II. THE COMPLAINT, FILED LESS THAN FOUR YEARS AFTER S&S INSTITUTED SHAM LITIGATION, IS TIMELY UNDER 15 U.S.C. 15b The four-year statute of limitations under 15 U.S.C. 15b “accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971).

Plaintiffs Have Adequately Alleged a Continuing Violation Of the many reasons Defendants’ statute of limitations argument fails, perhaps the simplest is this: Defendants’ unlawful conduct continued beyond September 8, 2010. Although, absent tolling, 15 U.S.C. § 15b subjects federal antitrust claims to a four-year statute of limitations—“an exception to this time limit exists for continuing violations.” 64 As this 60 Conmar Corp. v. Mitsui & Co. (U.S.A.), Inc., 858 F.2d 499, 504 (9th Cir. 1988) (emphasis added).

For Counts One and Two, the applicable limitations period is four years. 15 U.S.C. § 15b; Cal. Bus. & Prof. Code § 17208.

The statute of limitations for federal antitrust actions is four (4) years. See 15 U.S.C. § 15b (1982). Defendants move to dismiss the § 1 and § 2 claims contending that the plaintiff has failed to allege overt acts resulting in injury to plaintiff within the four years preceding the initiation of this lawsuit.

I. PLAINTIFFS’ ANTITRUST CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS Federal antitrust claims are subject to a four-year statute of limitations. 15 U.S.C. § 15b. A cause of action accrues when the defendant commits an act that injures the plaintiff’s business. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-39 (1971). While a plaintiff Case3:10-cv-03825-JSW Document43 Filed10/04/11 Page12 of 21 6 DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FAC C-10-03825-JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 may allege a continuing violation—that is, “one in which the plaintiff’s interests are repeatedly invaded and a cause of action arises each time the plaintiff is injured,” the plaintiff must still allege some overt act by the defendant within the limitations period that restarts the statute of limitations.

The statute of limitations for private antitrust claims is four years. 15 U.S.C. § 15b (an action “shall be forever barred unless commenced within four years after the cause of action accrued”). The Cartwright Act also has a four year statute of limitations.

Because Mr. Quarry did not file his complaint until December 16, 2014, more than four years after his cause of action accrued, his antitrust claim is barred by the four-year statute of limitations applicable to private antitrust claims. 15 U.S.C. § 15b. II.

I. HAP’s Monopolization, Tortious Interference, and Lost Profits Claims Are Time Barred. HAP’s claims for monopolization, tortious interference, and lost profits are facially time barred under the four-year statute of limitations for antitrust claims2 and the three-year statute of limitations for tortious interference claims.3 The statute of limitations began running on HAP’s antitrust claims when HAP was 2 15 U.S.C. § 15b; MICH. ANTITRUST REFORM ACT § 445.

See supra at 5–7. 3 The doctrine of fraudulent concealment comes into play here because the statute of limitations on an antitrust claim is four years, 15 U.S.C. § 15b, and the first claim was filed on November 24, 2004; but (unlike the class plaintiffs) Plaintiffs seek damages all the way back to the beginning of 1994. 4 Plaintiffs concede these are contested facts.

A. THE ANTITRUST CLAIMS Claims for violations of the Sherman Act must be brought within four years of the accrual of the asserted cause of action. 15 U.S.C. § 15b. Antitrust actions accrue, and the limitations period begins to run, "when a defendant commmits an act that injures a plaintiff" s business."