Does Not Warrant Review Either. ............................... 24  

CONCLUSION ........................................................... 32  

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TABLE OF AUTHORITIES

Cases  Arizona v. Maricopa Cnty. Med. Soc’y,

457 U.S. 332 (1982) .......................................... 12, 13

Atl. Richfield Co. v. USA Petrol. Co., 495 U.S. 328 (1990) ................................................ 22

Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717 (1988) .................................................. 5

California v. Rooney, 483 U.S. 307 (1987) ................................................ 23

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ................................................ 23

Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000) ................................ 29

Eichorn v. AT&T Corp., 248 F.3d 131 (3d Cir. 2001) .................. 17, 20, 21, 24

Food Lion, LLC v. Dean Foods Co. (In re Se. Milk Antitrust Litig.), 739 F.3d 262 (6th Cir. 2014) .................................. 13

In re Cotton Yarn Antitrust Litig., 505 F. 3d 274 (4th Cir. 2007) ................................. 26

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010) .................................... 17

In re Sulfuric Acid Antitrust Litig., 703 F.3d 1004 (7th Cir. 2012) ................................ 13

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) ............................................ 9, 26

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007) ............................ 12, 13, 14

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Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255 (7th Cir. 1981) ................ 17, 20, 21, 24

M’Clung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821) ................................ 23

Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (en banc) .................. 18

Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008) ........................... 13

McDonald v. Johnson & Johnson, 722 F.2d 1370 (8th Cir. 1983) ................................ 18

Midwestern Mach. Co. v. Nw. Airlines, Inc., 392 F.3d 265 (8th Cir. 2004) ............................ 25, 29

Morton’s Market, Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823 (11th Cir. 1999), cert. denied, 529 U.S. 1130 (2000) .............................................. 26

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ................................................ 25

Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679 (1978) ................................................ 12

Niaspan Antitrust Litig., 42 F. Supp. 2d 735, 746-47 (E.D. Pa. 2014) .......... 26

Perceptron, Inc. v. Sensor Adaptive Machs., Inc., 221 F.3d 913 (6th Cir. 2000) ...................... 17, 20, 21

Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210 (D.C. Cir. 1986) .......................... 5

State Oil Co. v. Khan, 522 U.S. 3 (1997) .................................................... 12

Syntex Labs., Inc. v. Norwich Pharmacal Co., 315 F. Supp. 45 (S.D.N.Y. 1970) ................ 17, 20, 21

Syntex Labs., Inc. v. Norwich Pharmacal Co., 437 F.2d 566 (2d Cir. 1971) .................................... 17

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United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898) ........................................ 16

United States v. Empire Gas Corp., 537 F.2d 296 (8th Cir. 1976) .................................. 18

United States v. Misle Bus & Equip. Co., 967 F.2d 1227 (8th Cir. 1992) ................................ 12

Z Techs. Corp. v. Lubrizol Corp., 753 F.3d 594 (6th Cir. 2014) ...................... 25, 28, 29

Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971) .................................... 25, 26, 27

Statutes  15 U.S.C. § 1 ....................................................... passim

15 U.S.C. § 2 ................................................... 24, 27, 28

15 U.S.C. § 18 ............................................................. 24

Rules  Fed. R. Civ. P. 56(a) ..................................................... 7

Other Authorities  AREEDA & HOVENKAMP, ANTITRUST LAW

(2014) .............................................................. passim

R. Bork, Ancillary Restraints and the Sherman Act, 15 ANTITRUST L.J. 211 (1959) ........................... 5

Fed. Trade Comm’n & Dep’t of Justice, Antitrust Guidelines for Collaborations Among Competitors (2000) ................................................. 19

Maurice E. Stucke, Evaluating the Risks of Market Swaps, ANTITRUST, Fall 2003 ............. 16, 20

STATEMENT OF THE CASE

The petition in this case is premised on petitioners’ contention that they entered into a horizontal agreement not to compete ancillary to a garden variety business acquisition. But the Eighth Circuit recognized that a jury could instead find the opposite: that what petitioners actually agreed to was a naked, horizontal division of customers and territories between competitors, constituting a classic per se violation of the antitrust laws. Although petitioners nominally swapped assets in two distinct geographic territories through a cashless “asset exchange,” each quickly shut down the facilities it had acquired, integrating into its business only the customers it had swapped with its competitor. Petitioners also secretly agreed not to compete for a period of five years. A factual dispute exists as to the actual terms of the agreement. While petitioners agreed in writing not to compete for the customers they swapped, sufficient evidence exists from which a reasonable jury could find that the petitioners’ agreement not to compete was broader than the written terms, encompassing all customers in the swapped territories. Contrary to petitioners’ assertion, no court has held that a rule of reason analysis would apply as a matter of law to such an agreement, particularly at summary judgment when the facts regarding the terms of the agreement are in dispute. At the same time, the courts of appeals uniformly hold that such conspiracies give rise to continuing violations during the duration of the illegal non-compete agreement. The petition should be denied.

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I. Factual History

Petitioners SuperValu and C&S are the two largest grocery wholesalers in the United States. Pet. App. 2a. Respondent D&G is “a small town, family-owned grocery store” in Mount Vernon, Iowa, that depends on wholesalers such as petitioners to obtain the thousands of items it sells. Id.

“Prior to June 2002, SuperValu was C&S’s ‘largest’ and ‘closest’ competitor in New England, where C&S was the primary wholesaler.” Pet. App. 3a. But during this period, the reverse was not true: C&S had made no attempt to compete in the Midwest where SuperValu was the dominant wholesaler. Id.

In 2002 and 2003, that changed. First, C&S “acquired a distribution center in Ohio dedicated to servicing a regional grocery chain” with the intent of expansion into the Midwest. Pet. App. 3a. Less than a year later, C&S announced its intention to acquire SuperValu’s principal Midwest competitor, Fleming Companies, which had fallen into bankruptcy. Id. When this news became public, SuperValu’s stock price “tumbl[ed] . . . as investors worried that a stronger rival was stepping into the wholesale grocery picture.” Id. (alterations in original) (internal quotation marks and citation omitted).

