Petition for Writ of Certiorari — CSX Transportation, Inc., Petitioner v. Norfolk Southern Railway Company, et al.

No.

In the Supreme Court of the United States

__________

CSX TRANSPORTATION, INC.,

Petitioner,

v.

NORFOLK SOUTHERN RAILWAY COMPANY; NORFOLK &

PORTSMOUTH BELT LINE RAILROAD COMPANY,

Respondents.

___________

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the

Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

CHARLES ROTHFELD

BENJAMIN L. HATCH

Counsel of Record

ROBERT W. MCFARLAND

EVAN M. TAGER

McGuire Woods LLP

101 W. Main St., Ste. 9000 WILLIAM H. STALLINGS

Mayer Brown LLP

Norfolk, VA 23510

(757) 640-3700

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

Counsel for Petitioner

i

QUESTION PRESENTED

This Court has held that the Clayton Act statute

of limitations permits recovery of damages for injuries

arising from “conduct which constituted a continuing

violation of the Sherman Act and which inflicted continuing and accumulating harm on” the plaintiff, even

if the conduct began outside the limitations period.

Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392

U.S. 481, 502 n.15 (1968). In this case, defendants initiated a monopoly and conspiracy to restrain trade

outside the statute-of-limitations period but continued those violations into that period, when the unlawful conduct injured plaintiff.

The question presented is whether the continuation of a Sherman Act violation retriggers the statute

of limitations when the violation causes injury within

the limitations period.

ii

PARTIES TO THE PROCEEDING

The parties in the court of appeals are identified

in the case caption.

CORPORATE DISCLOSURE STATEMENT

Petitioner CSX Transportation, Inc.’s parent corporation is CSX Corporation, which owns 10% or more

of its stock.

STATEMENT OF RELATED PROCEEDINGS

There are no related proceedings in state or federal courts, or in this Court.

iii

TABLE OF CONTENTS

Page

Question Presented .....................................................i

Parties to the Proceeding .......................................... ii

Corporate Disclosure Statement .............................. ii

Statement of Related Proceedings ............................ ii

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Statutory Provision Involved ..................................... 1

Introduction ................................................................ 1

Statement ................................................................... 4

A. The antitrust violation.................................. 4

B. Proceedings below ......................................... 6

Reasons for Granting the Petition ........................... 11

I. The continuing-violation doctrine restarts

the statute of limitations when

continuation of an antitrust violation

causes new injury in the limitations

period. ................................................................ 12

II. The fourth circuit’s application of the

continuing-violation doctrine conflicts with

the holdings of other circuits and departs

from this court’s guidance. ................................ 16

A. The statute of limitations is

retriggered by inaction that causes

new injury within the limitations

period. .......................................................... 17

B. Reaffirmation of anticompetitive

conduct retriggers the statute of

limitations. .................................................. 23

iv

C. The same statute-of-limitations rule

applies to customers and to

competitors, both of which may sue

when continued implementation of an

antitrust violation causes new injury. ....... 27

III. Proper application of the continuingviolation doctrine is an issue of great

practical importance. ......................................... 30

Conclusion ................................................................ 33

v

TABLE OF AUTHORITIES

Cases

Page(s)

Berkey Photo, Inc. v. Eastman Kodak

Co.,

603 F.2d 263 (2d Cir. 1979) ......... 10, 16, 27, 28, 29

Charlotte Telecasters, Inc. v. JeffersonPilot Corp.,

546 F.2d 570 (4th Cir. 1976) .... 9, 10, 11, 19, 20, 23

Delta Theaters, Inc. v. Paramount

Pictures, Inc.,

158 F. Supp. 644 (E.D. La.1958) ................... 13, 23

Hanover Shoe, Inc. v. United Shoe

Mach. Corp.,

392 U.S. 481 (1968) ........................ 1, 12, 13, 25, 26

Kaw Valley Elec. Co-op. Co. v. Kan.

Elec. Power Co-op., Inc.,

872 F.2d 931 (10th Cir. 1989) .............................. 10

Klehr v. A.O. Smith Corp.,

521 U.S. 179 (1997) .................................. 14, 25, 26

Lawlor v. Nat’l Screen Serv. Corp.,

349 U.S. 322 (1955) .............................................. 31

In re Lower Lake Erie Iron Ore Antitrust

Litigation,

998 F.2d 1144 (3d Cir. 1993) ......... 9, 18, 19, 20, 23

vi

TABLE OF AUTHORITIES—continued

Page(s)

Minn. Mining & Mfg. Co. v. N.J. Wood

Finishing Co.,

381 U.S. 311 (1965) .............................................. 31

Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc.,

473 U.S. 614 (1985) .............................................. 31

National Souvenir Center, Inc. v.

Historic Figures, Inc.,

728 F.2d 503 (D.C. Cir. 1984) .............................. 21

Pioneer Co. v. Talon, Inc.,

462 F.2d 1106 (8th Cir. 1972) .............................. 23

Poster Exch., Inc. v. Nat’l Screen Serv.

Corp.,

517 F.2d 117 (5th Cir. 1975) ........ 15, 22, 23, 25, 26

Samsung Elecs. Co. v. Panasonic Corp.,

747 F.3d 1199 (9th Cir. 2014) .............................. 15

Toledo Mack Sales & Serv., Inc. v. Mack

Trucks, Inc.,

530 F.3d 204 (3d Cir. 2008) ................................. 20

United States v. Borden Co.,

308 U.S. 188 (1939) .............................................. 15

United States v. ITT Cont’l Baking Co.,

420 U.S. 223 (1975) .............................................. 15

vii

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Kissel,

218 U.S. 601 (1910) .............................................. 15

US Airways, Inc. v. Sabre Holdings

Corp.,

938 F.3d 43 (2d Cir. 2019) ............................. 24, 25

W. Penn Allegheny Health Sys., Inc. v.

UPMC,

627 F.3d 85 (3d Cir. 2010) . 4, 18, 20, 24, 25, 26, 31

Z Techs. Corp. v. Lubrizol Corp.,

753 F.3d 594 (6th Cir. 2014) .......................... 10, 23

Zenith Radio Corp. v. Hazeltine Res.,

Inc.,

401 U.S. 321 (1971) ................ 12, 13, 16, 25, 29, 31

Statutes

15 U.S.C. § 15b .................................................. 1, 7, 14

15 U.S.C. § 26 ........................................................ 8, 31

28 U.S.C. § 1254 .......................................................... 1

Other Authorities

Phillip Areeda & Herbert Hovenkamp,

Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶320a (2023 Supplement) .............................. 3

viii

TABLE OF AUTHORITIES—continued

Page(s)

Corrected Brief for the United States as

Amicus Curiae in Support of Plaintiffs-Appellants, Giordano v. Saks &

Co.,

No. 23-600 (2d Cir. Aug. 7, 2023),

ECF No. 89 ......................................... 12, 15, 16, 29

Statement of Interest of the United

States of America, Mizell v. Univ. of

Pittsburgh Med. Ctr.,

No. 24-cv-00016 (W.D. Pa. Sept. 30,

2024), ECF No. 50 .......................................... 20, 25

PETITION FOR A WRIT OF CERTIORARI

Petitioner CSX Transportation, Inc. (CSXT) respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1a-24a) is reported at 114 F.4th 280. The relevant

opinion of the district court (App., infra, 75a-167a) is

reported at 648 F. Supp. 3d 679.

