DONOVAN W. FRANK, District Judge
Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge on November 22, 2002, pursuant to Defendant's Motion for Summary Judgment. For the reasons set forth below, Defendant's motion is granted.
Background
In January 1986, Northwest Airlines and Republic Airlines announced a merger. In August 1986, the two airlines merged with the approval of the U.S. Department of Transportation (DOT), despite opposition by the Antitrust Division of the U.S. Department of Justice (DOJ). The DOT did not, however, grant antitrust immunity, as the airlines requested, thus allowing for Plaintiffs' current suit.
On October 1, 1986, Republic and Northwest's operations were combined, and the assets acquired by Northwest from Republic became an integrated part of Northwest's business. Northwest and Republic were merged into a single corporate entity in November of 1986. Republic's stock was extinguished, and Republic ceased to exist.
Plaintiffs brought this class action alleging that the merger between Northwest and Republic resulted in "a substantial lessening of competition in violation of § 7 of the Clayton Act, 15 U.S.C. § 18" and a systemic practice of overcharging customers. Defendant now brings this motion for summary judgment alleging that the statute of limitations bars Plaintiffs' claims.
The Clayton Act states in pertinent part that:
No person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.
Discussion 1. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
2. Statute of Limitations
Plaintiffs' claims are brought pursuant to Section 7 of the Clayton Act, 15 U.S.C. § 18. Such claims are governed by a four-year statute of limitations. See 15 U.S.C. § 15b. The merger between Northwest and Republic took place in 1986, but the instant lawsuit was not filed until 1997, 11 years later and long past the limitations period.
In Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000), the Eighth Circuit held that the four-year statute of limitations for Clayton Act violations begin running when the defendant's actions first cause injury, typically at the time of the initial acquisition of stocks or assets. Although behavior after the initial acquisition may cause independent injury and thus restart the limitations period, id. at 1050-1051, the limitations period is not tolled or extended by virtue of the defendant "merely holding or using assets in the same manner as at the time of acquisition." Id. at 1052. In Concord Boat, the damage claimed by the plaintiffs was all a result of the defendants' market share and thus the natural result of the initial acquisition of stock; under those circumstances, the court concluded that the limitations period began running at the time of the initial acquisition.
As in Concord Boat, Plaintiffs here allege that Defendant is able to charge excessive rates for airline tickets because of the large market share held by Defendant as a result of the Northwest/Republic merger. Despite Plaintiffs' creative arguments, the record does not support Plaintiffs' contention that Defendant engaged in any "separate new overt act" of anti-competitive behavior that would trigger a restarting of the limitations period; rather, the conduct described by Plaintiffs can only be characterized as the "unabated inertial consequences" of the initial acquisition. See id. at 1052. Specifically, Plaintiffs assert that the 1993 spike in Northwest's "hub fare premium" constitutes a new overt act of anti-competition; however, Plaintiffs' own experts point to a number of factors that might have contributed to the increase in hub fare premiums, none of which involve new or different uses of the merger assets. Plaintiffs further assert that Defendant attempted to drive out low-fare carriers to frustrate competition; yet the methods Defendant allegedly employed to achieve that end are not related to Defendant's acquisition of merger assets.
Plaintiffs do assert that Defendant has used and continues to use a fleet of DC9s acquired through the merger and that some of the routes assigned to those DC9s have contributed to Defendant's ability to drive out low-fare carriers. The fact that the specific planes Defendant used were acquired through the merger does not amount to the sort of novel or different asset use described by the Eighth Circuit in Concord Boat. Rather, the Defendant acquired airplanes through the merger and has used them to transport passengers continuously since that time. The connection Plaintiffs seek to make between the merger and the anti-competitive behavior is too attenuated to justify a restarting of the limitations period.
Accordingly, the Court concludes that the holding in Concord Boat controls this matter and that the limitations period ran long before the Plaintiffs filed their claim. Plaintiffs assert a number of arguments to support their theory that the limitations period in this matter has not, in fact, elapsed; the Court does not find any of these arguments persuasive.