SuperValu and C&S quickly reached a deal that would keep C&S out of the Midwest market in exchange for SuperValu withdrawing from New England. In an “asset exchange” agreement, C&S would obtain SuperValu’s New England wholesale operations. Id. 3a-4a. In return, SuperValu would obtain from C&S the right to acquire Fleming Company’s Midwestern wholesale operations. Id. 4a. The agreement involved no exchange of cash. See id.

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Nor did it result in any integration of operations. Instead, petitioners agreed to fire all the newly acquired employees and, “[s]hortly after completing the transaction, both wholesalers closed all the distribution centers they had acquired” under the deal. Id. 5a; C.A. App. 323, 330, 1379. For SuperValu and its customers, the practical consequence was no different than if Fleming (or its new owner) had simply agreed to stop competing with SuperValu in the Midwest.

In fact, that is exactly what petitioners agreed to. In an agreement kept secret from the public, petitioners agreed with each other that after the asset exchange, they would not compete in each other’s home territories for five years. Pet. App. 4a. As the Eighth Circuit recognized, the precise terms of the non-compete agreement are the subject of a genuine factual dispute. Id. 4a-5a, 10a-12a. The written agreement precluded each wholesaler from selling to the customers exchanged in the asset swap for two years, and from soliciting such business for five. Id. 4a. “But if D&G’s evidence is believed,” the actual agreement was that C&S would not compete with SuperValu in the Midwest, and SuperValu would not compete with C&S in New England, at all for any customers. Id. 4a-5a. The court noted, for example, that during the negotiations, C&S made clear that it was only interested in the deal if it meant eliminating SuperValu as an existing competitor in New England. See id. 4a (quoting correspondence between petitioners in which C&S told SuperValu that “[w]e are not interested in a transaction that leaves SuperValu in New England” (court of appeals’ emphasis omitted)). Indeed, rather than monetary consideration, the petitioners made

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clear that the “basis” of their arrangement was an agreement to eliminate competition. Id. 4a-5a, 12a. As the Eighth Circuit noted, “[t]ellingly, although the written non-compete agreement permitted the wholesalers to compete in each other’s regions for new and existing customers, neither one actually did so.” Id. 11a-12a. Accordingly, the court of appeals held, “a reasonable jury could conclude that the wholesalers’ real agreement involved dividing territory and customers along geographic lines.” Id. 12a.

The results were predictable. “SuperValu’s market share in the Midwest increased from 40% to 65%, and the market concentration of the Midwestern wholesale grocery market almost doubled.” Pet. App. 5a. The increase in market concentration was ten times the amount deemed likely to create or enhance market power by federal antitrust enforcement agencies. Id.

In Iowa, D&G subsequently experienced a dramatic increase (of thirty basis points) in the fees SuperValu added to the base cost of its products. Pet. App. 6a. At SuperValu’s Illinois center, from which D&G obtained its groceries, profits increased “seventy basis points following the agreement with C&S during a period in which profits fell at SuperValu centers that competed with C&S” outside the Midwest and New England. Id.

II. Procedural History

1. District Court. D&G filed this putative class action against petitioners, alleging a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The district court denied petitioners’ motion to dismiss on statute of limitations grounds. Pet. App. 66a.

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D&G then moved for partial summary judgment, arguing that the petitioners’ agreement constituted a naked, horizontal agreement to divide territories and customers that was a per se violation of the Sherman Act. Pet. App. 6a-7a. Petitioners did not dispute that such horizontal agreements are ordinarily per se unlawful. Instead, they argued that their agreement was subject to an exception that applies to certain restraints on trade that are “ancillary” to a legitimate business transaction. Id. 74a-76a. Agreements falling within that exception are subject to the rule of reason and, therefore, are not necessarily illegal in all circumstances. See, e.g., Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 729 (1988); Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 224 (D.C. Cir. 1986); R. Bork, Ancillary Restraints and the Sherman Act, 15 ANTITRUST L.J. 211, 212 (1959).

The district court denied D&G’s motion because on “the current record, whether . . . the non-compete agreements were ancillary to the [asset exchange]” within the meaning of the doctrine “cannot be resolved on summary judgment.” Pet. App. 76a-77a; see also id. 7a, 78a.

Both sides later filed further motions for partial summary judgment. D&G renewed its claim that the evidence demonstrated a per se violation of the Sherman Act. Id. 7a. The district court denied summary judgment for D&G, concluding that the per se prohibition against horizontal market division did not apply because the terms of the written non-compete agreement did not prohibit petitioners from competing for new customers in each other’s territories. Pet. App. 39a-40a. The district court

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further concluded that although D&G had presented evidence that petitioners had entered into a broader agreement to prohibit any competition at all for any customers in the two regions, a jury was not required to accept D&G’s view of the facts. Id. 41a-42a.

Petitioners, for their part, filed what they described as a “targeted summary judgment” motion that raised “a single dispositive issue: there is no evidence that [D&G] suffered injury from [petitioners’] alleged antitrust violation.” Pet. App. 7a-8a (first alteration in original) (internal quotation omitted). Thus limited, it made no difference to petitioners’ summary judgment motion whether the court applied a per se rule or the rule of reason, given that the lack of an antitrust injury is fatal under either rule. See C.A. App. 449 (“The injury-in-fact and antitrust injury requirements apply regardless of whether the alleged violation is subject to per se or rule-of-reason analysis.”). Nonetheless, the district court began its analysis by concluding that because it had rejected D&G’s request for summary judgment under a per se rule, it was required to analyze petitioners’ agreement under the rule of reason in deciding petitioners’ motion for summary judgment. Pet. App. 42a; but see id. 13a (court of appeals noting that this reasoning is “confused”). The district court then proceeded to apply a rule of reason analysis to the case, even though neither party had asked it to in the pending motions, and even though D&G had been given no opportunity to brief the question. See id. 42a-48a. The court concluded that petitioners were entitled to summary judgment because D&G failed to define the relevant market, id. 43a-46a, and had “not submitted sufficient . . . proof on detrimental effects” of the conspiracy, id. 46a-48a.