JURISDICTION

The judgment of the court of appeals was entered

on August 29, 2024. This Court’s jurisdiction rests on

28 U.S.C. § 1254.

STATUTORY PROVISION INVOLVED

The Clayton Act, 15 U.S.C. § 15b, provides in relevant part:

Any action to enforce any cause of action under [the federal antitrust laws] shall be forever barred unless commenced within four

years after the cause of action accrued.

INTRODUCTION

The Clayton Act’s statute of limitations permits

recovery of damages stemming from “conduct which

constituted a continuing violation of the Sherman Act

and which inflicted continuing and accumulating

harm on” the plaintiff, even if that conduct began outside the limitations period. Hanover Shoe, Inc. v.

United Shoe Mach. Corp., 392 U.S. 481, 502 n.15

(1968). That is what happened in this case. The defendants, respondents here, first devised and imple-

2

mented a monopoly and a restraint-of-trade conspiracy in 2009, demanding an anticompetitive “switch

rate” for rail access to a critical marine terminal. That

scheme denied petitioner CSXT rail access to the terminal, harming CSXT by denying it business every

year that the anticompetitive rate remained in effect.

Defendants have maintained that exclusionary rate to

the present day, despite CSXT’s request that they implement a lower rate, damaging CSXT year after year.

CSXT therefore brought suit against defendants in

2018.

But the Fourth Circuit held that defendants’ continuing demand for the anticompetitive rate and continued infliction of new injury within the limitations

period was not a continuing violation, ruling that the

Clayton Act’s four-year statute of limitations began to

run in 2009 and therefore precludes a damages action

commenced in 2018. The court held this to be so for

three reasons. In its view, (1) maintaining an anticompetitive practice is “inaction” that does not retrigger

the statute of limitations, even when that practice

causes new harm in the limitations period; (2) continuously demanding the same anticompetitive rate involves “reaffirmation” of wrongful conduct, which also

does not recommence the limitations period; and

(3) although continuing to demand an anticompetitive

price from a customer restarts the limitations period

whenever the demand causes injury, continuing an

unlawful demand does not restart the limitations period when the injury is inflicted on a competitor.

The Fourth Circuit’s narrow interpretation of the

continuing-violation doctrine warrants review for several reasons:

First, the courts of appeals are in conflict, and confused, regarding each aspect of the Fourth Circuit’s

3

reasoning. There is no question that the courts are in

disarray on the contours of the continuing-violation

doctrine. The district court below itself recognized repeatedly that the governing rules are “exceedingly

complex”; that “[e]ven within one ‘type’ of case, federal

courts often differ as to the correct approach when deciding limitations issues and the application of ‘continuing violation’ theory”; and that there is a “circuit

split” on the significance of “reaffirmation.” App., infra, 89a, 107a-108a, 109a. A leading antitrust treatise

agrees that “[t]he cases are inconsistent and often hypertechnical [on application of the continuing-violation doctrine], which makes analysis of the general

problem difficult.” Phillip Areeda & Herbert

Hovenkamp, Antitrust Law: An Analysis of Antitrust

Principles and Their Application ¶320a (2023 Supplement). Accordingly, this Court’s guidance is urgently

needed.

Second, the Fourth Circuit was wrong as to each

aspect of its holding, all of which rest on wholly irrational distinctions. Purposeful “inaction” that causes

injury is no less harmful, and should be no less actionable, than is affirmative anticompetitive conduct. Reaffirmation of a harmful practice is no less injurious

than is a novel violation. And the same antitrust statute-of-limitations rule should apply to all plaintiffs,

whether customers of the defendant, competitors, or

neither.

Third, the issues here are ones of tremendous

practical significance. Questions involving application

of the continuing-violation doctrine arise with great

frequency, meaning that the confused state of the law

misleads potential plaintiffs about their time to sue,

while causing excessive and wasteful litigation. The

4

rules applied below, meanwhile, will make it impossible to seek damages for longstanding and continuing

antitrust violations—and in this case would permanently prevent an antitrust challenge to ongoing and

destructive violations of the Sherman Act. That would

frustrate vital goals of the antitrust laws: “Employing

the limitations statute * * * to immunize recent repetition or continuation of [antitrust] violations and

damages occasioned thereby not only extends the [limitations] statute beyond its purpose, but also conflicts

with the policies of vigorous enforcement of private

rights through private actions.” W. Penn Allegheny

Health Sys., Inc. v. UPMC, 627 F.3d 85, 107-108 (3d

Cir. 2010) (cleaned up).

Review by this Court accordingly is in order.

STATEMENT

A. The antitrust violation

CSXT and defendant-respondent Norfolk Southern Railway Company (NSR) are the only two railroads that operate throughout the eastern United

States and Canada. They “vigorously compete for the

domestic rail transportation of international ‘intermodal’ containers delivered to and from various East

Coast ports, including the Port of Virginia in Hampton

Roads (the ‘POV’).” App., infra, 77a-78a. Defendantrespondent Norfolk & Portsmouth Belt Line Railroad

Company (NPBL) is majority owned by NSR. CSXT is

NPBL’s minority shareholder. Id. at 6a, 76a; C.A.

App. 89-96. NPBL is a much smaller terminal railroad

that is capable of providing switching services to

CSXT at Norfolk International Terminals (NIT) in

Hampton Roads, the largest marine terminal in the

POV and one of the most important terminals for international intermodal cargo on the East Coast,

5

through which almost all major ocean carriers move

international intermodal traffic. App., infra, 5a; C.A.

App. 458-459.

Access to NIT is essential to CSXT’s business.

Ocean carriers contract with railroads to transport intermodal freight from marine terminals to inland destinations. Those carriers typically award a large percentage of their business (generally over 80%) in

multi-year contracts to a single railroad. C.A. App.

438-443. At NIT, there is no adequate substitute for

on-dock rail access—that is, for a railroad’s ability to

move its trains into the marine terminal so that containers can be loaded onto railcars either on or near

the dock. App., infra, 79a-80a; C.A. App. 487-488.

CSXT has no tracks of its own into NIT; only NSR

does. CSXT can access NIT by rail only by paying a

switching fee to NPBL, which has its own tracks and

“trackage rights” over NSR’s tracks that enable it to

deliver rail cars to the terminal. And “[u]tilizing

NPBL’s trackage rights requires CSX to pay the

NPBL ‘switch rate,’ which is the cost per train car

‘well’ that NPBL charges customers to use its

tracks/switching services.” C.A. App. 277; see App., infra, 6a. (A “well” is a railcar designed to carry vertically stacked containers; see id. at 6a n. 1.)

In 2009, NSR and NPBL set NIT’s switch rate at

$210 per “well,” an amount so high that it became economically infeasible for CSXT to access NIT once the

rate took effect in early 2010. App., infra, 6a-7a, 77a;

C.A. App. 472-473, 490. It is undisputed that, once implemented in 2010, the exclusionary NIT switch rate

continued in force over the following years and remains in effect today. App., infra, 77a.

