In re: Pre -Filled Propane Tank Antitrust Litigation Mario Ortiz; Stephen Morrison; Steven Tseffos Plaintiffs - Appellants Sean Venezia; Michael S. Harvey; Gregory Ludvigsen; Arthur Hull; Alan Rockwell; James Halgerson; Thomas R. Clark; Bryce Mander; Alex Chernavsky;Robert Orr; Eric Blum; Paul Toomey Plaintiffs William Vincent Plaintiff- Appellant David McNally; Steven Lutrell; Ken Cramer Plaintiffs Kevin Dougherty Plaintiff- Appellant James Ristow; Daniel Kelleher; Richard Pedrick; Dallas May, Jr.; Tom Roberts Plaintiffs John Gilbert; Mark Stevens; Richard Paradowski Plaintiffs - Appellants Hanz De Perio Plaintiff Josh Bartholow Plaintiff - Appellant Joseph M. Haala; Scott Zuehlke; Wesley H. McCullough; Richard Sanchez; MaryLou Breed; Jerry Marshall Plaintiffs Troy Winters; Thomas Gane; Gary Snow; Nicholas Pulli; Allan Disbrow Plaintiffs - Appellants
Ferrellgas Partners, L.P. a limited partnership; Ferrellgas, L.P. a limited partnership, doing business as Blue Rhino; AmeriGas Propane, L.P. a limited partnership, doing business as AmeriGas Cylinder Exchange; UGI Corporation, a corporation; AmeriGas Propane, Inc.; AmeriGas Partners, L.P. Defendants - Appellees
Submitted: February 15, 2018
Appeals from United States District Court for the Western
District of Missouri - Kansas City
LOKEN, BENTON, and ERICKSON, Circuit Judges.
BENTON, Circuit Judge.
plaintiffs sued Ferrellgas Partners, L.P., Ferrellgas, L.P.
(collectively "Ferrellgas"), and AmeriGas Partners,
L.P., alleging antitrust violations and seeking relief under
federal and state law. The district court granted summary
judgment for Defendants. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms in part and remands in part.
Ferrellgas and AmeriGas are the
nation's largest distributors of pre-filled propane
exchange tanks, which come in a standard size. Before 2008,
Defendants filled the tanks with 17 pounds of propane. In
2008, due to rising propane prices, Defendants reduced the
amount in each tank from 17 to 15 pounds, but maintained the
same price. According to the plaintiffs, this
"effectively rais[ed] the price charged for propane in
2009, a group of plaintiffs-indirect purchasers who bought
tanks from retailers-filed a class action alleging Defendants
conspired to reduce the amount of propane in the tanks while
maintaining the price, in violation of Section 1 of the
Sherman Act and state antitrust and consumer protection laws.
In 2010, the plaintiffs and AmeriGas settled. See In re
Pre-Filled Propane Tank Mktg. & Sales Practices
Litig., 2010 WL 2008837 (W.D. Mo. May 19, 2010)
(granting preliminary approval of first amended settlement
agreement). Also in 2010, those plaintiffs again sued
Ferrellgas, settling in 2012. (This court refers to those
suits collectively as "Propane I.") On
March 27, 2014, the Federal Trade Commission issued a
complaint against Defendants-settled on January 7, 2015, by
consent orders-for conspiring to artificially inflate tank
prices. See In re Ferrellgas Partners, L.P., et al.,
2014 WL 1396496 (Mar. 27, 2014).
30, 2014, another group of indirect purchasers ("the
Ortiz plaintiffs") brought a class action
against Defendants, alleging: "Despite their
settlements, Defendants continued to conspire, and rather
than resuming competition, maintained their illegally
agreed-upon fill levels, preserving the unlawfully inflated
prices that their conspiracy had produced," and
"Defendants continued to have regular communications
regarding pricing, fill levels, and market allocation until
at least late 2010." They seek injunctive relief and
disgorgement for violations of Section 1 of the Sherman Act.
They also seek damages under the antitrust laws of 23 states
and the District of Columbia-all with statutes allowing
indirect-purchaser suits for state-antitrust damages despite
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977),
which bars those suits for federal-antitrust damages.