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The district court also denied as moot D&G’s request for leave to file a motion to certify a revised, more narrow class of retailers served by the same SuperValu distribution center as D&G. Pet. App. 50a.1

2. Court of Appeals. On appeal, the Eighth Circuit affirmed in part and reversed in part, holding that “neither side is entitled to summary judgment.” Pet. App. 14a. The court stressed that its reasons for that conclusion were simple, fact-bound, and case-specific. See id. 10a (declining “the parties’ invitations to ensnare this appeal in legal and factual minutiae which are not relevant to the outcome,” finding instead that the “critical issue in this appeal is whether the record evinces a ‘genuine dispute as to any material fact’” (quoting Fed. R. Civ. P. 56(a) )).

a. D&G’s Summary Judgment Motion. The Eighth Circuit first affirmed the district court’s denial of D&G’s motion for summary judgment, holding that genuine and material factual disputes about the actual terms of petitioners’ agreement prevented summary judgment as to whether a per se violation occurred. Pet. App. 13a.

1 The court had earlier denied certification of a larger class

consisting of all retail grocery stores in the Midwest that purchased wholesale grocery products from SuperValu during the class period. Pet. App. 7a. The court reasoned that because SuperValu’s standardized pricing formula varied somewhat depending on which distribution center the class member used, fact issues regarding injury and damages would predominate over common issues in a class certified to cover the entire Midwest (which is served by a number of different distribution centers). Id.

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The Eighth Circuit noted that the district court looked “solely at the written terms of the wholesalers’ non-compete agreement” that, by its plain terms, “is not a pure, horizontal division of customers or geographic territories.” Pet. App. 10a. But the “district court erred by assuming that because the record did not establish an undisputed per se violation, then the rule of reason necessarily applied.” Id. That conclusion did not follow, the Eighth Circuit explained, because a jury could find that the actual agreement extended beyond the written terms. D&G had presented sufficient evidence to allow a jury to find “that what the wholesalers actually agreed to was a naked division of territory and customers.” Id. 11a. For example, the court pointed to petitioners’ e-mails, which strongly suggested that the “basis of the deal” was the elimination of competition. Id. 11a-12a (internal quotation marks omitted). Further, neither SuperValu nor C&S competed in each other’s territory during the pendency of the non-compete agreement. Id.

Thus, a “reasonable jury could conclude the wholesalers’ real agreement involved dividing territory and customers along geographic lines.” Pet. App. 12a. And if the jury “were to make this factual finding, then the wholesalers committed a per se antitrust violation.” Id. However, because D&G would be entitled to the benefit of the per se rule only if the jury resolved the factual disputes in its favor, the Eighth Circuit affirmed the district court’s denial of summary judgment in D&G’s favor. Id.

b. Petitioners’ Summary Judgment Motion. The Eighth Circuit then reversed the district court’s entry of summary judgment in petitioners’ favor on

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narrow grounds that petitioners do not challenge in this Court. First, the court held that the district court erred in entering summary judgment on the basis of D&G’s failure to define the relevant market because “the wholesalers’ ‘targeted’ motion never argued the market was undefined.” Pet. App. 13a. And in any event, “D&G submitted enough evidence to create a genuine factual dispute about (1) the relevant market and (2) the injury caused by the wholesalers’ alleged antitrust violation.” Id. 14a.

c. Statute of Limitations. Finally, the Eighth Circuit affirmed the district court’s statute of limitations ruling. The court explained that the “timeliness question in this case is controlled by Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997).” Pet. App. 16a. That decision explained that “in the case of a continuing violation, 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.” Id. (emphasis added by Eighth Circuit) (quoting Klehr, 521 U.S. at 189) (internal quotation marks omitted). Recognizing that petitioners’ non-compete agreement lasted five years, but the statute of limitations was only four years, the Eighth Circuit held that petitioners were “entitled to recover for any discrete overt act occurring within the limitations period.” Pet. App. 16a-17a. Thus, the “four-year limit does not preclude D&G from recovering for inflated prices charged within the four years before” its complaint. Id. 17a.2

2 The court of appeals also affirmed the district court’s

denial of class certification for all SuperValu customers in the

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Accordingly, the Eighth Circuit remanded the case for further proceedings. Pet. App. 17a.

3. Petition for Rehearing En Banc. The full court of appeals subsequently denied a petition for rehearing en banc without recorded dissent. Pet. App. 19a.

REASONS FOR DENYING THE WRIT

The petition seeks review of a series of questions that were not addressed below and that are premised on a mischaracterization of what the Eighth Circuit held, in a transparent attempt to concoct not one, but three, circuit conflicts that do not in fact exist. Nor would addressing the questions presented affect the outcome. Although petitioners spend the bulk of their brief insisting that the rule of reason should apply to this case, they do not dispute that they did not raise the rule of reason as a ground for summary judgment below, and they do not ask this Court to review the court of appeals’ rejection of the one argument (lack of antitrust injury) they did raise. At the same time, ruling in petitioners’ favor on the statute of limitations question they raise would not end the case. It would simply require the Eighth Circuit to resolve D&G’s alternative tolling argument, which the court suggested it would likely accept. The petition should be denied.

Midwest region. Pet. App. 15a. But it vacated the denial of D&G’s motion for leave to move to certify a narrower class, given that the district court had denied that motion as moot in light of its (now reversed) grant of summary judgment against D&G on the merits. Id.

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I. Certiorari Is Not Warranted To Decide Whether The Rule Of Reason Should Apply To This Case.