6

The continued application of the switch rate has

had the practical effect of almost entirely precluding

CSXT from offering on-dock rail service at NIT. App.,

infra, 6a-7a, 157a; C.A. App. 482-484. CSXT is forced

to truck or “dray” containers from NIT to its railyard,

an inefficient and ineffective substitute. App., infra,

6a. As would be expected, this practical exclusion from

NIT has placed CSXT at a severe competitive disadvantage vis-a-vis NSR. App., infra, 79a; C.A. App.

444-446. This suppression of competition has allowed

NSR to charge supracompetitive prices to ocean carriers that rely on use of NIT, simultaneously injuring

rail customers and, record evidence shows, costing

CSXT hundreds of millions of dollars in lost profits.

C.A. App. 447-453; see also id. at 460-463.1

B. Proceedings below

1. CSXT brought suit against NSR and NPBL in

October 2018. Focusing on the exclusionary switch

rate, CSXT contended that defendants “committed

monopolistic antitrust violations, or unlawfully colluded with each other in restraint of trade,” to prevent

CSXT from competing at NIT. App., infra, 78a, C.A.

1 Beginning in 2015, defendants took additional steps that fur-

ther effectuated their scheme to exclude CSXT from NIT. That

year, a period of “extreme port congestion across the East Coast,”

business imperatives required CSXT “to move a small number of

trains [at NIT] out of necessity even though it would lose money

doing so.” App., infra, 120a. In addition to requiring payment of

the prohibitive rate at that time, defendants also “took affirmative steps to complicate or delay CSX’s operational use of the

track to NIT for one or more trains.” Id. at 119a; see id. at 7a.

And in 2018, defendants rebuffed CSXT’s request that they modify the exclusionary switch rate. See App., infra, 7a-8a,137a138a; C.A. App. 211-224.

.

7

App. 239. The complaint presents multiple federal antitrust claims under Sections 1 and 2 of the Sherman

Act, seeking damages and injunctive relief. App. infra,

8a, 80a.

The district court largely denied defendants’ motions to dismiss and for summary judgment on the

merits, finding that CSXT presented substantial antitrust claims. App., infra, 50a-167a. As the court explained, CSXT offered evidence that would allow a

factfinder to conclude that NSR and NPBL acted unlawfully “to preclude CSX from accessing NIT by rail.”

Id. at 77a n. 2. In reaching this conclusion, the court

expressly rejected defendants’ specific challenges “to

CSX’s ability to prevail at trial on its federal antitrust

claims.” Id. at 153a; see id. at 153a-157a.

But the court then granted defendants summary

judgment on CSXT’s damages claims, invoking the

statute of limitations. In opposing defendants’ motion,

CSXT had acknowledged that, under 15 U.S.C. § 15b,

an antitrust damages action is barred “unless commenced within four years after the cause of action accrued.” CSXT also recognized that defendants’ actionable anticompetitive conduct had started at least by

2009, more than four years before CSXT brought suit

in 2018. CSXT maintained, however, that defendants’

antitrust violations continued into the limitations period and to the present day, accruing new rights of action whenever those acts caused injury—as they do

every day that demand for the unlawful switch rate

denies CSXT business at NIT.

The district court disagreed. App., infra, 75a167a. While repeatedly noting that the law in this

area “is exceedingly complex” (id. at 88a, 101a, 107a108a) and recognizing that the elevated switch rate

8

has remained in place continuously through the limitations period, the court nevertheless held the continuing-violation doctrine inapplicable because CSXT

cannot establish “that antitrust ‘overt acts’ were committed during the limitations period.” Id. at 87a. In

reaching this conclusion, the court acknowledged that

customers of antitrust defendants may sue when they

pay anticompetitive prices that initially had been

fixed outside the limitations period. The court ruled,

however, that competitors of antitrust defendants may

not sue for damages caused by business lost as a consequence of monopolistic practices initially implemented outside the limitations period but continuously applied within it. Id. at 106a-108a. Because

CSXT was suing in its capacity as competitor of NSR,

the court held that this rule is fatal to the claim.2

In a subsequent ruling, the court held that CSXT’s

request for federal injunctive relief is barred by

15 U.S.C. § 26, which denies a court authority to grant

such relief if the defendant is “a common carrier subject to the jurisdiction” of the Surface Transportation

Board. App., infra, 62a. As a consequence, absent an

2 In this connection, the court held that the acts that occurred in

2015, when defendants both collected the elevated rate from

CSXT and delayed CSXT’s trains, could constitute overt acts that

restarted the statute of limitations, but only insofar as CSXT

sued and sought damages in its capacity as NPBL’s customer.

App., infra, 113a, 115a-116a. As for the conduct that occurred in

2018, when defendants declined to act on CSXT’s proposal to

lower the excessive switch rate, the court labeled this “purposeful

inaction” that could not qualify as an overt act that restarted the

limitations period. Id. at 140a-142a.

9

injunctive suit initiated by the United States, defendants’ continuing and indefinite maintenance of an unlawful rate is not subject to antitrust challenge at all.3

2. The court of appeals affirmed. App., infra, 1a24a.

The Fourth Circuit accurately described CSXT’s

argument as being that “‘the acts of maintaining supracompetitive prices day after day to keep a competitor out of the market are injurious overt acts that restart the limitations period each day that the high

price remains in place.’” App., infra, 15a. The court

also recognized CSXT’s reliance for this proposition on

the Third Circuit’s decision in In re Lower Lake Erie

Iron Ore Antitrust Litigation, 998 F.2d 1144 (3d Cir.

1993). See App., infra, 15a. But the Fourth Circuit rejected that argument, for three reasons.

First, relying principally on its almost 50-year-old

decision in Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 573 (4th Cir. 1976), the court

held that “mere silence or inaction from a defendant—

even though the allegedly unlawful conspiracy to exclude a plaintiff remains in effect—isn’t enough to restart the limitations period.” App., infra, 17a; see id.

at 15a (“a defendant’s ‘silence’ or failure to act after

committing an initial antitrust violation, with no

‘promise [to] act[] in the future,’ doesn’t qualify as an

act sufficient to extend the statute of limitations”). Instead, the court held that, for suit to go forward, there

must be “an affirmative act committed within the limitations period in furtherance of the conspiracy to exclude the plaintiff from the relevant market.” App., infra, 19a (emphasis added). NSR’s continued demand

3 The court also rejected CSXT’s state-law claims. App., infra,

157a-166a. Those claims are not at issue here.

10

for the anticompetitive rate, the Fourth Circuit held,

is not such an affirmative act.

Second, the Fourth Circuit stated that Charlotte

Telecasters “tracks with the understanding of other

circuits,” citing and quoting decisions of the Sixth and

Tenth Circuits holding that “‘reaffirmations of a previous act’” do not restart the limitations period. App.,

infra, 17a (quoting Z Techs. Corp. v. Lubrizol Corp.,

753 F.3d 594, 600 (6th Cir. 2014)); see ibid. (quoting

Kaw Valley Elec. Co-op. Co. v. Kan. Elec. Power Coop., Inc., 872 F.2d 931, 934-35 (10th Cir. 1989) (addressing “‘reaffirmation[s] of a previous [pre-limitations] refusal’” to deal)).

