Dan Oliver, et al v. SD-3C LLC, et al
FILED OPINION (RONALD M. GOULD, RICHARD A. PAEZ and DAVID A. EZRA) REVERSED AND REMANDED. Judge: RAP Authoring, FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAN OLIVER; JEANNIE OLIVER; JOE
SOLO; BERNARD GROSS; SUSAN
KEELIN; WALTER KVASNIK; KOU
GONZALEZ; SAMUEL D. LEGGETT;
BRIAN ALBEE; MARY LOUISE
FOWLER; JOE SHAW, On their own
behalves and on behalf of all others
similary situated; RHONDA SHULTZ,
SD-3C LLC; PANASONIC
CORPORATION OF NORTH AMERICA;
TOSHIBA CORPORATION; SANDISK
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
December 5, 2013—San Francisco, California
Filed May 14, 2014
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OLIVER V. SD-3C
Before: Ronald M. Gould and Richard A. Paez,
Circuit Judges, and David A. Ezra, District Judge.*
Opinion by Judge Paez
The panel reversed the dismissal as time-barred of an
action in which purchasers of SD digital memory cards
alleged that Panasonic Corp. and other defendants violated
federal and state antitrust laws by conspiring to fix the price
for SD cards and engaging in improper practices with respect
to the licensing of their patents to other manufacturers of SD
Distinguishing Samsung Electronics Co. v. Panasonic
Corp., 12-15184, 2014 WL 1328318 (9th Cir. Apr. 4, 2014),
the panel held that because the plaintiffs only sought
injunctive relief under § 16 of the Clayton Act, their federal
antitrust claim was subject to the equitable doctrine of laches
and not the four-year statute of limitations in § 4B of the
Clayton Act. The panel held that the plaintiffs’ allegations in
their first amended complaint were sufficient to establish that
laches was not a bar to their federal antitrust claim because a
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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OLIVER V. SD-3C
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continuing violations exception and a speculative damages
exception for computing the laches period both applied.
The panel also reversed the district court’s dismissal of
the plaintiffs’ antitrust claim under California’s Cartwright
Act and instructed that on remand, the district court should
apply the California Supreme Court’s decision in Aryeh v.
Canon Bus. Solutions, Inc., 55 Cal. 4th 1185 (2013), in
determining whether the Cartwright Act claim was timely
Amanda Bonn (argued), Susman Godfrey LLP, Los Angeles,
California; Max L. Tribble Jr., Joseph S. Grinstein, Eric J.
Mayer, Susman Godfrey LLP, Houston, Texas, for PlaintiffsAppellants Dan Oliver, Jeannie Oliver, Joe Solo, Bernard
Gross, Susan Keelin, Walter Kvasnik, Kou Srimounghanch,
Humberto Gonzalez, Samuel D. Leggett, Brian Albee, Mary
Louise Fowler, and Joe Shaw, on their own behalves and on
behalf of all others similarly situated, and Rhonda Shultz.
Christopher B. Hockett (argued), Davis Polk & Wardwell
LLP, Menlo Park, California, for Defendant-Appellee SD-3C,
LLC; Jeffrey L. Kessler, Winston & Strawn LLP, New York,
New York, for Defendants-Appellees Panasonic Corporation
and Panasonic Corporation of North America; Richard S.
Taffet, Bingham McCutchen LLP, New York, New York, for
Defendant-Appellee SanDisk Corporation; and Daniel M.
Wall, Latham & Watkins, San Francisco, California, for
Defendant-Appellee Toshiba Corporation.
OLIVER V. SD-3C
PAEZ, Circuit Judge:
In this antitrust suit, Plaintiffs, purchasers of SD digital
memory cards, allege that Defendants Panasonic Corporation,
Toshiba Corporation, SanDisk Corporation, and SD-3C, LLC
(collectively “Defendants”) violated federal and state antitrust
laws by conspiring to fix the price for SD cards and engaging
in improper practices with respect to the licensing of
Defendants’ patents to other manufacturers of SD cards. The
district court dismissed Plaintiffs’ claims as time-barred.