The first two questions presented address whether the rule of reason should apply to this case. Neither question warrants this Court’s attention. The decision below is correct and consistent with the law of other circuits. Moreover, even if the questions warranted review by this Court, this case presents an uncommonly poor vehicle for resolving them. The very premise of the ruling below is that genuine and material factual disputes in the case do not permit a determination of whether the per se rule or the rule of reason applies. And resolving those questions in petitioners’ favor would not affect the judgment.

A. The Courts Are Not Divided Over When To Apply The Rule Of Reason At Summary Judgment.

Petitioners first ask this Court to decide what a court should do at summary judgment when there are “fact issues about the competitive nature and effects” of an antitrust defendant’s conduct. Pet. i (emphasis added). They assert that the Eighth Circuit held that courts are prohibited from applying the rule of reason at summary judgment when “fact issues exist about the competitive nature and effects of a restraint.” Id. 14. That holding, they say, conflicts with established law in this Court and other circuits that unless a practice is plainly anticompetitive, per se treatment is inappropriate and the rule of reason must be applied. See id. 9-17. This argument is premised on a mischaracterization of the decision below and a conflation of two distinct legal questions.

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This Court has held that per se analysis is restricted to practices “so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality.” Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 692 (1978). A per se rule, therefore “is appropriate only after courts have had considerable experience with the type of restraint at issue.” Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007). But once the courts have found a restraint to fall within the per se rule, such restraints are deemed unlawful without further consideration of the practices’ alleged procompetitive effects in any given case. See id.; Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 349-50 (1982); United States v. Misle Bus & Equip. Co., 967 F.2d 1227, 1235 & n.4 (8th Cir. 1992). Accordingly, for example, courts have had sufficient experience to declare per se unlawful “horizontal agreements among competitors . . . to divide markets.” Leegin, 551 U.S. at 886. If a plaintiff proves that the defendant engaged in such a naked market division, a violation is proven without any further inquiry into the “reasonableness of [the] individual restraint in light of the real market forces at work” in any particular case. Id.

On the other hand, when confronting a new practice that does not clearly fit within any existing per se rule, this Court has “expressed reluctance to adopt per se rules . . . where the economic impact of certain practices is not immediately obvious.” State Oil Co. v. Khan, 522 U.S. 3, 10 (1997) (internal quotation marks and citations omitted). In this context, “uncertainty concerning whether [the relevant] restraint satisfied the demanding standards necessary to apply a per se rule” may be reason to

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apply the rule of reason instead. Leegin, 551 U.S. at 887; see also Maricopa, 457 U.S. at 350 n.19 (noting difference between application of settled per se rule and analysis of new practice).

Petitioners attempt to concoct a circuit conflict by pointing to cases falling into this second category – i.e., cases confronting a new practice that did not fall cleanly within an existing per se rule, in which the court held that disputes over the practice’s “competitive nature and effecmorts” meant that the practice was not so clearly anticompetitive that it should be declared per se unlawful. Pet. 12-14; Food Lion, LLC v. Dean Foods Co. (In re Se. Milk Antitrust Litig.), 739 F.3d 262, 273 (6th Cir. 2014) (“[T]he restraint at issue appears to involve a vertical relationship, thus requiring the Court to apply the rule of reason.”); In re Sulfuric Acid Antitrust Litig., 703 F.3d 1004, 1009-12 (7th Cir. 2012) (alleged unlawful agreement between distributor and supplier for distributor to stop producing sulfuric acid and instead distribute acid produced by supplier, potentially leading to price decrease); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 340 n.10 (2d Cir. 2008) (Sotomayor, J., concurring) (joint venture between major league baseball teams).

The Eighth Circuit’s decision in this case, however, had nothing to do with that line of cases. Instead, the court was addressing the logically antecedent question of whether the conspiracy fell squarely within the boundaries of a well-recognized per se category, such that no inquiry into its competitive effects was required (or, indeed, permitted). The court recognized that a “pure, horizontal division of customers or geographic

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territories” has long been a per se offense. Pet. App. 10a. It then asked whether the agreement in this case fell within that rule. It concluded that the question could not be resolved at summary judgment because there was a genuine dispute over the actual terms of the petitioners’ agreement. Id. 11a (“The crucial factual question here: What are the terms of the allegedly anticompetitive agreement?” (emphasis added)). That is, the proper rule to apply here could not be resolved at summary judgment because a reasonable jury could find “that what the wholesalers actually agreed to was a naked division of territory and customers.” Id. If the jury “were to make this factual finding, then the wholesalers committed a per se antitrust violation,” id. 12a, obviating the need to inquire about the competitive effects of the practice. See, e.g., Leegin, 551 U.S. at 886. On the other hand, a jury might decide that the actual agreement was narrower, and the per se rule would not apply. Pet. App. 10a, 14a & n.7.3

The petitioners’ first question presented thus does not arise in this case and is, instead, premised on an inaccurate description of what the Eighth Circuit actually decided. The court did not “refus[e] to apply the rule of reason at summary judgment [because] fact issues exist[ed] about the competitive nature and effects of” the restraint. Pet. 12 (emphasis added). Instead, it refused to apply the rule of reason because “this case presents a factual dispute about

3 To be clear, D&G argued below and continues to maintain

that petitioners’ agreement not to compete would be per se unlawful even if limited to the terms set out in the written agreement. See D&G C.A. Br. 43-47.

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the real terms of the wholesalers’ agreement.” Pet. App. 13a (emphasis added). Whether the per se rule applies turns on what the defendants agreed to, not the agreement’s competitive effects. Indeed, the relevant passages of the court’s opinion do not even mention competitive effects (much less “recognize” them as petitioners claim, see id. 3a).

