D&G, Inc. v. SuperValu, Inc., et al

Filing

OPINION FILED - THE COURT: William Jay Riley, Myron H. Bright and Jane Kelly AUTHORING JUDGE:William Jay Riley (PUBLISHED) [4156192] [13-1297]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1297
___________________________
In re: Wholesale Grocery Products Antitrust Litigation
____________________
D&G, Inc., doing business as Gary’s Foods
lllllllllllllllllllll Plaintiff - Appellant
DeLuca’s Market Corp.
lllllllllllllllllllll Plaintiff
v.
SuperValu, Inc.; C&S Wholesale Grocers, Inc.
lllllllllllllllllllll Defendants - Appellees
____________________
American Antitrust Institute
lllllllllllllllllllllAmicus Curiae
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: November 21, 2013
Filed: May 21, 2014
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Before RILEY, Chief Judge, BRIGHT and KELLY, Circuit Judges.
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RILEY, Chief Judge.
This antitrust case pits a small town, family-owned grocery store against the
two largest grocery wholesalers in the United States. D&G, Inc., operates the Gary’s
Foods store in Mount Vernon, Iowa. In 2003, D&G’s wholesaler, SuperValu, Inc.,
agreed to a geographic asset exchange with C&S Wholesale Grocers, Inc., and its
subsidiaries. SuperValu took the Midwest, while C&S took New England.
According to D&G’s expert, the asset exchange agreement expectedly would increase
wholesale prices in the Midwest. Unsurprisingly, the wholesalers and their expert
disagree. D&G sued the wholesalers under the first section of the Sherman Act,
15 U.S.C. § 1, and the fourth section of the Clayton Act, 15 U.S.C. § 15(a), and
moved for class certification. The district court denied the certification motion and,
on cross-motions for full and partial summary judgment, granted summary judgment
to the wholesalers. D&G appeals. We affirm in part, reverse in part, vacate in part,
and remand.
I.

BACKGROUND
A.
Factual History
C&S and SuperValu are the two largest grocery wholesalers in the United
States. Grocery wholesalers are a critical link in the grocery supply chain, purchasing
thousands of products directly from manufacturers and suppliers before distributing
them to retailers. “Partial-line” wholesalers specialize in a handful of specialty
product categories, while “full-line” wholesalers like C&S and SuperValu distribute
tens of thousands of products spanning every category. To stock the thousands of
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products Americans expect to find in their local grocery store, small retailers like
D&G need one full-line wholesaler in addition to partial-line wholesalers and direct
suppliers.
Before June 2002, SuperValu was C&S’s “largest” and “closest” competitor
in New England, where C&S was the primary wholesaler. C&S did not compete at
all with SuperValu in the Midwest, where SuperValu was the dominant wholesaler.
In June 2002, C&S acquired a distribution center in Ohio dedicated to serving a
regional grocery chain, and eyed expansion into the rest of SuperValu’s Midwestern
market. Less than a year later, SuperValu’s main competitor in the Midwest, Fleming
Companies, filed for bankruptcy. SuperValu submitted a regional bid for Fleming’s
Midwestern business, but C&S announced its intention to acquire Fleming’s
wholesale assets nationwide, positioning C&S to become SuperValu’s top competitor
in the Midwest. When this news became public, MarketWatch reported SuperValu’s
stock price “tumbl[ed] . . . as investors worried that a stronger rival was stepping into
the wholesale grocery picture.” SuperValu Subtracts 8% as Competition Heats Up,
MarketWatch (June 30, 2003, 11:25 AM), http://www.marketwatch.com/story/
supervalu-subtracts-8-as-competition-heats-up.
Even as C&S and Fleming negotiated, SuperValu was involved in negotiations
of its own—with C&S. In May 2003, C&S formally offered to acquire SuperValu’s
entire wholesaling operation in New England. On July 7, 2003, C&S and Fleming
reached a final agreement, allowing C&S, if it so chose, to designate a third party to
acquire Fleming’s Midwestern assets. On July 20, 2003, C&S executive vice
president Mark Gross informed SuperValu senior corporate counsel Sheila Hagen,
by e-mail, that C&S and SuperValu “ha[d] always been discussing your departure
from New England. No carve-outs. The purchase price/swap only makes sense with
your departure.” (Emphasis added). Hagen replied, indicating SuperValu’s
willingness “to discuss the issue of New England sales w/ [sic] you.” The following
morning, Gross replied:
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We are not interested in a transaction that leaves Supervalu in New
England. . . . [W]e have been discussing this for months. This is the
basis of the deal. Finally, you should look at [the letter of intent], it says
you won’t compete with us in New England.
(Emphasis added).
In September 2003, the two wholesalers reached an agreement: C&S agreed to
designate SuperValu to receive Fleming’s Midwestern assets, and in exchange
SuperValu agreed to transfer all of its New England assets to C&S. The agreement
also contained reciprocal non-compete provisions. C&S agreed not to sell without
SuperValu’s prior approval to certain former Fleming customers in the Midwest for
two years and not to solicit business from any of those customers for five years.
SuperValu, meanwhile, agreed not to sell, without C&S’s prior approval, to any of
its former New England customers for two years and not to solicit their business for
five years.
The parties generally agree that the written terms of the non-compete
provisions were limited to former customers in the regions, theoretically permitting
each wholesaler to compete for the business of each other’s new and existing
customers. But, if D&G’s evidence is believed, the two wholesalers conformed more
closely to the sentiment expressed in Gross’s e-mails—the “basis of the deal” being
SuperValu’s promise not to “compete . . . in New England”—than to the letter of the
agreement. SuperValu sought no customers in New England—new, former, or
existing—and in the Midwest C&S supplied only two customers whose operations
spanned several geographic regions.
Shortly after completing the transaction, both wholesalers closed all the
distribution centers they had acquired through the deal. SuperValu’s market share in