Reviewing de novo, we reverse. Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
Recently, in a related action, Samsung Electronics Co.,
Ltd. v. Panasonic Corp., 12-15185, 2014 WL 1328318 (9th
Cir. Apr. 4, 2014), we held that the district court erred in
concluding that the Clayton Act’s four-year statute of
limitations barred Samsung Electronics Company’s antitrust
claims for damages and injunctive relief against Panasonic
Corporation, Panasonic Corporation of North America, and
SD-3C. In this case, unlike the plaintiff in Samsung,
Plaintiffs only seek injunctive relief under section 16 of the
Clayton Act, 15 U.S.C. § 26. Because Plaintiffs seek only
injunctive relief under federal law, their federal antitrust
claim is subject to the equitable doctrine of laches and not the
four-year statute of limitations in section 4B of the Clayton
Act, 15 U.S.C. § 15b. Taking Plaintiffs’ allegations in the
First Amended Complaint (“FAC”) as true, as we must at this
stage of the litigation, we conclude that they are sufficient to
We have jurisdiction under 28 U.S.C. § 1291.
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OLIVER V. SD-3C
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establish that laches is not a bar to Plaintiffs’ federal antitrust
claim. Accordingly, we reverse and remand for further
In giving factual context for the federal and state antitrust
claims, Plaintiffs allege essentially the same facts regarding
the development of SD cards as those alleged in Samsung.
We therefore draw liberally from our Samsung opinion in
setting the stage for Plaintiffs’ lawsuit and their challenge to
the district court’s dismissal order.
SD cards are the dominant form of flash memory card on
the market, and are widely used in consumer electronics
devices such as cellular phones and digital cameras. In 1999,
Panasonic, Toshiba, and SanDisk developed SD cards as a
modified proprietary format of the flash memory cards then
available, created the SD Group to promote their use, and
created SD-3C to license the format to manufacturers. In
2003, Defendants created a standard license (the “2003
license”) that contained a clause imposing a 6 percent royalty
on SD cards sold by manufacturers who were not members of
the SD Group.
In 2005 and 2006, Defendants developed two new forms
of SD cards: the high capacity SD card (“SDHC”) which was
the same physical size as the first-generation product, but
used distinct software to give it a substantially higher storage
capacity than the original; and the much smaller microSD
card, designed for use in mobile phones. By its terms, the
2003 license did not cover these new formats. The SD group
met in the fall of 2006 and adopted an “Amended and
Restated SD Memory Card License Agreement” (the “2006
OLIVER V. SD-3C
license”), which contained the same 6 percent royalty terms
for non-SD Group manufacturers of the two new formats as
the 2003 license had required for the original cards.
The 2006 license also included a “fair market price”
provision pursuant to which Defendants were authorized to
determine the “fair market price” of SD cards and to use that
price as a baseline in calculating royalties. Plaintiffs allege
that this provision shows that Defendants, who control 70
percent of the SD market, intended to “agree upon and charge
a ‘fair market price’ for their SD [c]ards,” i.e. to fix the price
for SD cards in violation of federal and state antitrust laws.2
Plaintiffs further allege that, in addition to fixing the price of
SD cards, Defendants’ licensing practices violate antitrust
laws because Defendants do not separately license certain
patents that are part of the SD-3C patent pool and,
furthermore, refuse to negotiate the terms of the SD Card
Plaintiffs filed their lawsuit on March 15, 2011 and, of
note here, they allege that they purchased SD cards on or after
March 15, 2007. Plaintiffs’ first claim for relief seeks an
injunction under section 16 of the Clayton Act, 15 U.S.C.
§ 26, to enjoin Defendants’ alleged violations of section 1 of
the Sherman Act, 15 U.S.C. § 1. Unlike the corporate
plaintiff in Samsung, Plaintiffs do not seek treble damages
under section 4 of the Clayton Act, 15 U.S.C. § 15, as a
remedy for Defendants’ unlawful acts. Plaintiffs’ second
claim for relief alleges violations of California’s antitrust law,
Defendants argue that the allegations regarding the fair market price
provision are not sufficient to establish the existence of a price-fixing
conspiracy. We express no opinion on this issue. As set forth infra in
section IV, we leave this issue for the district court to address on remand.
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OLIVER V. SD-3C
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the Cartwright Act, Cal. Bus. & Prof. Code § 16720.
Plaintiffs seek treble damages in connection with this claim.
Plaintiffs’ third, fourth, and fifth claims for relief are for:
(1) unlawful conduct in violation of California’s Unfair
Competition Law (“UCL”), Cal. Bus. & Prof. Code §17200;
(2) violations of the antitrust laws of various states, e.g.
Arizona, the District of Columbia, and Kansas;3 and
(3) unjust enrichment and disgorgement of profits.
