Rx.com, an internet drug supplier, argued that wholesalers engaged in an anticompetitive group boycott to exclude internet suppliers that would pose competition to their mail order businesses. The alleged boycott began in 2000, but the case was not filed until 2004, more than the 4 yeat statute of limitations period. The court held that the statute ordinarily begins to run when the violation occurs and impacts the plaintiff, not when the plaintiff assembles a legal theory. Quoating the U.S. Supreme Court in Rotella v. Wade, the Fifth Circuit explained: “in applying a discovery accrual rule, we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.”
Rx.com argued that the statute was tolled by fraudulent concealment and because the violation was on-going. The court rejected the first theory on the ground that it requires more than silence and denial of wrong-doing. A plaintiff must show affirmative efforts to conceal, and Rx.com failed to do so. Moreover, the evidence demonstrated that Rx.com was aware of the allegedly anticompetitive behavior in February 2000 when it complained to the FTC.
With respect to the continuing violation allegation, the Court recognized that a new example of anticompetitive conduct does trigger a new statute of limitations. But Rx.com failed to allege subsequent refusals to deal within the statutory period.
Finally, Rx.com argued that the court should have equitably tolled the statute because for much of the time it operated under receivership and without officers or a board of directors. The court held that these circumstances did not support equitable tolling because a shareholder or the receiver could have instituted the litigation.
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