A. Law of the Case
Early in the course of this litigation, Defendant brought a motion to dismiss based, in part, on a claim that the limitations period had expired. The District Court granted the motion to dismiss, but that decision was not premised on the statute of limitations issue. Plaintiffs appealed, and the Eighth Circuit reversed the District Court's dismissal. See Midwestern Mach. Co. v. Northwest Airlines, Inc., 167 F.3d 439 (8th Cir. 1999). Defendant petitioned the Eighth Circuit for rehearing, relying upon the limitations argument. The Eighth Circuit denied the petition for rehearing. Plaintiffs argue that the Eighth Circuit's silence on the statute of limitations issue in the face of Defendant's repeated invocation of it constitutes an implicit rejection of Defendant's position on this issue.
The Court does not agree. The Eighth Circuit's prior decision took place while the case was in an entirely different procedural posture. At the time, there had been no discovery, and the possibility still existed for the Plaintiffs to proffer evidence that would support a tolling of the statute or, perhaps, a different date for commencement of the limitations period. Such evidence, however, has not been forthcoming. The Eighth Circuit's silence on the limitations issue, in the context of a motion to dismiss, moreover, does not preclude consideration of the limitations issue now, in the context of a summary judgment motion.
B. Concord Boat Citation
Plaintiffs allege that the Eighth Circuit expressly distinguished the situation in Concord Boat from the situation in the case at bar. In Concord Boat, the Eighth Circuit stated that: "The record indicates that the boat builders did not prove that the statute of limitations tolled or that the limitations period was extended, unlike the plaintiffs in Midwestern Machinery. . . ." Accordingly, Plaintiffs contend that the Eighth Circuit has already determined that the holding in Concord Boat does not apply to this case.
The Court does not agree. At the time the Eighth Circuit rendered its decision in Concord Boat, its review of the instant case had been limited to consideration of the motion to dismiss. At that point, the Plaintiffs had not, indeed could not have, proven anything. The Court must construe the Eighth Circuit's remark to refer to the argument of tolling made by the Plaintiffs, not to their success on that argument.
C. Speculative Damages
Plaintiffs contend that the limitations period should begin with each consumer's ticket purchase because, prior to purchasing a ticket, that consumer's damages are speculative. The Court does not agree.
First, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971), is inapposite. In Zenith Radio, the Supreme Court considered whether a plaintiff could recover damages suffered between 1959 and 1963 as a result of anti-competitive conduct that occurred before 1954. The Court concluded that the plaintiff could recover such damages because, in 1954, those damages would have been speculative. However, the type of damages being considered in Zenith Radio were vastly different from those at issue here. Specifically, in Zenith Radio, the plaintiff was seeking damages that, in 1954, would have been future damages, damages that the plaintiff was going to experience even in the wake of court intervention. In other words, even if the plaintiff had brought the action in 1954, the plaintiff would have been facing the prospect of unquantifiable future damages. In this case, however, if the Plaintiffs had brought this action in a timely fashion, the injunctive relief sought-forcing the Defendant to charge competitive rates from the date of judgment forward-would have eliminated the possibility of future damages. If the Court were to construe the scope of Zenith Radio as broadly as Plaintiffs request, it would render the statute of limitations all but meaningless. Zenith Radio, standing alone, is an insufficient rationale to toll or otherwise extend the statute of limitations.
Similarly, Plaintiffs note the distinction between consumer and competitor lawsuits drawn by the Second Circuit in Berkey Photo, Inc., v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979), in the context of antitrust actions brought pursuant to the Sherman Act. The Second Circuit noted that, at the time of the anti-competitive behavior, many potential plaintiffs might not have even existed; accordingly, the Second Circuit concluded that a consumer's cause of action under the Sherman Act does not accrue until the individual consumer makes a purchase. Plaintiffs urge the Court to adopt a similar distinction in the context of the Clayton Act. While the reasoning of the Second Circuit is logical, the Court is reluctant to extend that rationale to the context of another flavor of antitrust cause of action without guidance from a higher appellate court. This Court recognizes the profound implications of extending the Berkey Photo reasoning to the Clayton Act, the enormous expansion of potential liability. In the absence of clear authority to do so, the Court will not engage in such an expansive interpretation of the statute of limitations, particularly in light of the Eighth Circuit's concerns, voiced in Concord Boat, about rendering the statute of limitations meaningless.
For the reasons stated, the Court finds that the limitations period began to run at the time of the merger, that there is no basis for tolling or extending that limitations period, and that the limitations period has expired. Accordingly, the Court concludes that summary judgment is appropriate.
For the reasons stated, IT IS HEREBY ORDERED:
1. Defendant's Motion for Summary Judgment (Doc. No. 234) is GRANTED, and the COMPLAINT is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.