As in Samsung, the district court dismissed Plaintiffs’
claims on the ground that they were time-barred. The district
court held that the four-year statute of limitations set forth in
section 4B of the Clayton Act, 15 U.S.C. § 15b, applied to
Plaintiffs’ claims for injunctive relief and reasoned that
Defendants’ allegedly unlawful conduct began well before
the start of the four-year limitations period. Oliver v. 3D-3C,
LLC, No. C 11-01260 JSW, 2012 WL 1835740, at *3 (N.D.
Cal. May 21, 2012). The district court dismissed Plaintiffs’
state law claims on the same ground. Id. Given the narrow
ground on which the district court dismissed Plaintiffs’
lawsuit, we need only determine whether the court properly
dismissed Plaintiffs’ federal antitrust claim as time barred.
Although a claim for injunctive relief under section 16 is
“analogous” to a claim for damages under section 4, section
16 provides a distinct cause of action. Int’l Tel. & Tel. Corp.
v. Gen. Tel. & Electronics Corp., 518 F.2d 913, 926 (9th Cir.
Plaintiffs seek to maintain their action on behalf of themselves and a
series of sub-classes consisting of consumers from various states who
purchased SD cards within the class period, which includes the period
from March 15, 2007 to the present.
OLIVER V. SD-3C
1975) disapproved of on other grounds by California v. Am.
Stores Co., 495 U.S. 271 (1990) (“Clayton Act [§] 16
provides a private equitable remedy, analogous to the private
legal remedy of Clayton Act [§] 4, as a method of
enforcement of the prohibitions of Clayton Act [§] 7.”).
Unlike damages claims under section 4, which are subject to
section 4B’s four-year statute of limitations, there is no
statute of limitations for injunctive relief claims under section
16. Claims for injunctive relief, however, are subject to the
equitable defense of laches.4 Id. at 928. And, “in computing
the laches period,” section 4B’s four-year statute of limitation
is used as a “guideline.” Id.; see also Samsung, 2014 WL
1328318 at *4. Therefore, in applying laches, we look to the
same legal rules that animate the four-year statute of
limitations under section 4B. Ordinarily, “[a] cause of action
in antitrust accrues each time a plaintiff is injured by an act of
the defendant and the statute of limitations runs from the
commission of the act.” Pace Indus., Inc. v. Three Phoenix
Co., 813 F.2d 234, 237 (9th Cir. 1987) (citing Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971)).
As we discussed in our Samsung opinion, however, there are
recognized exceptions to this general rule.
First, “[i]n the context of a continuing conspiracy to
violate the antitrust laws, . . . each time a plaintiff is injured
by an act of the defendant a cause of action accrues to him
to recover the damages caused by that act.” Zenith, 401 U.S.
at 338. “[A]s to those damages, the statute of limitations runs
from the commission of the act.” Id. In order to restart the
Under the doctrine of laches, a suit seeking equitable relief will be
barred if a party has inexcusably delayed pursuing his claim and his
adversary has been prejudiced as a result. Int’l Tel. & Tel. Corp.,
518 F.2d at 926.
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OLIVER V. SD-3C
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statute of limitations, there must be a new overt act that: (1)
is “new and independent . . . [and] not merely a reaffirmation
of a previous act,” and (2) “inflict[s] new and accumulating
injury on the plaintiff.” Pace, 813 F.2d at 238.
Second, the limitations period may start to run after the
defendant’s initial violation of the antitrust law, if it is
“uncertain” or “speculative” whether the defendants’ antitrust
violation has injured the plaintiff at the time of the violation.
AMF, Inc. v. General Motors Corp. (In re Multidistrict
Vehicle Air Pollution), 591 F.2d 68, 72 (9th Cir. 1979) (citing
Zenith, 401 U.S. at 339); see also Samsung, 2014 WL
1328318 at *4–5. In such cases, the statute of limitations
period begins on the date that the plaintiff’s damages first
“accrued and became ascertainable.” AMF, 591 F.2d at 73.
We hold that both exceptions apply here.
Turning first to the continuing violation exception, the
Supreme Court and federal appellate courts have recognized
that each time a defendant sells its price-fixed product, the
sale constitutes a new overt act causing injury to the
purchaser and the statute of limitations runs from the date of
the act. Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997);
see also Hennegan v. Pacifico Creative Serv., Inc., 787 F.2d
1299, 1301 (9th Cir. 1986) (holding that a new overt act
occurred each time tour operators’ shepherded tourists away
from plaintiffs’ shop in exchange for payment); In re Cotton
Yarn Antitrust Litig., 505 F.3d 274, 290–91 (4th Cir. 2007)
(“[I]n cases like this one involving allegations of ‘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.’” (quoting Klehr, 521 U.S. at 189));
OLIVER V. SD-3C
Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823,
828 (11th Cir. 1999) amended in part, 211 F.3d 1224 (11th
Cir. 2000) (holding that each sale of milk a price-fixed price
constitutes a new overt act (citing Klehr, 521 U.S. at 189)).