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the Midwest increased from 40% to 65%, and the market concentration1 of the
Midwestern wholesale grocery market almost doubled. According to D&G’s expert,
this increase in market concentration was ten times the amount deemed “likely to
create or enhance market power” by the Department of Justice (DOJ) and Federal
Trade Commission (FTC), the agencies charged with enforcing federal antitrust laws.
Until August 2005, SuperValu was D&G’s full-line wholesale supplier.
SuperValu charged D&G using a pricing formula called “activity based sell” (ABS).
According to D&G, almost all SuperValu customers in the Midwest were subject to
the ABS formula. The ABS price varied by product and distribution center, such that
D&G would pay more for the same product if supplied from SuperValu’s Minnesota
distribution center than if supplied from SuperValu’s center in Illinois. Before the
beginning of the putative class period (December 31, 2004), D&G convinced
SuperValu to change its supply center from Minnesota to Illinois.
Despite the change in supply centers, D&G’s evidence indicates that its costs
actually rose. During the class period, D&G’s ABS fees increased thirty basis points.
According to economic analysis conducted by D&G’s expert, SuperValu’s gross
profit margins at the Illinois center were higher than possible in a competitive market,
increasing seventy basis points following the agreement with C&S during a period
when profits fell at the SuperValu centers that competed with C&S.
B.
Procedural History
On December 31, 2008, D&G filed a class action complaint in the Western
District of Wisconsin against the wholesalers. The wholesalers moved pursuant to
28 U.S.C. § 1404(a) to transfer venue to the District of Minnesota. On April 24,
1