Third, the Fourth Circuit agreed with the district

court that the customer of a monopolist has a cause of

action that “accrue[s] to the plaintiff each time it paid

the inflated price within the limitations period,” even

if the defendant “formed [the] monopoly enabling it to

overcharge its customers ‘several decades’ before the

customer-plaintiff filed its action.” App., infra, 19a.

But the court rejected CSXT’s argument that the same

rule applies to competitors of an antitrust defendant

that are injured by a violation commenced outside the

limitations period. Relying on Berkey Photo, Inc. v.

Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979), the

court reasoned: “‘The differing treatment between

these two types of claims is grounded in the concept

that, unlike an excluded rival who is injured as soon

as the exclusion begins, a customer is not injured until

a sale occurs, and it suffers a new and accumulating

injury each time a subsequent supracompetitive price

is paid.’” App., infra, 20a.4

4 Like the district court, the Fourth Circuit held that defendants’

11

Accordingly, the Fourth Circuit held that the action here is barred by the statute of limitations “even

accepting that maintaining an exclusionary price is

the ‘functional equivalent of affirmatively posting a

price.’” App., infra, 20a.

REASONS FOR GRANTING THE PETITION

As the case comes to this Court, it must be assumed that the switch rate first promulgated by defendants in 2009 is a violation of the Sherman Act,

implemented for the purpose—and maintained yearin and year-out with the effect—of injuring CSXT.

That violation concededly has continued to the present, causing new harm to CSXT every year by effectively precluding it from competing for business at

NIT. But the Fourth Circuit’s statute-of-limitations

holding will allow that unlawful conduct to continue

without Sherman Act challenge—forever.

Unsurprisingly, other courts of appeals would

have resolved this question differently. More generally, the decision below also contributes to confusion

and uncertainty in the circuits about the nature of the

continuing-violation doctrine. And as the United

States recently noted when criticizing reasoning similar to that used below, “[t]his analysis risks preventing recovery in damages suits when conspiracies last

longer than four years,” which “is ‘contrary to the congressional purpose that private actions serve as a bulwark of antitrust enforcement and that the antitrust

demand for the anticompetitive switch rate in 2015 could retrigger the limitations period only as to claims brought by CSXT in

its capacity as a customer. App., infra, 21a-22a. As for defendants’ failure to lower the rate in response to CSXT’s request in

2018, the court of appeals held that, under Charlotte Telecasters,

“inaction or silence isn’t enough.” Id. at 21a n. 9.

12

laws fully protect the victims of the forbidden practices as well as the public.’” Corrected Brief for the

United States as Amicus Curiae in Support of Plaintiffs-Appellants at 32-33, Giordano v. Saks & Co., No.

23-600 (2d Cir. Aug. 7, 2023), ECF No. 89 (U.S.

Giordano Br.) (quoting Zenith Radio Corp. v. Hazeltine Res., Inc., 401 U.S. 321, 340 (1971) (cleaned up)).

This Court should grant review and set aside the

Fourth Circuit’s decision.

I.

THE CONTINUING-VIOLATION DOCTRINE

RESTARTS THE STATUTE OF LIMITATIONS WHEN CONTINUATION OF AN ANTITRUST VIOLATION CAUSES NEW INJURY IN THE LIMITATIONS PERIOD.

This case turns on the meaning of the continuingviolation doctrine that the Court has recognized as

governing the antitrust statute of limitations. Although the Court has not yet had occasion to address

the doctrine in the precise factual circumstances presented by this case, it has stated the principle that

controls: Injury caused by an antitrust violation beginning outside the limitations period but causing

new harm in that period restarts the statute of limitations.

The seminal decision on the doctrine—Hanover

Shoe—both defined the principle and would appear to

control this case. There, defendant United Shoe Machinery refused to sell manufacturing equipment to

plaintiff Hanover Shoe, instead adopting a policy of

only renting the equipment—an allegedly unlawful

policy that caused Hanover Shoe to spend far more for

the equipment than it would have through purchases.

392 U.S. at 483-84. Although Hanover Shoe first felt

the harmful effects of this policy in 1912, it did not

13

bring suit until 1955, after suffering damage for more

than forty years. Id. at 502 n.15.

But the Court held that Hanover Shoe’s claim was

not time-barred. “We are not dealing with a violation

which, if it occurs at all, must occur within some specific and limited time span,” the Court explained. 392

U.S. at 502 n.15. “Rather, we are dealing with conduct” that “inflicted continuing and accumulating

harm on Hanover”—the unchanging demand that

Hanover Shoe submit to a lease instead of buying the

desired equipment outright. Ibid. As the Court concluded, “[a]lthough Hanover could have sued in 1912

for the injury then being inflicted, it was equally entitled to sue in 1955.” Ibid.

In subsequent years, the Court has articulated the

doctrine in similar terms. In Zenith Radio Corp. v. Hazeltine Research, Inc., the Court explained that, “[i]n

the context of a continuing conspiracy to violate the

antitrust laws,” “if a plaintiff feels the adverse impact

of an antitrust conspiracy on a particular date, a cause

of action immediately accrues to him to recover all

damages incurred by that date and all provable damages that will flow in the future from the acts of the

conspirators on that date.” 401 U.S. 321, 338, 339

(1971). The Court left no doubt what it meant by this

principle, offering as an illustration Judge J. Skelly

Wright’s ruling in Delta Theaters, Inc. v. Paramount

Pictures, Inc., 158 F. Supp. 644 (E.D. La.1958). That

case involved a theater that lost profits when conspirators kept it from exhibiting first-run films. As

Judge Wright explained, “[i]n the case of successive

damages suffered day by day from a continuing conspiracy, the statute begins to run on each day’s damage

as it occurs.” Id. at 649 (emphasis added); see Zenith,

401 U.S. at 338 (citing Delta Theaters).

14

The Court elaborated on the principle yet again in

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997). Although that case involved a RICO rather than an antitrust suit, the Court addressed “the ordinary Clayton

Act rule,” explaining:

Antitrust law provides that, in the case of a

continuing violation, say, a price-fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years,

each overt act that is part of the violation and

that injures the plaintiff, e.g., each sale to the

plaintiff, starts the statutory period running

again, regardless of the plaintiff’s knowledge

of the alleged illegality at much earlier times.

Id. at 189 (cleaned up; emphasis added). In reaching

this conclusion, the Court distinguished between acts

that cause harm once, even when that harm persists

or compounds over time; and situations in which a

continuing anticompetitive policy causes new harm to

the plaintiff in subsequent years.

In the first situation, “the plaintiff cannot use an

independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate

acts that took place outside the limitations period.”

521 U.S. at 190. In that circumstance (as in Klehr itself), the plaintiffs “have not shown how any new act

could have caused them harm over and above the

harm that the earlier acts caused.” Ibid. (emphasis

added). The second situation, in contrast, is that of the

“‘continuing violation,’” where “each act is part of the

violation that injures the plaintiff.” Id. at 189 (cleaned

up). That is when the plaintiff’s “complaint is based

on continuing antitrust behavior, not merely the continuing damage [that the plaintiff] feels from a single

15

day’s monopoly” in the year of the monopoly’s creation. Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 517

F.2d 117, 125 (5th Cir. 1975) (emphasis added). By

drawing this distinction, the continuing-violation doctrine “is meant to differentiate those cases where a

continuing violation is ongoing—and an antitrust suit

can therefore be maintained—from those where all of

the harm occurred at the time of the initial violation.”

Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d

1199, 1202 (9th Cir. 2014).

As thus stated, the continuing-violation doctrine

rests on a principle that the Court has applied for well

over a century. As Justice Holmes wrote for the Court,

addressing the continuing impact of an antitrust conspiracy, “[i]t is true that the unlawful agreement satisfies the definition of the crime, but it does not exhaust it.” United States v. Kissel, 218 U.S. 601, 607

(1910). For that reason, although entry into a “contract” to restrain trade is “instantaneous,” a conspiracy to restrain trade “contemplates bringing to pass a

continuous result” and “the conspiracy continues up to

the time of abandonment or success.” Id. at 607-608.

See, e.g., United States v. Borden Co., 308 U.S. 188,

202 (1939) (antitrust conspiracy “is in effect renewed

during each day of its continuance”); cf. United States

v. ITT Cont’l Baking Co., 420 U.S. 223, 232-33 (1975)

(acquirer of a company in violation of an FTC order is

subject to daily rather than one-time fine because

“[a]ny anticompetitive effect of an acquisition continues as long as the assets are retained, and the violator

could undo or minimize any such effect by disposing of

the assets at any time after the initial transaction”).

Thus, as the United States recently noted, antitrust

decisions consistently recognize “the distinction between instantaneous and ongoing violations.” U.S.

Giordano Br. at 29.

16

And the United States also has explained that this

rule is grounded in fundamental antitrust policy. It is

essential that antitrust violations remain actionable

when continuing violations cause renewed injury over

time. Otherwise, “plaintiffs forever los[e] their right to

recover damages four years after the conspiracy was

formed. This [outcome] risks preventing recovery in

damages suits when conspiracies last longer than four

years,” which is “‘contrary to the congressional purpose that private actions serve as a bulwark of antitrust enforcement and that the antitrust laws fully

protect the victims of the forbidden practices as well

as the public.’” U.S. Giordano Br. at 32-33 (quoting

Zenith Radio, 401 U.S. at 340 (cleaned up)); cf. Berkey

Photo, 603 F.2d at 296 (“[I]t would undercut enforcement of the Sherman Act to hold that, if a monopolist

merely retains its illicit market control for four years

after its last anticompetitive action, it may charge an

exorbitant price until its power is eviscerated in an

appropriate suit for equitable relief.”).

II. THE FOURTH CIRCUIT’S APPLICATION

OF THE CONTINUING-VIOLATION DOCTRINE CONFLICTS WITH THE HOLDINGS

OF OTHER CIRCUITS AND DEPARTS

FROM THIS COURT’S GUIDANCE.

A finding that this case involves a continuing violation that retriggers the statute of limitations whenever demand for the elevated switch rate causes injury to CSXT therefore seems to follow directly from

this Court’s instruction. After all, the district court determined that CSXT had adduced sufficient evidence

of an antitrust violation to preclude summary judgment for defendants on the merits. It is undisputed

that the violation—in particular, demand for the anticompetitive switch rate—continued into the statute-

17

of-limitations period. And that violation certainly

caused new harm in the limitations period, keeping

CSXT from entering into profitable contracts during

that time.

But the Fourth Circuit disagreed. It identified

three considerations that motivated its rejection of the

doctrine: (1) that the antitrust violation here inflicted

injury through inaction rather than action; (2) that

the misconduct was merely a “reaffirmation” of prior

wrongful activity; and (3) that the plaintiff is a competitor rather than a customer of the antitrust defendant. Each rationale, however, conflicts with, or rests

on a misunderstanding of, the decisions of other

courts of appeals. And each is wrong. This Court

should resolve the manifest confusion in the lower

courts demonstrated by the Fourth Circuit’s ruling.

A. The statute of limitations is retriggered

by inaction that causes new injury

within the limitations period.

1. First, the court of appeals saw a crucial distinction between injury inflicted by intentional inaction

and that caused by affirmative conduct. It held that

“mere silence or inaction from a defendant—even

though the allegedly unlawful conspiracy to exclude a

plaintiff remains in effect—isn’t enough to restart the

limitations period.” App., infra, 17a. Instead, the court

held that, for suit to go forward, there must be “an affirmative act committed within the limitations period

in furtherance of the conspiracy to exclude the plaintiff from the relevant market.” Id. at 19a (emphasis

added). NSR’s continued demand for the anticompetitive rate, the Fourth Circuit held, is not such an affirmative act.

18

This holding, however, is flatly inconsistent with

the Third Circuit’s decision in Lower Lake Erie. There,

plaintiffs brought suit in 1982, alleging that railroad

companies had conspired to stop competitors from entering the market for land transport of iron ore

shipped across the Great Lakes. 998 F.2d at 1151. The

defendants accomplished this anticompetitive goal,

plaintiffs alleged, by “artificially inflat[ing]” the dockhandling rates charged to these new competitors (id.

at 1172), “refusing to lease [their new competitors]

dock property suitable for the shipment of iron ore,

and * * * overcharging the companies to use the railroads to ship ore.” W. Penn Allegheny, 627 F.3d at 107

(describing Lower Lake Erie). These actions effectively

foreclosed the competitors’ entry into the market. See

Lower Lake Erie, 998 F.2d at 1153-54 (“plaintiffs

claimed injury due to the railroads’ refusal to permit

them entry into the iron ore unloading business”).

The defendant railroad companies argued that the

plaintiffs’ 1982 lawsuit was time-barred because the

conspiracy started in the 1950s. Of particular relevance here, the defendants argued that there were no

“injury-causing overt acts” during the limitations period—defendants’ decision not to do business with

plaintiffs and to set artificially high prices having

been made before the limitations period started.

Lower Lake Erie, 998 F.2d at 1172. But the Third Circuit rejected this distinction between action and inaction, explaining: “This argument fails to recognize

that certain conspiracies, such as boycotts, operate

through inaction.” Ibid. Thus, “[t]he purposeful nature of the inaction—here an ongoing refusal to sell or

lease—obviously constitutes an injurious act, although perhaps not an overt one in the commonly-understood sense.” Ibid. That was sufficient to restart

the limitations period.

19

Lower Lake Erie is materially identical to this

suit. In both cases, defendants unlawfully raised the

price of a facility that competitors needed to enter the

market—there, increasing dock fees and railroad

shipping rates; here, imposing an excessive switch

rate for access to NIT. In both cases, the exclusionary

prices first were set more than four years before suit

was brought but continued unchanged into the limitations period. In both cases, the defendants priced their

competitors out of conducting business in the relevant

market, causing injury in the limitations period. And

in both cases, the nature of the actionable conduct was

the same—just as the Lower Lake Erie conspiracy

could “be viewed as a continuing series of acts upon

which successive causes of action may accrue” (998

F.2d at 1173 (cleaned up)), so the anticompetitive conduct here caused injury and generated a right of action every day that NSR and NPBL maintained the

harm-causing supracompetitive switch rate.