Ortiz class action became part of a multidistrict
proceeding that included a class action with similar
allegations by direct purchasers (who bought tanks directly
from Defendants for resale). The direct-purchaser suit seeks
federal-antitrust damages, which the district court dismissed
as time-barred. The district court explained (1) the statute
of limitations accrued on August 1, 2008, the latest
"all Defendants began selling fifteen pound tanks";
and (2) new purchases of tanks after that date did not
restart the statute of limitations. In re Pre-Filled
Propane Tank Antitrust Litig., 2015 WL 12791756, at *3
(W.D. Mo. July 2, 2015). This court-en banc-reversed, holding
that "'each sale to the plaintiff[s]' in a
price-fixing conspiracy 'starts the statutory period
running again'" and is an "overt act,
inflicting new and accumulating injury." In re
Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059,
1067-68 (8th Cir. 2017) (en banc) ("Propane En
Banc"), cert. denied, 138 S.Ct. 647
(2018), quoting Klehr v. A.O. Smith Corp., 521 U.S.
179, 189 (1997).
this court issued Propane En Banc, the district
court made several rulings in Ortiz. It dismissed as
time-barred the indirect purchasers' state-law-damages
claims. The district court ruled that, like direct purchases,
new indirect purchases did not restart the statute of
limitations. For the same reason, the district court
dismissed the indirect purchasers' federal-disgorgement
claim. But it allowed the federal-injunctive claim to
address the statute of limitations, the Ortiz
plaintiffs moved for leave to amend to add three new
subclasses asserting damages: (1) a six-year statute-of-
limitations subclass, for violations of Maine, Vermont, and
Wisconsin law; (2) a new-purchaser subclass, for violations
of Kansas antitrust law; and (3) a new-purchaser subclass,
for violations of the laws of "Illinois Brick
repealer states." The new-purchaser subclasses included
individuals who bought propane tanks for the first time after
March 27, 2011. The Ortiz plaintiffs also proposed
another federal-disgorgement claim.
district court ruled that the amendments to add the
disgorgement claim and the new-purchaser subclasses would be
futile because the claims are time-barred. According to the
district court, first-time purchases after March 27, 2011,
are irrelevant because the statute of limitations accrued in
August 2008, and-as it previously concluded-new purchases did
not restart the clock. The district court did, however, rule
that the six-year statute-of-limitations subclass raised
timely claims. Filed on October 16, 2015, the Ortiz
amended complaint retains the federal-injunctive claim, in
addition to asserting the six-year statute-of-limitations
subclass's state-law-damages claim.
district court later dismissed the federal-injunctive claim
under Fed.R.Civ.P. 12(c), concluding (1) the indirect
purchasers lack standing, and (2) the doctrine of laches bars
the claim. Meanwhile, on July 21, 2016, another group of
indirect purchasers ("the Orr plaintiffs")
not named in the Ortiz complaint sued Defendants.
The Orr complaint-consolidated into the same
multidistrict proceeding with Ortiz-includes the
federal-disgorgement claim and the new-purchaser subclasses
that the Ortiz plaintiffs tried to add to their
complaint, along with a six-year statute-of-limitations
subclass damages claim and a federal-injunctive claim.
moved for summary judgment against the Ortiz
plaintiffs, arguing the Propane I release barred the
claims of the six-year statute-of-limitations subclass. The
[T]he Releasing Persons hereby fully, finally, and forever
release, relinquish, and discharge the Released Persons from
any and all liabilities, claims, rights, suits, and causes of
action, of any kind whatsoever, that the Releasing Persons
may have or may have had . . . whether known or unknown,
suspected or unsuspected, threatened, asserted, or unasserted
. . . that were or could have been sought or alleged in the
Litigation related to the filling, purchase, sale or exchange
of Ferrellgas's 20-pound propane gas cylinders.
district court ruled that the release "does not contain
the clear language necessary to constitute a release of
future claims. Thus, the release provision only bars
assertion of claims that had accrued at the time of the
release." In re Pre-Filled Propane Tank Antitrust
Litig., 2016 WL 6963058, at *4 (W.D. Mo. Sept. 2, 2016)
(internal citation omitted). The plaintiffs argued that
"their current claims are for post In re Propane
I purchases of propane tanks, and that those purchases
could not have accrued into claims until after the purchases
were made, and thus, after the release." Id.
district disagreed, granting Ferrellgas summary judgment,
again ruling that the claims accrued only once-"in
August 2008"-and the limitations period did not restart
upon new purchases. The district court also granted summary
judgment for AmeriGas on the basis of standing. Finally, the
district court dismissed the Orr complaint based on
its rulings in Ortiz.
indirect purchasers in Ortiz and Orr
appeal. This court reviews the issues here de novo.
Propane En Banc, 860 F.3d at 1063; Montin v.
Moore, 846 F.3d 289, 293 (8th Cir. 2017); Torgerson