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In re Pre -Filled Propane Tank Antitrust Litigation

United States Court of Appeals, Eighth Circuit

June 22, 2018

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
v.
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

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          BENTON, Circuit Judge.

         The 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.

         I.

         Ferrellgas[1] 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 those tanks."

         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).

         On May 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.

         The 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).

         Before 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 proceed.

         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.

         The 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.

         The 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.

         Ferrellgas 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 release says:

[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.

         The 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.

         The 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.

         The 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 v. ...


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