This conflict between the Third and Fourth Circuits is not fairly disputable. It was implicitly recognized by the court below, which noted CSXT’s reliance

on Lower Lake Erie but made no attempt to distinguish the Third Circuit’s decision, instead pointing to

“our [i.e., the Fourth Circuit’s] precedent holding otherwise”—namely, Charlotte Telecasters. App., infra,

15a. That statement amounts to an acknowledgement

that the Fourth Circuit’s rule differs from that of the

Third Circuit. And the conflict was expressly acknowledged by the district court below, which recognized

that Lower Lake Erie “offers CSX a favorable interpretation * * * in support of CSX’s limitations and damages theories.” App., infra, 94a. But that court likewise did not seek to distinguish Lower Lake Erie, in-

20

stead outright disagreeing with it. See ibid. Consequently, the conflict is clear and dispositive; this case

would have come out differently in the Third Circuit.5

2. The Fourth Circuit is on the wrong side of this

disagreement. Although that court was clear in its insistence that “[t]he decision to keep [an] * * * exclusionary [requirement] in place [doesn’t] trigger the

[continuing-violation] doctrine” (App., infra, 4a), the

court very notably made no real attempt to justify that

rule beyond the invocation of its prior decision in

Charlotte Telecasters—which itself did not explain its

reason for distinguishing between action and inaction.

5 Although the district court suggested that the Third Circuit

subsequently backed away from Lower Lake Erie (see App., infra,

94a-97a), that is incorrect. To the contrary, in West Penn Allegheny the Third Circuit forcefully reaffirmed Lower Lake Erie.

The court of appeals there described the facts of Lower Lake Erie

in some detail, recounted Lower Lake Erie’s holding that the

plaintiffs’ “claims were timely because the [defendants’] exclusionary conduct * * * had continued into the limitations period,”

and approved that holding even though “the acts that occurred

within the limitations period were reaffirmations of decisions

originally made outside the limitations period.” 627 F.3d at 107.

Nothing in this decision disavowed Lower Lake Erie in any respect. See also Toledo Mack Sales & Serv., Inc. v. Mack Trucks,

Inc., 530 F.3d 204, 218 (3d Cir. 2008) (“‘a conspiracy’s refusal to

deal, which began outside the limitations period, may be viewed

as a continuing series of acts upon which successive causes of

action may accrue’”) (quoting Lower Lake Erie, 998 F.2d at 1173).

Indeed, the United States very recently cited and relied upon

Lower Lake Erie, nowhere suggesting that the decision has been

called into question. See Statement of Interest of the United

States of America at 21, 22, Mizell v. Univ. of Pittsburgh Med.

Ctr., No. 24-cv-00016 (W.D. Pa. Sept. 30, 2024), ECF No. 50 (U.S.

Mizell Statement).

21

And that rationale is not apparent. As a matter of

logic and antitrust policy, the Third Circuit was correct that certain antitrust violations achieve their

goals and inflict new injury, day after day, through inaction.

In fact, it is often difficult—and sometimes simply

impossible—even to distinguish in a meaningful sense

between action and inaction in this context. This case

is an example. Defendants’ anticompetitive rate governed operations at NIT during the limitations period,

controlling conduct there anew every day. Defendants

maintained that rate purposefully; they concededly

could have been changed it but instead chose to leave

it in place. See App., infra, 4a, 104a. That being so,

there is no logical reason, and the court below did not

explain, why this policy was insufficiently “active” to

restart liability—or why “active” collection of excessive charges pursuant to a policy formulated in 2009

would have retriggered the limitations period, but

purposefully continuing to demand that rate for its inevitable exclusionary effect did not.

Other decisions illustrate similar ways in which

continuation of a policy for its anticompetitive effects

will retrigger the statute of limitations. For example,

in National Souvenir Center, Inc. v. Historic Figures,

Inc., 728 F.2d 503 (D.C. Cir. 1984), a right of action

continued to accrue during the running of a lease that

had “continuing allegedly ‘anticompetitive’ effect[s].”

Id. at 514. As Judge Wald there wrote for the D.C. Circuit, “the ‘overt act’ requirement may be satisfied

merely by the parties continuing to maintain contractual relationships that directly affect competition in

the tied product market.” Id. at 510. But that conduct

was no more “active” than defendants’ conduct here.

22

The confusion in the courts is likewise suggested

by the Fourth Circuit’s treatment of Poster Exchange,

supra. There, the Fifth Circuit held that a refusal-todeal could be a continuing violation and remanded for

a determination whether the refusal to deal in that

case continued into the limitations period. 517 F.2d at

127-29. The Fourth Circuit took Poster Exchange to

stand for the proposition that a continuing violation is

established only when there was “an affirmative act

committed within the limitations period in furtherance of the conspiracy to exclude the plaintiff from the

relevant market.” App., infra, 19a.

But that is not so. Although the Fifth Circuit did

indeed say that the plaintiff “is obliged to demonstrate

some act of the defendants during the limitations period foreclosing or interfering with its access to supplies” (517 F.2d at 128), the court’s focus was not on

the affirmative nature of the act, but on the need for

assurance that the plaintiff actually “has been refused

access to standard accessories by [the defendants]

during th[e limitations] period.” Ibid. Because “a mere

absence of dealing” does not establish an antitrust violation at all, an “act or word” of the defendants reaffirming the refusal to deal during the limitations period was necessary to establish that the antitrust violation was the cause of the plaintiff’s injury. Ibid. In

this case, however, there is no need for any such additional act or word because the continuation of the misconduct is established beyond dispute by maintenance

of the switch rate into the limitations period. The

court below misunderstood Poster Exchange.

Consequently, the line drawn below between injury-causing action and inaction creates a conflict in

the circuits. It is confusing. It makes no logical sense.

23

And it allows for the continued infliction of new competitive injury every year, indefinitely.6

B. Reaffirmation of anticompetitive conduct retriggers the statute of limitations.

1. The Fourth Circuit also held that defendants’

continued demand for an anticompetitive rate was not

a continuing violation on the ground that “‘reaffirmations of a previous act’” do not restart the limitations

period. App., infra, 17a (quoting Z Techs. Corp. v.

Lubrizol Corp., 753 F.3d 594, 600 (6th Cir. 2014)). The

Fourth Circuit plainly understood the “no-reaffirmation” decisions to be central to its holding, specifically

quoting “no-reaffirmation” language from the Sixth

and Tenth Circuits as a “[s]ee, e.g.,” to establish that

the Fourth Circuit’s “holding in Charlotte Telecasters

tracks with the understanding of other circuits.” Ibid.

The Fourth Circuit doubled down on its “inaction” analysis

when it held that defendants’ decision to maintain the elevated

rate in 2018, even in the face of CSXT’s request for a change, is

not actionable because “inaction or silence isn’t enough.” App.,

infra, 21a n. 9. And on that, as well as on the court of appeals’

related dismissal of defendants’ other anticompetitive acts

within the limitations period, the Fourth Circuit misunderstood

the significance of an overt act for statute-of-limitations purposes. Although the Fourth Circuit seemed to believe that damages are recoverable only if they flow directly from in-limitationsperiod overt acts (see id. at 19a-22a), other courts have expressly

rejected the notion that a plaintiff is required to “tie its damages

to specific acts” within the limitations period, finding it sufficient

that “the plaintiff * * * support its allegation that the defendant

had continued during the period in suit to refuse to deal.” Lower

Lake Erie, 998 F.2d at 1173 (cleaned up); see Pioneer Co. v.