Nor are the circuits divided over the question the Eighth Circuit actually decided. Precisely because there are few “aspiring monopolists foolish enough to reduce” a per se unlawful agreement “to writing,” Pet. App. 11a, there will be cases in which application of the per se rule will depend on whether the finder of fact resolves the factual disputes by finding, say, a price-fixing conspiracy or, instead, concludes that the agreement was of a different sort, which would not be subject to the per se rule. Petitioners do not and cannot claim that this Court or any circuit has held that when the terms of a conspiratorial agreement are subject to dispute – and the agreement would be subject to a per se rule under the plaintiffs’ version of the facts – the rule of reason nevertheless automatically applies. Nor have petitioners even attempted to explain why such a rule would make any sense.

B. The Eighth Circuit’s Decision Implicates No Circuit Conflict Concerning Ancillary Restraints.

Petitioners’ second question presented asks whether agreements not to compete within a geographic area can be per se unlawful when part of a “business acquisition.” Pet. i. Petitioners say that the answer is a categorical “no,” and that the Eighth Circuit created a circuit conflict by holding that the

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answer is always “yes.” In fact, there is no circuit conflict because all courts agree that whether an anticompetitive agreement associated with some other business transaction is analyzed under the per se rule or the rule of reason depends on the facts of the case and the actual terms of the agreement.

Petitioners argue that it is firmly established that “the rule of reason provides the ‘standard for testing the enforceability of covenants in restraint of trade which are ancillary to a legitimate transaction.’” Pet. 17 (citation omitted). But not every restraint of trade accompanying some other lawful agreement qualifies as “ancillary,” as even the authorities petitioners rely upon acknowledge. See, e.g., AREEDA & HOVENKAMP, ANTITRUST LAW ¶ 1908b (2014) (“[C]learly a restraint does not qualify as ‘ancillary’ merely because it accompanies some other agreement that is itself lawful.”) (treatise cited, e.g., at Pet. 21). For example, as then-Judge Taft wrote in the seminal opinion on ancillary restraints, the “very statement of the rule implies that the contract must be one in which there is a main purpose, to which the covenant in restraint of trade is merely ancillary.” United States v. Addyston Pipe & Steel Co., 85 F. 271, 282 (6th Cir. 1898) (cited at Pet. 17). If the restraint “ceases to be ancillary, and becomes the main purpose of the contract,” then the “transfer of property and good will . . . is merely ancillary and subordinate to that purpose” and does not shield the restraint from the per se rule. AREEDA &

HOVENKAMP, supra, ¶ 1908f (quoting Addyston Pipe, 85 F. at 291); Maurice E. Stucke, Evaluating the Risks of Market Swaps, ANTITRUST, Fall 2003, at 67 (“Where the primary purpose of the transaction is to eliminate competition by allocating territories, then

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the asset swap likely will be treated as per se illegal.”).

None of the decisions petitioners cite are to the contrary. In the cases cited from the Sixth and Seventh Circuits, the courts had no occasion to decide what rules applied because the parties agreed that the rule of reason applied in those cases. See Perceptron, Inc. v. Sensor Adaptive Machs., Inc., 221 F.3d 913, 919 (6th Cir. 2000); Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 265 (7th Cir. 1981). And while there is some broad language in the Third Circuit’s decision in Eichorn v. AT&T Corp., 248 F.3d 131 (3d Cir. 2001), that decision concerned a restraint ancillary to a “legitimate transfer of ownership” where “the primary purpose of the agreement was not anti-competitive.” Id. at 146 (holding that agreement not to hire employees of sold subsidiary was reasonable restraint ancillary to legitimate sale of a business). Moreover, the Third Circuit has subsequently clarified that “a restraint is not automatically deemed ancillary simply because it ‘facilitates’ a procompetitive arrangement.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 346 (3d Cir. 2010).4

4 Petitioners also cite Syntex Labs., Inc. v. Norwich

Pharmacal Co., 437 F.2d 566 (2d Cir. 1971), a trademark infringement case. See Pet. 18. But nothing in that decision addresses any antitrust question. While it does reject certain unspecified objections “for the reasons stated in” the district court’s opinion – which in turn has a brief passage addressing an antitrust objection to enforcement of a contract assigning the trademark, see 315 F. Supp. 45, 56 (S.D.N.Y. 1970) – there is no reason to think that the Second Circuit would view that district

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At the same time, the Eighth Circuit plainly did not hold that “every noncompetition agreement, even those entwined with a business acquisition” is per se illegal. Pet. 20. To the contrary, the court simply held that that the specific agreement not to compete in this particular case might be per se illegal, depending on how a jury resolves the factual dispute regarding its actual terms. Pet. App. 10a-13a.

Petitioners obviously think that case-specific conclusion is wrong, and they complain that the Eighth Circuit did not directly address their ancillary restraint argument. Pet. 19-20. But that omission hardly justifies the inference that the court was sub silentio holding the ancillary restraint doctrine universally inapplicable to any business acquisition case. In fact, the panel in this case could not have held the ancillary restraint doctrine completely inapplicable to business acquisition cases even if it wanted to. Earlier Eighth Circuit decisions have applied the ancillary restraint doctrine in business acquisition cases. See, e.g., McDonald v. Johnson & Johnson, 722 F.2d 1370, 1378 (8th Cir. 1983); United States v. Empire Gas Corp., 537 F.2d 296, 307-08 (8th Cir. 1976). And it “is a cardinal rule” in the Eighth Circuit “that one panel is bound by the decision of a prior panel.” Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (internal quotation marks and citation omitted). Even if the panel here attempted to defy that rule, it could not succeed

court decision as establishing the law of the circuit on this question.

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because any future panel would be bound to follow the earlier of the conflicting decisions. Id.

