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October 3, 1969

Russ Togs, Inc., et al., Plaintiffs,
Grinnell Corp., et al., Defendants

Metzner, D.J.

The opinion of the court was delivered by: METZNER


Defendants in these private antitrust actions move for partial summary judgment with respect to any claims which may have accrued more than four years prior to the filing of the respective complaints on the ground that such claims are barred by the applicable statute of limitations. § 4B of the Clayton Act, 15 U.S.C. § 15b, provides:

"Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued."

 The plaintiffs resist the motion, relying on § 5(b) of the Clayton Act, 15 U.S.C. § 16(b), which provides:

"Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws . . . the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter. . . ."

 They contend that they commenced their actions "during the pendency" of the government's suit or within a year thereafter, and thus are entitled to the tolling period provided by § 5(b) in determining the bar of § 4B. At issue is the exact time when the government's suit ceased to "pend."

 On April 13, 1961, the government filed a civil action against all four defendants in the District Court of Rhode Island, seeking injunctive relief for violations of the antitrust laws. United States v. Grinnell Corp., Civ. No. 2785. On November 27, 1964, the district court filed its findings of fact, conclusions of law and final decree in that action (236 F. Supp. 244), holding that defendants had violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. All parties appealed, the government because it deemed the relief inadequate and the defendants on both the merits and relief.

 On June 13, 1966, the Supreme Court held that "The judgment below is affirmed except as to the decree. We remand for further hearings on the nature of the relief consistent with the views expressed herein." 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966). The mandate on the opinion issued on July 8, 1966 and was filed in the district court on July 11, 1966. On July 11, 1967, the district court entered a final judgment detailing the relief to be granted against defendants in which it was stated "The effective date of this Judgment shall be November 1, 1967."

 Defendants argue that the government enforcement action ceased to pend on June 13, 1966, the date of the opinion of the Supreme Court. In their view, the tolling provision of § 5(b) expired on June 13, 1967, one year after the date of the Court's opinion. Therefore, any private suit instituted after that date should be governed by the four-year provision of § 4B. Plaintiffs take the position that the government action continued pending until July 11, 1967, the date of the district court's second decree, so that plaintiffs who filed on or before July 11, 1968 can survive this motion. Certain plaintiffs who filed after July 11, 1968 argue that the enforcement action was pending until September 9, 1967, the date when the time to appeal from the second decree expired.

 It is defendants' contention that the opinion of the Supreme Court conclusively determined all questions of liability when it affirmed each finding of antitrust violation and the only remaining task for the district court was to work out the relief to be ordered against the defendants. As soon as liability has been determined, the argument runs, defendants' victims have all the information they need to decide whether to sue, and they can not be prejudiced if the one-year extension begins to run from that time. Furthermore, they contend that defendants will be unduly prejudiced during the years usually necessary to work out the final details of relief, since they will needlessly remain open to private actions on stale claims.


 This liability-relief distinction fails for a number of reasons. In the first place, it does not fit well with the plain language of § 5(b). That section tolls the statute of limitations "during the pendency" of "any civil or criminal proceeding . . . instituted by the United States" and for a year thereafter. If the draftsmen had meant to toll the statute only during the pendency of that part of the proceeding in which liability is determined, they would presumably have used different language to make clear their intent.

 A proceeding "pends" until it is terminated. The legislative history and case law support the intention to use this plain meaning in this statute. President Wilson's speech of January 20, 1914, asking Congress to give private litigants the benefits of government enforcement actions, urged that "the statute of limitations . . . be suffered to run against such litigants only from the date of the conclusion of the Government's action." 51 Cong. Rec. 1964 (1914). The Senate report which accompanied the amendment of § 5(b) stated:

"To alleviate such difficulties, the present bill would extend the tolling period not only for the duration of the Government's antitrust suit, but for 1 year thereafter." Senate Report No. 619, 84th Cong. 1st ...

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