Talon, Inc., 462 F.2d 1106, 1109 (8th Cir. 1972) (allowing the

plaintiff to recover “all damages suffered within the statutory period” and not just those “flowing” directly from the overt acts in

that period (citing Delta Theaters, 158 F. Supp. 644)).

6

24

And in fact, there doubtless is a close relationship between the concepts of inaction and reaffirmation, with

continued implementation of the same illegal policy

containing elements both of inactivity (i.e., failure to

change the policy) and of reaffirmation (i.e., applying

the policy over and over again). That seems to be what

the Fourth Circuit meant when it said that, even accepting that “maintaining an exclusionary price is the

‘functional equivalent of affirmatively posting a

price,’” CSXT’s claim still “fails because it hasn’t

shown that such conduct inflicted new harm causing

new injury to it within the limitations period.” Id. at

20a. So rejection of the no-reaffirmation rule would

lead to a different outcome here.

But this holding also contributes to a conflict in

the circuits. Here again, the existence of the conflict is

not debatable. The district court in this case expressly

recognized the conflict, noting a “circuit split” on

“whether a ‘reaffirmation’ of a prior bad act should restart the limitations period.” App., infra, 101a. So has

the Third Circuit, which acknowledged but rejected

“authority” from the Sixth Circuit finding reaffirmation insufficient to retrigger the limitations period.

See W. Penn. Allegheny, 627 F.3d at 106.

And those courts’ belief that a conflict on this

point exists is clearly correct. As noted above, the

court below quoted decisions of the Sixth and Tenth

Circuits applying a reaffirmation limit on the continuing-violation doctrine. App., infra, 17a (citing cases).

The Second Circuit also has stated that rule. See US

Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43, 68

(2d Cir. 2019) (the defendant’s injurious act “must be

a new and independent act that is not merely a reaffirmation of a previous act”).

25

In contrast, the Third and Fifth Circuits have

made clear that reaffirmation will restart the statute

of limitations. See W. Penn Allegheny, 627 F.3d at 10608 (rejecting as “inconsistent with controlling precedent” the argument that a cause of action does not accrue based on acts occurring “within the limitations

period, if those acts are merely ‘reaffirmations’ of acts

done or decisions made outside the limitations period”); Poster Exch., 517 F.2d at 127 (observing that in

Zenith this Court “conspicuous[ly]” relied on cases “eschewing the requirement of acts different in kind to

set up a later accruing cause of action”). Indeed, the

United States recently noted that “[s]ome courts” have

held that reaffirmation will not “trigger a new limitations period under the continuing-violation doctrine”

(citing the Fourth Circuit’s decision in this case and

the Second Circuit’s in US Airways), but “[t]he Third

Circuit * * * has rejected that rule.” U.S. Mizell Statement, at 22 note 5 (citing W. Penn Allegheny, 627 F.3d

at 106).

2. On this point as well, the Fourth Circuit is on

the wrong side of the conflict: The proposition that reaffirmation (and consequent continued implementation) of illegal acts does not restart the limitations period fails to withstand scrutiny. The court below did

not even attempt to provide a rationale for its reaffirmation rule.7 But there are many reasons why that

rule is insupportable as a matter of precedent, antitrust policy, and logic.

For one thing, as the Third Circuit noted, disregarding “‘reaffirmations’ of acts done or decisions

7 Nor does the rule find substantial support in the decisions of

the Second, Sixth, and Eighth Circuits, which simply recite “noreaffirmation” language without explanation or any attempt to

reconcile it with Hanover Shoe or Klehr.

26

made outside the limitations period” cannot be

squared with this Court’s decisions. W. Penn Allegheny, 627 F.3d at 106. Most obviously, in Hanover

Shoe itself the challenged conduct constituted a continuing violation “even though the injurious acts that

took place within the limitations period * * * were

simply manifestations of the lease-only policy, which

had been established in 1912, well before the start of

the limitations period.” Id. at 107. Similarly, Klehr

recognized that sales made pursuant to an old pricefixing conspiracy restart the limitations period even

though such sales, almost by definition, rest on reaffirmation of the original wrongful conduct. Ibid. (citing Klehr, 521 U.S. at 189-90).

As for antitrust policy, as already noted,

“‘[e]mploying the limitations statute * * * to immunize

recent repetition or continuation of violations and

damages occasioned thereby not only extends the statute beyond its purpose, but also conflicts with the policies of vigorous enforcement of private rights through

private actions.’” W. Penn Allegheny, 627 F.3d at 108

(quoting Poster Exch., 517 F.2d at 127-28). The point

seems obvious: There is no logical reason why antitrust violators should get a pass simply because they

unimaginatively implement the same wrongful policy

repeatedly or continuously (“reaffirming” it), while

more innovative wrongdoers are subject to liability.

So on this point as well, the line drawn below contributes to a growing conflict in the circuits. It is not

supported by any articulated (or articulable) rationale. And it unapologetically allows for the continued infliction of new injury, year-after-year, indefinitely.

27

C. The same statute-of-limitations rule applies to customers and to competitors,

both of which may sue when continued

implementation of an antitrust violation

causes new injury.

Finally, the decision below turned crucially on the

Fourth Circuit’s view that different statute-of-limitations rules apply to customers than to competitors of

antitrust violators. The court agreed that the customer of a monopolist does have a cause of action that

“accrue[s] to the plaintiff each time” it is injured

“within the limitations period,” even if the defendant

“formed [the] monopoly enabling it to overcharge its

customers ‘several decades’ before the customer-plaintiff filed its action.” App., infra, 19a. But the court

ruled that a different standard applies to competitors

of an antitrust defendant, holding that a competitor’s

cause of action accrues once and for all when the monopoly or conspiracy is first formulated. Relying on

Berkey Photo, supra, the court reasoned: “‘The differing treatment between these two types of claims is

grounded in the concept that, unlike an excluded rival

who is injured as soon as the exclusion begins, a customer is not injured until a sale occurs, and it suffers

a new and accumulating injury each time a subsequent supracompetitive price is paid.’” App., infra,

20a.

This embrace of disparate rules for customers and

competitors rests on a misunderstanding of Berkey

Photo, however—and makes no sense. In Berkey

Photo, the Second Circuit simply recognized that

causes of action may accrue at different times for dif-

28

ferent plaintiffs, depending upon the particular plaintiff’s factual circumstances.8 But Berkey Photo does

not suggest that different limitations rules categorically should apply to customers and to competitors

when those categories of victims suffer injuries at the

same time. In fact, customers typically do suffer injury as soon as an antitrust scheme begins (as in cases

of monopoly or price-fixing, where defendants rarely

hold off implementing their inflated prices), while

competitors sometimes do not.9 There accordingly is

no basis for allowing customers to sue every time they

suffer injury from an antitrust violation, even many

years after the illegal scheme began—as all courts, including the Fourth Circuit, permit—while denying

competitors the right to sue every time they suffer new

injury from a continuing scheme.