Market concentration, typically measured using the Herfindahl-Hirschman
Index, is a function of (1) the number, and (2) respective market shares of firms in a
given market. See U.S. Dep’t of Justice & Federal Trade Comm’n, Horizontal
Merger Guidelines § 5.3 (2010).
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2009, the Wisconsin district court granted the motion. In the meantime, other
plaintiffs filed similar complaints against the wholesalers in the Districts of New
Hampshire, Northern Illinois, and Minnesota. On October 16, 2009, the U.S. Judicial
Panel on Multidistrict Litigation ordered centralization in the District of Minnesota
pursuant to 28 U.S.C. § 1407. After D&G2 amended its complaint, the centralized
litigation elicited a flurry of motions.
First, the wholesalers moved to dismiss under Federal Rule of Civil Procedure
12(b)(6), and D&G moved for partial summary judgment, arguing the wholesalers’
non-compete agreement was a per se violation of 15 U.S.C. § 1. The district court
agreed with the wholesalers that the four-year statute of limitations precluded claims
accruing before December 31, 2004—four years before the first complaint was
filed—but denied the motion to dismiss. The district court also denied D&G’s partial
summary judgment motion, reasoning “outstanding issues regarding the per se rule
and ancillarity” precluded summary judgment.
Second, the wholesalers moved to strike D&G’s expert report under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), while D&G moved under
Fed. R. Civ. P. 23 to certify a “Midwest Class” consisting of SuperValu customers in
the Midwest region. The district court denied both motions, believing that even with
the expert report D&G lacked common evidence to show class-wide impact. Because
SuperValu used “formulaic” ABS pricing, D&G made “a better case for certification
of the Midwest Class than the New England class.” But the district court nonetheless
denied certification because D&G could not “articulate a method for showing with
the same evidence that ABS fees were inflated” for all putative class members.
2

Although the underlying antitrust litigation involves multiple plaintiffs, D&G
is the only one at issue in this appeal. Cf. In re Wholesale Grocery Prods. Antitrust
Litig., 707 F.3d 917, 919 (8th Cir. 2013) (reversing “the district court’s ruling that
equitable estoppel bars” other plaintiffs “from asserting antitrust claims in federal
court”).
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Although SuperValu used the same ABS formula across the Midwest, each
distribution center plugged different values into the formula, requiring “an analysis
of each distribution center’s fees and . . . competitive conditions.”
Third, in response to the denial of class certification, D&G sought leave to file
a revised class certification motion limiting the putative class to SuperValu customers
supplied from the Champaign, Illinois, distribution center, meaning the ABS formula
inputs would be the same for all class members. D&G also moved for partial
summary judgment, arguing the wholesalers committed a per se antitrust violation,
while the wholesalers moved for “targeted summary judgment” based “on a single
dispositive issue: there is no evidence that [D&G] suffered injury from [the
wholesalers’] alleged antitrust violation.” D&G opposed the wholesalers’ motion and
moved to defer consideration under Federal Rule of Civil Procedure 56(d), asserting
their expert needed more time.
The district court denied D&G’s motions, granted the wholesalers’ motion, and
denied as moot the revised class certification request. Relying on its earlier decision,
the district court again found no reason to treat the non-compete agreement as a per
se antitrust violation. Instead, moving somewhat beyond the “targeted” motion filed
by the wholesalers, the district court not only found D&G failed to establish injury
(the subject of the motion), but also found D&G failed to define the relevant
market—something D&G’s filings in response to the “targeted” motion had no reason
to address. D&G timely appeals, invoking our jurisdiction under 28 U.S.C. § 1291.
II.

DISCUSSION
We review the district court’s summary judgment orders “de novo, viewing the
record in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Bishop v. Glazier, 723 F.3d 957, 960-61 (8th Cir.
2013). Although the Supreme Court, long ago, hinted summary judgment should be
rare in antitrust cases “where motive and intent play leading roles,” Poller v.
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Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962), it is now beyond debate that
“the Supreme Court would find an error of law in the imposition of a heightened
standard for summary judgment in a complex antitrust case.” City of Mt. Pleasant,
Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 274 (8th Cir. 1988).3
We apply the same standard—whether the record reveals a genuine dispute of
material fact—to antitrust and non-antitrust cases alike, neither favoring nor
disfavoring summary judgment, but simply following the evidence (or lack thereof)
and the law wherever they lead. See Fed. R. Civ. P. 56(a); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 598 (1986) (explaining, in a complex
antitrust case, that without a “‘genuine issue for trial,’ . . . petitioners are entitled to
. . . summary judgment” (quoting a prior version of Fed. R. Civ. P. 56(e)).4
The district court’s other decisions at issue involve exercises of discretion,
which we review for abuse. See, e.g., Luiken v. Domino’s Pizza, LLC, 705 F.3d 370,
372 (8th Cir. 2013) (reviewing class certification decision for abuse of discretion);