Instead, it is apparent that the court of appeals agreed with the district court that application of the ancillary restraint doctrine “cannot be resolved on summary judgment.” Pet. App. 76a-7a; see also D&G C.A. Opening Br. 8-14, 47-53 (explaining why ancillary restraint doctrine did not apply on disputed facts); D&G C.A. Reply Br. 19-24 (same). After all, D&G presented substantial evidence that “the basis” of petitioners’ “asset exchange” was an agreement to eliminate competition, not to achieve any procompetitive integration of operations. Pet. App. 4a-5a, 12a. Petitioners allocated two distinct geographic territories (the Midwest to SuperValu and New England to C&S) and agreed not to compete not only for the customers exchanged in the petitioners’ “asset exchange,” but for any customers (including future customers) in the exchanged territories. Id. 4a-5a, 11a-12a. In addition, both petitioners promptly closed the distribution centers they exchanged in their respective home territories and agreed to fire the exchanged employees. Id. 5a; C.A. App. 323, 330-31, 1379. The only material assets really “exchanged” were the customers.

Accordingly, while the ancillary restraint doctrine may apply to some business arrangements that contain “a significant promise of integration of cooperation yielding an increase in output,” AREEDA

& HOVENKAMP, supra, ¶ 1908b, a jury could find that the agreement not to compete in this case offered no such prospect. See Fed. Trade Comm’n & Dep’t of Justice, Antitrust Guidelines for Collaborations Among Competitors 4, 8 (2000) (agreements not to

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compete may be evaluated under the rule of reason only if “they are reasonably related to, and reasonably necessary to achieve procompetitive benefits from, an efficiency-enhancing integration of economic activity.”); Stucke, supra, at 68 (“Absent the transfer and meaningful integration of real assets, the asset swap looks more like an agreement between competitors to withdraw from each other’s market.”); AREEDA & HOVENKAMP, , supra, ¶ 1908b (to decide whether an anticompetitive agreement is truly ancillary, courts must ask “whether any aspect of the defendants’ association contains a significant promise of integration or cooperation yielding an increase in output”).

Petitioners likewise cannot argue that the non-compete agreement was necessary to prevent devaluation of a purchased asset, like a patent. See Perceptron, 221 F.3d at 915-16; Syntex Labs., 315 F. Supp. at 47; AREEDA & HOVENKAMP, supra, ¶ 1908c. The plan all along was to discard whatever value the acquired facilities and workforce may have had, keeping only the customers. See supra pp. 2-3.

So petitioners are forced to argue that the non-compete agreement was justified as a way of protecting the “goodwill” they acquired in the swap and that this “goodwill” somehow extends to: (a) future customers not exchanged by petitioners within the two territories; and (b) former Fleming customers in the Midwest that C&S had never even served. Pet. 2. But the “goodwill” rationale that may render a non-compete agreement ancillary typically applies when a business is purchased and continues to operate or is integrated into the purchaser’s operations. See Eichorn, 248 F.3d at 136; Lektro-

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Vend, 660 F.2d at 258-59; Syntex Labs., 315 F. Supp. at 47; AREEDA & HOVENKAMP, supra, ¶ 1908c. Having discarded the distribution facilities and employees they acquired, petitioners can only argue that their non-compete agreement was necessary to protect “goodwill” acquired through the exchange of customers. But if that were a valid argument, the per se rule against naked division of customers would be a dead letter: all competitors would have to do to avoid it would be to swap customers first, then claim their agreement not to compete is ancillary to the customer swap. None of the cases petitioners cite come close to endorsing such a rule.

That other circuits have found other non-compete agreements valid ancillary restraints simply reflects the very substantial factual differences in the cases, not any disagreement over the applicable legal principles. See Eichorn, 248 F.3d at 136 (seller of high tech business agreed not to hire away certain high skill employees from purchaser); Perceptron, 221 F.3d at 915-16 (seller of patents and related intangible assets agreed not to compete for certain business using the technology); Lektro-Vend, 660 F.2d at 258-59 (inventor sold his business, became officer and director of the purchaser, and agreed not to compete with new employer); Syntex Labs., 315 F. Supp. at 47 (non-compete clause included in contract to purchase pharmaceutical and its registered trademark). None of the decisions petitioners cite involved a case remotely like this one.

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C. This Case Is An Exceptionally Poor Vehicle For Resolving Any Questions Regarding The Per Se Rule Or The Rule Of Reason.

This case is hardly a “clean vehicle,” Pet. 22, for deciding when the rule of reason should apply to non-compete agreements. In fact, it is an exceptionally poor one.

First, petitioners do not actually challenge the judgment in this case. The Eighth Circuit reversed the grant of summary judgment in petitioners’ favor for reasons having nothing to do with the rule of reason or the per se rule. Instead, the court observed that petitioners had moved for summary judgment solely on the ground that D&G had failed to substantiate an antitrust injury. It was therefore improper for the district court to decide whether D&G had proven a violation under the rule of reason. Pet. App. 7a-8a, 13a-14a.5 Reviewing the only argument petitioners actually preserved, the Eighth Circuit concluded that D&G presented sufficient evidence of injury to go to a jury. Id. 14a. Petitioners do not seek review of that fact-bound conclusion in this Court.

Instead, petitioners challenge some of the reasoning in the portion of the court’s opinion ruling in petitioners’ favor by affirming the denial of

5 Antitrust injury is an element of every civil antitrust

case, and its absence defeats the plaintiff’s claim whether the case is analyzed under the per se rule or the rule of reason. See Atl. Richfield Co. v. USA Petrol. Co., 495 U.S. 328, 341-42 (1990).

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summary judgment to D&G. See Pet. 14-17, 19-20 (citing Pet. App. 10a-13a). But this Court “reviews judgments, not statements in opinions.” California v. Rooney, 483 U.S. 307, 311 (1987) (per curiam) (internal quotation marks and citation omitted); see also Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 & n.8 (1984) (collecting cases). “The question before an appellate Court is, was the judgment correct, not the ground on which the judgment professes to proceed.” M’Clung v. Silliman, 19 U.S. (6 Wheat.) 598, 603 (1821). And here no one disputes that the judgment is correct.

Second, the decision is interlocutory. The Eighth Circuit remanded for further proceedings that will determine what rule applies in this case. Depending on what a jury finds, the district court may yet give petitioners the rule of reason analysis they are requesting in this Court. Pet. App. 14a & n.7. Or the case may be resolved on entirely unrelated grounds (if, for example, the jury were to find no antitrust injury). Id. 14a.