The United States recently made just this point,

explaining why Berkey Photo does not state different

8 Berkey Photo addressed a particular type of violation, predatory

pricing. In that kind of case, as the Second Circuit explained, the

competitor generally is injured as soon as the scheme begins, as

the predator’s lower prices will immediately take business from

its competitors. 603 F.2d at 295. Customers, meanwhile, actually

will be benefitted by predatory pricing when the scheme begins,

“for they receive the temporary boon of artificially low prices.”

Ibid. Customers will be injured only later, when the predatorypricing scheme succeeds and they start paying inflated prices. In

such a case, competitors may have a right of action earlier than

do customers because they suffer injury earlier.

9 It is not correct that a competitor necessarily suffers injury at

the moment that an anticompetitive practice is formulated.

Here, for example, CSXT was injured when the anticompetitive

rate kept it from competing for customer contracts at NIT. Depending on when competition for specific multi-year contracts occurred, that might not have happened until some time after defendants first devised and posted the excessive rate.

29

statute-of-limitations rules for different categories of

plaintiff:

While Berkey Photo noted that competitors’

monopolization claims might accrue at different times than consumers’ monopolization

claims, [603 F.2d] at 295, that is not because

the different types of plaintiffs are subject to

“different accrual rules[.]” * * * The same accrual rule (Zenith Radio’s) applies to both

types of claims, yet factual differences can

lead to different outcomes: Competitors are often “injured” as soon as “the dominant firm

commences” an anticompetitive policy, but

sometimes consumers are not injured right

away—only after the firm excludes competitors and “boost[s] its price to excessive levels.”

Berkey Photo, 603 F.2d at 295 (citing Zenith

Radio, 401 U.S. at 339). * * * If plaintiffs suffer antitrust injury during the limitations period due to overt acts committed pursuant to

a continuing violation, the plaintiffs may

bring suit, whether they are “consumers,”

“competitors,” or neither.

U.S. Giordano Brief at 30-31.

Here, in its role as competitor, CSXT is in precisely the same position as is a customer. It may (or

may not) have first suffered competitive injury shortly

after implementation of the anticompetitive switch

rate, just as the customer of a price-fixer may (or may

not) first suffer injury shortly after prices are fixed.

But CSXT suffers new injury from continued implementation of the excessive rate every time denial of

on-dock rail access at NIT denies it business, just as

the price-fixer’s customer suffers new injury every

time it pays fixed prices into the future.

30

The peculiarity of the Fourth Circuit’s distinction

is especially acute in this case, given that CSXT was

both a customer and a competitor of the defendants

(competing for shipping customers with NSR and purchasing switching services from NPBL). The court below offered no reason why CSXT would be permitted

to sue for excessive payments had it paid the exorbitant switch rate on particular dates years after the

rate was first formulated, but may not sue for lost

profits because that rate was so high that the charge

altogether precluded CSXT from competing for contracts at NIT on those same dates in those same years.

In short, the Fourth Circuit’s ruling rests on a

misapplication of Second Circuit doctrine. And more

fundamentally, that holding is confused, confusing,

and inconsistent with basic antitrust policy. In this

area, as with the other points where the court below

went astray, there is no basis for a rule that allows the

perpetual infliction of injury on certain disfavored categories of antitrust victims.

III. PROPER APPLICATION OF THE CONTINUING-VIOLATION DOCTRINE IS AN ISSUE

OF GREAT PRACTICAL IMPORTANCE.

The issue presented in this petition is a matter of

significant importance that warrants this Court’s attention, for several reasons.

First, as the number of reported cases addressing

the continuing-violation doctrine demonstrates, questions about the doctrine arise with great frequency.

Clarity in the rules governing the doctrine is essential

to avoid wasteful litigation, misunderstandings about

lawsuit deadlines, inconsistent outcomes, and forum

shopping.

31

Second, the goals of the antitrust laws require an

approach that permits plaintiffs to challenge anticompetitive practices that continue into the limitations

period. As the Third Circuit has explained, a rule like

that applied below would “improperly transform the

limitations statute from one of repose to one of continued immunity. For according to [the Fourth Circuit’s

approach], a plaintiff who suffers [damage from a continuing antitrust violation] is barred not only from

proving violations and damages more than four years

old, but is barred forever from complaining of [the continuation] of the unlawful conduct.” That outcome

“conflicts with the policies of vigorous enforcement of

private rights through private actions.” W. Penn Allegheny, 627 F.3d at 107-08 (citation omitted); see also

Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 329

(1955) (rejecting theory that “would in effect confer on

[defendants] a partial immunity from civil liability for

future violations” of the antitrust laws).

And on that last point, the possibility of injunctive

relief is not a sufficient curative. As a general matter,

“[t]he treble-damages provision wielded by the private

litigant is a chief tool in the antitrust enforcement

scheme” (Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 635 (1985)), with Congress recognizing a strong “public interest in vigilant

enforcement of the antitrust laws through the instrumentality of the private treble-damage action.” Lawlor, 349 U.S. at 329. And in any event, the district

court’s reading of 15 U.S.C. § 26 makes injunctive relief at the request of a private party unavailable in

this case. A possible equitable action by the government would not fill that gap; it was “the congressional

purpose that private actions serve ‘as a bulwark of antitrust enforcement.’” Zenith, 401 U.S. at 340; see

Minn. Mining & Mfg. Co. v. N.J. Wood Finishing Co.,

32

381 U.S. 311, 318 (1965) (“Congress has expressed its

belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust

laws.”).

Third, this case itself has a significant practical

impact. There are hundreds of millions of dollars already at stake between the parties (see page 6, supra),

and—with no way for CSXT to bring an antitrust challenge to defendants’ continuing Sherman Act violation—the amount of business lost by CSXT will

greatly compound over time. And that violation also

will more broadly degrade competitive conditions at

one of the most important ports on the East Coast, injuring not just CSXT but the public interest by causing higher prices for rail customers as NSR remains

free from competitive constraints at NIT.10

In all, the Fourth Circuit has stated a rule that

departs from the approach taken by other courts; that

confuses the law in other respects; that embraces irrational and internally inconsistent distinctions; and

that leaves significant antitrust violations in place, indefinitely. This Court should determine whether that

rule is the proper one.

10 It is not only CSXT saying this. The Virginia Port Authority

asked NPBL as long ago as 2018 to set a competitive switch rate,

noting that the “lack of proper access to NIT by CSX” puts the

Commonwealth at a “competitive disadvantage” and “may lead

to * * * businesses seeking alternative Ports and states” through

which to ship. C.A. App. 509.

33

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

BENJAMIN L. HATCH

CHARLES ROTHFELD

ROBERT W. MCFARLAND

Counsel of Record

McGuire Woods LLP

EVAN M. TAGER

101 W. Main St., Ste. 9000 WILLIAM H. STALLINGS

Norfolk, VA 23510

Mayer Brown LLP

(757) 640-3700

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

Counsel for Petitioners

NOVEMBER 2024