3

To the extent some of our more recent cases have, without explanation,
perpetuated dicta that district courts should rarely enter summary judgment in
antitrust cases, see, e.g., HDC Med., Inc. v. Minntech Corp., 474 F.3d 543, 546 (8th
Cir. 2007), this dicta must be rejected as inconsistent with Judge Richard S. Arnold’s
cogent analysis, and binding prior-panel opinion in Associated Electric, 838 F.2d at
273-74. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).
4

Surprisingly, it appears our adherence to the unadorned text of Rule 56(a)
places us at odds with two other circuits—inconsistent with each other as well as
inconsistent with our circuit. Compare PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101,
104 (2d Cir. 2002) (per curiam) (“In the context of antitrust cases . . . summary
judgment is particularly favored because of the concern that protracted litigation will
chill pro-competitive market forces.” (emphasis added)), with Thurman Indus., Inc.
v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1373 (9th Cir. 1989) (“[T]his circuit
generally disfavors summary judgment in antitrust cases.”) (emphasis added)).
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Chambers v. Travelers Cos., 668 F.3d 559, 568 (8th Cir. 2012) (reviewing Fed. R.
Civ. P. 56(d) continuance decision for abuse of discretion).
A.
Summary Judgment
The critical issue in this appeal is whether the record evinces a “genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). Both sides cloud the issue in
an effort to convince us to rule, as a matter of law, in their favor: D&G’s brief recasts
this simple question into two issues with three sub-issues, while the wholesalers’ brief
splits the question into two and a half issues. We decline the parties’ invitations to
ensnare this appeal in legal and factual minutiae which are not relevant to the
outcome.
1.
Per Se Violation
D&G confuses the real issue by arguing the undisputed evidence establishes
a per se violation of the antitrust laws. The district court treated this as a purely legal
question and looked solely at the written terms of the wholesalers’ non-compete
agreement. This approach understandably led the district court to deny D&G’s partial
motion for summary judgment because, by its plain terms, the non-compete
agreement is not a pure, horizontal division of customers or geographic territories.
Cf., e.g., Palmer v. BRG of Ga., Inc., 498 U.S. 46, 50 n.6 (1990) (per curiam)
(“‘[D]ivision of markets’ is [a] per se offense.” (quoting Arizona v. Maricopa Cnty.
Med. Soc’y, 457 U.S. 332, 344, n.15 (1982))). 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.
For the same reason D&G was not entitled to summary judgment on the per se
violation question, the wholesalers are not entitled to a summary determination that
their agreement deserves rule-of-reason scrutiny: a material, genuine factual dispute
exists. See Fed. R. Civ. P. 56(a). To be sure, “‘the selection of a mode [of analysis]
is entirely a question of law.’” Craftsmen Limousine, Inc. v. Ford Motor Co., 363
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F.3d 761, 772 (8th Cir. 2004) (alteration in original) (quoting Phillip E. Areeda &
Herbert Hovenkamp, Antitrust Law ¶ 1909b (1998)). But underpinning that purely
legal decision are numerous factual questions.
The crucial factual question here: What are the terms of the allegedly
anticompetitive agreement? Perhaps there are aspiring monopolists foolish enough
to reduce their entire anticompetitive agreement to writing, which would make the
answer easy. But most would-be monopolists probably can be expected to display
a bit more guile, jotting down only a few seemingly common terms while sealing their
true anticompetitive agreement with a knowing nod and wink. If D&G’s evidence
is accepted, that is what happened here.
It is true, as the district court correctly noted, that the written non-compete
agreement applied to former customers, theoretically permitting the wholesalers to
compete for the existing and future customers. But this is not a contracts case in
which the scope of the alleged anticompetitive agreement is cabined by the four
corners of the written document. Not confined by the parol evidence rule, D&G
could use all manner of extrinsic evidence to persuade a jury that what the
wholesalers actually agreed to was a naked division of territory and customers. And
the record contains enough evidence, viewed in the light most favorable to D&G,
potentially to convince a reasonable jury of this fact.
Tellingly, 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. Also revealing are e-mails, written by C&S’s executive
vice president, indicating “the basis of the deal” was that SuperValu would “depart[]
from New England” and “wo[uld]n’t compete with [C&S] in New England” and C&S
was “not interested in a transaction that leaves SuperValu in New England.”
Considering these pieces of evidence along with D&G’s other evidence, a reasonable