Third, even if petitioners ultimately lose the case under a per se rule, they will have an opportunity to appeal from that final judgment and seek this Court’s review if necessary. Waiting for final judgment can only provide greater clarity about the Eighth Circuit’s view of the ancillary restraint doctrine applied to the as-yet-to-be-determined facts in this case, as well as ensure that any decision by this Court would actually affect the outcome of the litigation.

Finally, the facts of this case make it a poor vehicle for providing useful guidance on the scope of the ancillary restraint doctrine. As petitioners

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emphasize, the doctrine is ordinarily applied to a “business acquisition” in the sense of someone purchasing a company. See Pet. 17-18 (citing example of the “sale of a bakery”); Eichorn, 248 F.3d at 136 (sale of affiliated business); Lektro-Vend, 660 F.2d at 258-59 (sale of vending machine business). But as discussed, this is hardly a typical business acquisition case. Petitioners offer no evidence that the factual scenario in this case is a substantially recurring one. See Pet. 21-22 (arguing only that “[g]eographic noncompetition agreements are a common and uncontroversial feature of business acquisitions”).

II. The Statute Of Limitations Question Does Not Warrant Review Either.

In yet a third question presented, petitioners ask the Court to decide whether “in a challenge to a business acquisition, the antitrust statute of limitations begins anew each time the defendant uses its increased market power to sell goods at an inflated price.” Pet. i (emphasis added). Again, petitioners’ plea for review is premised on an inaccurate representation of what the Eighth Circuit held below and what this case is about.

1. The challenge in this case is not “to a business acquisition,” as might occur in a Section 7 Clayton Act case or a Sherman Act Section 2 monopolization case challenging a merger. D&G instead has alleged a horizontal conspiracy to allocate markets and customers in violation of Section 1, an agreement that by its terms governed the conspirators’ conduct over a five-year period and that (unlike a merger) was concealed from public disclosure. See Pet. App. 2a, 4a.

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The difference is important because the “critical questions” in a statute of limitations case are “[w]hat constitutes [the] ‘unlawful . . . practice’” and “when has that practice ‘occurred.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Thus, ordinarily under federal antitrust law, “a cause of action accrues and the statute begins to run when a defendant commits an [unlawful] act that injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971). Where a merger or business acquisition in itself violates the law, injury occurs at the time of the merger and thus the statute of limitations generally runs from the date of that unlawful act and is not renewed simply because the effects of the past act may have continuing consequences. See Z Techs. Corp. v. Lubrizol Corp., 753 F.3d 594, 598-99 (6th Cir. 2014); Midwestern Mach. Co. v. Nw. Airlines, Inc., 392 F.3d 265, 269-71 (8th Cir. 2004) (“Unlike a conspiracy . . . , a merger is a discrete act, not an ongoing scheme.”).

But in the “context of a continuing conspiracy to violate the antitrust laws,” like the horizontal Section 1 antitrust conspiracy alleged here, this Court has recognized 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 . . . , as to those damages, the statute of limitations runs from the commission of the act.” Zenith, 401 U.S. at 338. Thus, in the case of a continuing antitrust 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

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alleged illegality at much earlier times.’” Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997) (emphasis added) (citation omitted).

Following Zenith and Klehr, as far as D&G can determine, every lower court that has considered the issue has held that each overcharge resulting from a horizontal conspiracy restarts the statute of limitations as to damages caused by that overcharge, regardless of whether the continuing Sherman Act Section 1 violation is a price-fixing agreement or a customer/market allocation agreement. See, e.g., In re Cotton Yarn Antitrust Litig., 505 F. 3d 274, 291 (4th Cir. 2007) (price-fixing case in which the Fourth Circuit determined that plaintiffs’ price-fixing claims would be timely so long as plaintiffs had made a purchase from defendants at an unlawfully inflated price within the applicable limitations period before the complaint was filed, because “‘each sale to the plaintiff[s] starts the statutory period running again.’” (quoting Klehr, 521 U.S. at 189)); Morton’s Market, Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 828 (11th Cir. 1999), cert. denied, 529 U.S. 1130 (2000) (price-fixing and market division case in which the Eleventh Circuit determined that “even if there were no price-fixing conversations after 1987 [more than 4 years prior to the filing of the complaint],” if plaintiffs purchased “at a fixed price after that date, the purchase would constitute an overt act that injured it”); Niaspan Antitrust Litig., 42 F. Supp. 3d 735, 746-47 (E.D. Pa. 2014) (noting that “[e]very court to have considered this issue in the pay-for-delay context [in which brand-name drug manufacturers agree to pay potential generic competitors to delay market entry of their generic product usually through a “settlement agreement” in

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connection with underlying patent litigation] has held that a new cause of action accrues to purchasers upon each overpriced sale of the drug”) (collecting cases).

In this case, the Eighth Circuit simply applied settled law governing the accrual of Section 1 conspiracy claims rather than the rule for illegal mergers under Section 2 or some other provision of antitrust law. Like the conspiracy in Zenith, the conspiracy to allocate markets and customers in this case does not constitute a one-time violation that occurred when the parties reached their agreement. After all, the act of reaching an agreement by itself has no effect on competition or consumers – the antitrust harm arises only if, and for so long as, the agreement is carried out and petitioners continue to refrain from competing, resulting in an overcharge to their customers.

This holding does not, as petitioners claim, “all but eliminate[] repose” in cases like this. Pet. 30. If a defendant wants repose, it can simply stop violating the law: the limitations period will run out four years later. On the other hand, as the Eighth Circuit noted, under petitioners’ proposed rule, defendants could cause the limitations period to run out before a plaintiff ever has a chance to sue. That is, defendants could “agree to divide markets for the purpose of raising prices, wait four years to raise prices, then reap the profits of their illegal agreement with impunity,” and in perpetuity, “because any antitrust claims would be time barred.” Pet. App. 16a.

