The opinion of the court was delivered by: Sweet, District Judge.
Defendant New York Stock Exchange ("NYSE") moves to dismiss
the complaint on the grounds that the action is time-barred by
the statute of limitations. For the following reasons, the
motion is granted.
NYSE is a New York corporation which operates as a securities
exchange, providing a market for the trading of securities.
Plaintiff William J. Higgins ("Higgins") is a member of NYSE
who operates as an independent broker, executing orders on the
floor of NYSE as an agent for others.
In 1981, Higgins sought permission from NYSE to install an
unrestricted business telephone line in his booth on the NYSE
floor. At the time, NYSE allowed only restricted lines on the
NYSE floor, ostensibly for the purpose of preventing large
institutional investors from being able to tie up any direct
phone lines to the floor and thereby gain an edge over smaller
investors. Higgins alleges that such a phone line would have
allowed him to communicate directly with non-NYSE-members,
thereby allowing him to compete with other members for their
customers. In keeping with its then policy, NYSE denied Higgins
In 1984, Higgins again sought permission to have an outside
line connected to his booth. This time, Higgins also requested
permission to have the new line connected to a cordless
telephone, which he could carry with him while he was away from
his booth on the trading floor. Again NYSE rejected Higgins'
request. Higgins appealed this decision to NYSE's board of
directors, which affirmed the rejection on March 7, 1985.
On June 15, 1990, Higgins filed this action alleging that
NYSE's denials of his requests for a telephone in his booth
constituted a conspiracy to violate the Sherman Act, 15 U.S.C. § 1.
The alleged conspiracy involves the efforts of NYSE and
various NYSE members to prevent Higgins from competing with
other NYSE members by preventing him from communicating with
non-member customers from his booth. Higgins also contends that
an object of the conspiracy was the fraudulent concealment of
the fact that NYSE had no intention of giving fair
consideration to any of Higgins requests for a telephone line
in his booth. Higgins seeks treble damages under § 4 of the
Clayton Act, 15 U.S.C. § 15.
1. The statute of limitations was not tolled by the SEC
NYSE moves to dismiss on the grounds that Higgins action is
barred by the four-year statute of limitations applicable to an
action under the Clayton Act, contained in § 4B, 15 U.S.C. § 15b.
NYSE contends that, because Higgins' complaint deals with
events which occurred prior to June 15, 1986 — four years
before the filing of the complaint — his action is
time-barred. Higgins counters that his instigation of the
administrative proceedings with the SEC tolled the statute
until those proceedings were completed in 1987.
Higgins relies on Ricci v. Chicago Mercantile Exchange,
409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973) and Mt. Hood
Stages, Inc. v. Greyhound Corp., 616 F.2d 394 (9th Cir.), cert.
denied, 449 U.S. 831, 101 S.Ct. 99, 66 L.Ed.2d 36 (1980) to
support his contention that the statute of limitations was
tolled during the pendency of the SEC proceedings. In Ricci,
the Supreme Court held that antitrust proceedings against the
defendant Chicago Mercantile Exchange should be stayed pending
administrative proceedings before the Commodity Exchange
Commission ("CEC"), because certain issues were within the
CEC's jurisdiction and its resolution of those issues was
essential to the antitrust claim. 409 U.S. at 304-05, 93 S.Ct.
at 581-82. In Mt. Hood, the Ninth Circuit held that where an
administrative proceeding was a prerequisite to the plaintiff's
antitrust suit the statute of limitations would be tolled
during the proceeding. Higgins argues that Ricci implies that
his SEC proceeding was in fact a prerequisite to his antitrust
claim, and that Mt. Hood therefore provides that the
limitations period was tolled during the SEC proceeding.
However, in Ricci the plaintiff had filed a timely antitrust
action and the defendant had moved to dismiss. This motion was
denied, but the case was stayed pending the outcome of the CEC
proceedings. Because the defendant had timely notice of the
plaintiff's claims, there was little prejudice from delaying
the suit while the CEC ruled on the dispute. In the present
case, on the other hand, NYSE had no knowledge or reason to
know that Higgins intended to bring an antitrust suit until
well after the limitations period had expired. Higgins cannot
avail himself of the ...