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jury could conclude the wholesalers’ real agreement involved dividing territory and
customers along geographic lines.
If a reasonable jury were to make this factual finding, then the wholesalers
committed a per se antitrust violation.5 See, e.g., Leegin Creative Leather Prods., Inc.
v. PSKS, Inc., 551 U.S. 877, 886 (2007) (“Restraints that are per se unlawful include
horizontal agreements among competitors to . . . divide markets.”); Palmer, 498 U.S.
at 49 (“[A]greements between competitors to allocate territories to minimize
competition are illegal [and] . . . ‘per se violations of the Sherman Act.’” (quoting
United States v. Topco Assocs., Inc., 405 U.S. 596, 608 (1972))); Nitro Distrib., Inc.
v. Alticor, Inc., 565 F.3d 417, 423 (8th Cir. 2009) (“[C]ustomer allocation agreements
are among the ‘most elementary’ violations [of the Sherman Act,] and are generally
subject to a per se analysis.” (quoting Hammes v. AAMCO Transmissions, Inc., 33
F.3d 774, 782 (7th Cir. 1994))).
This case is similar to Hammes, where then-Chief Judge Richard Posner
summed up the decisive point this way:
The allocation of . . . customers among the dealers by means of
automatic call forwarding from phantom dealers supposedly located in
the borderline areas could eliminate competition for customers who, not
being within the gravitational field of any dealer by reason of proximity,
would, were it not for the allocation, have a real and not merely
theoretical choice between dealers. Such an out-and-out scheme of
customer allocation would be a per se violation of section 1. Of course
5

Because a jury, after hearing evidence from both sides, must first answer the
underlying factual questions, obviously we express no view at this stage whether the
wholesalers actually committed any antitrust violation—per se or otherwise. See,
e.g., Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1211 (8th Cir. 2013)
(“Which [side’s] story is more plausible we cannot say because ‘it is not our function
to remove the credibility assessment from the jury.’” (quoting Kukla v. Hulm, 310
F.3d 1046, 1050 (8th Cir. 2002))).
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we do not yet know whether this is the character of the [allegedly
anticompetitive] call-forwarding scheme.
Hammes, 33 F.3d at 782. Just as Hammes presented a factual dispute about the
nature of the alleged scheme, this case presents a factual dispute about the real terms
of the wholesalers’ agreement. This genuine and material factual dispute prevents
summary judgment as to whether a per se violation occurred. See Fed. R. Civ. P.
56(a).
2.
Rule of Reason
The wholesalers confuse the summary judgment analysis by contending that
since the undisputed facts do not necessarily prove a per se violation, they are entitled
to summary judgment under the rule of reason. The district court agreed for a reason
not addressed by the wholesalers’ summary judgment motion. Because the
wholesalers’ “targeted” motion never argued the market was undefined, D&G had no
reason to rebut this unraised argument. Yet the district court granted summary
judgment based on a finding that D&G had not properly defined the relevant market.
This was error. See Fed. R. Civ. P. 56(f)(2) (permitting sua sponte entry of summary
judgment only “[a]fter giving notice and a reasonable time to respond”).
In any event, summary judgment was not warranted because 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. See HDC Med.,
474 F.3d at 547 (“The relevant product market is a question of fact.” (emphasis
added)); Sw. Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass’n, 830
F.2d 1374, 1381 (7th Cir. 1987) (“[E]stablishing antitrust injury involves complex
questions of fact.” (emphasis added)). The district court appears to have weighed the
evidence, questioning the conclusions of D&G’s expert. “Making credibility
determinations or weighing evidence in this manner is improper at the summary
judgment stage.” Coker v. Ark. State Police, 734 F.3d 838, 843 (8th Cir. 2013). A