The fact that petitioners’ market and customer division agreement was related to an “asset swap”

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does not alter the accrual rule. The violation here arises from overcharges resulting from petitioners’ continuing horizontal agreement not to compete, not because of the asset swap – D&G’s claims would be precisely the same if the swap had never taken place and petitioners had simply agreed to withdraw from each other’s market. That the agreement not to compete was allegedly ancillary to a business acquisition may affect the test for deciding the merits of D&G’s claims; but it does not change when the claim accrued.

2. It is thus unsurprising that petitioners are able to find only one case in the entire history of the Sherman Act that they are willing to say applied their proposed rule in conflict with the decision in this case. See Pet. 25-27 (citing Z Techs., 753 F.3d 594).6

There is no conflict. In Z Technologies, the Sixth Circuit addressed how the statute of limitations applied to a plaintiff’s claim that the defendant’s purchase of a competing business was in “violation of Section 2 of the Sherman Antitrust Act.” 753 F.3d at 597. The court explained that Section 2 “makes it an offense to ‘monopolize, or attempt to monopolize . . . any part of the trade or commerce among the several States.’” Id. at 597-98 (quoting 15 U.S.C. § 2). Because the purchase constituted the unlawful act of attempted monopolization, the court held that the claim accrued at the time of the acquisition and that

6 The scarcity of applicable precedent seriously undermines

petitioners’ claim that the question presented is recurring and important. See Pet. 30-31.

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price increases arising later did not extend the limitations period. Z Techs., 753 F.3d at 598-99.

Importantly, the Sixth Circuit expressly distinguished the case before it from this very case and others like it, “involv[ing] price increases brought in conspiracy claims, not in merger monopolization” cases. Z Techs., 753 F.3d at 598 n.2 (emphasis in original) (citing district court decision in this case). “In a conspiracy,” the court explained, “each price increase requires further collusion between multiple parties to maintain the monopoly; in a merger-acquisition case, however, the cause of harm is the merger itself.” Id. at 599.

The law of the Eighth Circuit is in complete accord. The decision in this case applies the continuing violation doctrine to D&G’s Section 1 horizontal conspiracy claim, as the Sixth Circuit in Z Technologies agreed is appropriate. At the same time, other Eighth Circuit decisions follow Z Technologies in refusing to apply the continuing violation doctrine to business mergers. See Midwestern Mach. Co., 392 F.3d at 269-72 (challenging merger under Section 7 of the Clayton Act); Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1050-52 (8th Cir. 2000) (same) .

Petitioners say that the Sixth Circuit erred in distinguishing horizontal conspiracy and monopolization cases. Pet. 26-27. But that is simply a backhanded acknowledgment that the Sixth Circuit did not create a circuit conflict with those cases. Petitioners cannot seriously argue that courts within the Sixth Circuit will understand Z Technologies to not only permit, but affirmatively require, them to ignore the difference between monopolization and

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conspiracy claims, when the decision itself says the exact opposite.

3. Finally, this case is a poor vehicle for resolving any statute of limitations question. Even if the Court held that the continuing violation doctrine did not apply to D&G’s claims, that would not likely change the outcome of the case. As the Eighth Circuit explained, under any accrual theory, the “limitations period begins to run against customers only when the ‘customers have reason to know of the violation and their damages are sufficiently ascertainable to justify an antitrust action.’” Pet. App. 17a (quoting AREEDA & HOVENKAMP, supra, ¶ 320c4) (emphasis added by court)). D&G argued below that its claims were timely under this rule, even if the continuing violation doctrine did not apply, because petitioners’ non-compete agreement (unlike a public merger) was kept secret. See Pet. App. 56a; D&G C.A. Reply Br. 15.

Given its holding that the continuing violation doctrine did apply, the Eighth Circuit had no occasion to address D&G’s alternative tolling argument. Pet. App. 94a-99a. But as petitioners acknowledge, see Pet. 28, the Eighth Circuit went out of its way to note that if D&G’s evidence were believed, “the anticompetitive nature of the wholesalers’ agreement was not revealed until several years after the asset exchange.” Pet. App. 16a. At the very least, the application of the tolling doctrine could depend on disputed facts. See id. 16a-

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17a.7 And that would preclude resolving the statute of limitations defense at summary judgment, much less on the pleadings.8

Petitioners do not ask this Court to resolve the tolling question in the first instance (and, in any case, the issue falls outside the scope of the Questions Presented). Consequently, there is every reason to believe that even if this Court rejected the Eighth Circuit’s application of the continuing violation doctrine to this case, the Eighth Circuit would nonetheless affirm the denial of petitioners’ motion to dismiss on tolling grounds.

7 The Eighth Circuit was aware that the district court

concluded that tolling was unavailable because, in the trial court’s view, D&G had not been sufficiently diligent in seeking to discover the true nature of the secret agreement. See Pet. App. 56a-61a. The fact that the panel nonetheless spent time identifying the tolling rule and discussing its potential application suggests that the court was at the very least skeptical of the district court’s conclusion.

8 Petitioners asserted their limitations defense only in their motion to dismiss, see Pet. App. 55a, not in their “targeted summary judgment motion,” which had raised the “single dispositive issue” of antitrust injury. Id. at 8a.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be denied.

Respectfully submitted,

W. Joseph Bruckner Elizabeth R. Odette LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Ave. South Suite 2200 Minneapolis, MN 55401 Daniel A. Kotchen Daniel L. Low KOTCHEN & LOW LLP 2300 M Street, NW Suite 800 Washington, D.C. 20037

Richard B. Drubel Counsel of Record Kimberly H. Schultz Matthew J. Henken BOIES, SCHILLER & FLEXNER LLP 26 South Main St. Hanover, NH 03755 (603) 643-9090 rdrubel@bsfllp.com

April 29, 2015