Here, Plaintiffs allege in the FAC that they purchased SD
cards on or after March 15, 2007, which is within four years
of March 15, 2011, the date on which this lawsuit was filed.
Because Plaintiffs allege that they were injured within the
four-year limitations period, Plaintiffs have alleged sufficient
facts to show that laches does not bar their federal antitrust
Plaintiffs’ claims are also timely under the speculative
damages exception. In Zenith, Zenith’s antitrust claim was
not time-barred because, as the Supreme Court recognized, to
require Zenith to establish damages at an earlier date would
have required Zenith to present speculative evidence
regarding Zenith’s future performance. 401 U.S. at 341–42.
This evidence likely would have been rejected by the trial
Defendants argue, relying on AMF, that the alleged anti-competitive
impact caused by their combination was “permanent at initiation,” i.e. in
the early 2000s when they first allegedly combined to develop the SD
standard, and that the continued sales of SD cards at supracompetitive
prices were “but unabated inertial consequences of [their] pre-limitations
action.” 591 F.2d at 72. Therefore, Defendants argue that Plaintiffs’
lawsuit should have been filed within four years of Defendants’ initial
violation of the antitrust laws. As we explained in Samsung, “AMF is the
exception, not the rule.” Samsung, 2014 WL 1328318 at *2. In AMF,
“the unique nature of the automobile business meant that the initial refusal
to deal was an ‘irrevocable, immutable, permanent and final’ decision and
any damages that occurred during the limitations period ‘necessarily
resulted from’” the initial refusal. Id. (quoting AMF, 591 F.2d at 72).
Here, in contrast, “the license itself did not permanently and finally
control the acts of” Defendants. Id. Defendants could have ceased
charging the price-fixed price at any time.
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OLIVER V. SD-3C
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court had Zenith filed suit earlier. Id. Similarly, in this case,
Plaintiffs allege that they purchased SD cards in March 2007.
Before Plaintiffs purchased SD cards, it would have been
pure speculation whether Plaintiffs would have been harmed
by Defendants’ alleged unlawful acts. Plaintiffs should not
be penalized for failing to foresee earlier that they would
enter the market for SD cards and would therefore be harmed
by Defendants’ conduct. See Samsung, 2014 WL 1328318 at
*4 (holding that the law did not require Samsung to bring suit
where it was not clear whether Samsung would enter the
market for SD cards and “the harm to Samsung . . . was
[therefore] speculative at the time of the initial wrong”).
Thus, for the foregoing reasons, we conclude that
Plaintiffs have alleged sufficient facts in the FAC to
demonstrate that laches is not a bar to their federal antitrust
The district court also erred in dismissing Plaintiffs’ state
law claims. The district court held that “Plaintiffs’ state
antitrust claims fall outside the statute of limitations period
for all the same reasons applicable to its federal antitrust
claims.” Oliver, 2012 WL 1835740 at *3 (citing Cal. Bus. &
Prof. Code § 16750.1; Corwin v. Los Angeles Newspaper
Serv. Bureau, Inc., 4 Cal. 3d 842, 852–53, 94 Cal. Rptr. 785,
484 P.2d 953 (1971) (stating that the Cartwright Act is
interpreted consistently with the Sherman Act)). Because we
have concluded that Plaintiffs’ federal antitrust claim is
timely, we vacate the district court’s dismissal of the state law
claims and remand. On remand, the district court should
apply the California Supreme Court’s recent decision in
Aryeh v. Canon Business Solutions, Inc. 55 Cal. 4th 1185,
OLIVER V. SD-3C
1195, 151 Cal. Rptr. 3d 827, 292 P.3d 871 (2013) in
determining whether Plaintiffs’ Cartwright Act claim was
timely filed. See Samsung, 2014 WL 1328318 at *4 n.4.
In addition to asserting the statute of limitations as a
defense, Defendants raise a host of additional challenges to
Plaintiffs’ claims. Because the district court has not yet
considered these issues, we leave them to the district court to
address in the first instance on remand.
The district court’s dismissal order is reversed and the
case is remanded for further proceedings consistent with this
REVERSED AND REMANDED.
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