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reasonable jury, after viewing the expert testimony and weighing D&G’s evidence
that wholesale prices increased as a result of the non-compete agreement, could
disagree with the district court and find D&G’s expert persuasive and credible.6
For these reasons, neither side is entitled to summary judgment—partial or
“targeted”—and this case should be tried to a jury following any further pretrial
discovery and proceedings on remand.7
B.
Class Certification
On the second issue, we will not disturb the district court’s denial of class
certification for all SuperValu customers in the Midwest region. Class certification,
after all, is discretionary. See Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029
(8th Cir. 2010). A district court abuses its discretion in this context only if it “rests
its conclusion on clearly erroneous factual findings or if its decision relies on
erroneous legal conclusions.” Wedow v. City of Kan. City, Mo., 442 F.3d 661, 676
(8th Cir. 2006) (internal quotation omitted). Although D&G makes a plausible

6

Our conclusion that the district court erred in granting summary judgment on
the merits moots the challenge to the district court’s denial of D&G’s request for a
continuance under Rule 56(d).
7

Because the ultimate question whether per se or rule of reason analysis applies
is one of law, we expect the district court will present the jury with factual
interrogatories detailed enough to enable the court to make this choice. See Fed. R.
Civ. P. 49; cf., e.g., Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492,
498 (1988) (“In answers to special interrogatories, the jury found . . . . that
petitioner’s actions had an adverse impact on competition, were not the least
restrictive means of expressing petitioner’s opposition to the use of [a certain
product] in the marketplace, and unreasonably restrained trade in violation of the
antitrust laws.”); Baxley-DeLamar Monuments, Inc. v. Am. Cemetery Ass’n, 938
F.2d 846, 849 (8th Cir. 1991) (“In its answer to special interrogatories, the jury found
that there was no conspiracy among the defendants either to commit illegal tying
(section 1) or to monopolize the installation market (section 2).”).
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argument that small variations in ABS fee inputs among Midwestern distribution
centers do not prevent classwide damage calculations, the district court did not abuse
its discretion in finding otherwise. See id.
We do vacate the denial of D&G’s request to certify a narrower class of
SuperValu customers who were charged according to the ABS formula and supplied
from Champaign, Illinois. Although the evidence suggests the ABS fee inputs would
be standardized for this narrow class, at this stage we decline to opine whether
“questions of law or fact common to class members predominate over any questions
affecting only individual members.” Fed. R. Civ. P. 23(b)(3). We merely request the
district court to consider, in light of our holding that the wholesalers are not entitled
to summary judgment, whether to certify this class.
C.
Statute of Limitations
On the final issue, we agree with the district court that 15 U.S.C. § 15b does
not render D&G’s claims untimely.
The timeliness question in this case is controlled by Klehr v. A.O. Smith Corp.,
521 U.S. 179 (1997). In Klehr, the Supreme Court 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,
regardless of the plaintiff’s knowledge of the alleged illegality at much earlier times.”
Id. at 189 (internal quotations omitted) (emphasis added). Under D&G’s theory of
the case, the anticompetitive nature of the wholesalers’ agreement was not revealed
until several years after the asset exchange. Even though the written non-compete
agreement generally left the wholesalers free to compete for new and existing
customers, it was not apparent until later that the wholesalers’ real agreement was
(according to D&G’s evidence) a blatant market division.

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If the wholesalers’ logic were accepted, two parties 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 because any antitrust claims would
be time barred. That is not the law. Under Klehr, a monopolist commits an overt act
each time he uses unlawfully acquired market power to charge an elevated price. See
id. Although “the commission of a separate new overt act generally does not permit
the plaintiff to recover for the injury caused by old overt acts outside the limitations
period,” the plaintiff is entitled to recover for any discrete overt act occurring within
the limitations period. Id. at 189-90. 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.” Phillip E.
Areeda & Herbert Hovenkamp, Antitrust Law ¶ 320c4, at 303-04 (3d ed. 2007)
(emphasis added). In this case, the Clayton Act’s four-year limit does not preclude
D&G from recovering for inflated prices charged within the four years before D&G’s
December 31, 2008, complaint. See Klehr, 521 U.S. at 189-90.
III.

CONCLUSION
We affirm in part, reverse in part, vacate in part, and remand for further
proceedings consistent with this opinion.
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