USA Law and Practice Contributed by: Robert Houck, William Lavery, Leigh Oliver and Joseph Ostoyich, Clifford Chance LLP
3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations A private litigant may pursue a claim for damages under the federal antitrust laws within four years after the cause of action has “accrued” (15 USC Section 15b). An antitrust claim accrues when the defend - ants’ offending conduct causes the claimant to suffer a non-speculative injury. In the case of an ongoing conspiracy, the limitations period runs from each new “overt act” in furtherance of the conspiracy that inflicts new and accumulating injuries on the plaintiff ( Zenith Radio Corp v Hazeltine Research , 401 US 321 [1971]). In some cases, the theory of “fraudulent concealment” may equitably “toll” (ie, pause) the limitations peri - od where defendants have taken affirmative actions to prevent a plaintiff from learning of their cause of action. The limitations period for private litigants can also be tolled for other statutory reasons, such as a pend - ing government action for the same conduct (15 USC Section 16[i]). In addition, the statute of limitations for a plaintiff who opts out of a purported class action remains tolled during pendency of the class claim ( American Pipe & Construction v Utah , 414 US 538 [1974]). In 2018, the Supreme Court clarified that this rule applies only to opt-out plaintiffs who seek to pur - sue damages claims on their own behalf, and not to plaintiffs who seek to re-assert class claims after a prior class has failed to achieve certification for the same issues ( China Agritech v Resh , 138 S Ct 1800 [2018]). Limitations periods under state antitrust laws vary from as little as one year to as much as six years, with four years being the most common. A small handful of states do not specify a limitations period for antitrust claims. 3.2 Typical Length of Private Antitrust Litigation The duration of federal antitrust litigation varies dra - matically. Most cases are dismissed or resolved before trial. Cases can be dismissed at the pleadings stage with reasonable speed, though claimants may be permitted to re-plead their allegations, and may
Consequences of Federal Antitrust Enforcement Actions A federal antitrust enforcement action can have important consequences for parallel private litiga - tion. For example, a final judgment or decree against a defendant in a federal antitrust enforcement action can serve as prima facie evidence against that defend - ant in related private litigation (15 USC Section 16[a]). In addition, the Division periodically intervenes in civil antitrust litigation to request a stay of discovery where the Division believes the exchange of evidence between the parties could undermine the Division’s ongoing criminal investigation of one or more defend - ants. Finally, the Division and the FTC may intervene in private antitrust litigation as an amicus curiae to offer their views on the application of the antitrust laws to a given complaint. 2.4 Proof Section 4 of the Clayton Act requires a plaintiff to prove that the defendant(s) violated the antitrust laws and that the plaintiff has been “injured in his business or property” – that is, suffered economic loss – “by reason of” that violation (15 USC Section 15). Plaintiffs in federal antitrust cases must prove each element of their claim by a “preponderance of the evidence” – meaning they must establish through direct or cir - cumstantial evidence that a fact is more likely than not true. 2.5 Pass-On Defence Defendants in federal antitrust litigation cannot escape liability by establishing that direct purchasers passed on to indirect purchasers some or all of an anti-com - petitive overcharge ( Hanover Shoe v United Shoe Mach , 392 US 481 [1968]). However, several state antitrust laws authorising antitrust claims by indirect purchasers provide that courts should take steps to avoid duplicative recovery, including by apportioning damages between direct and indirect purchasers (as discussed in 4.3 Direct/Indirect Purchasers ).
247 A NTITRUST LI T IGATI O N 2026
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