Petition for Writ of Certiorari — General Dynamics Corporation, et al., Petitioners v. Susan Scharpf

Supreme Court briefSep 11, 2025

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APPENDICES

APPENDIX A: Opinion of the United States

Court of Appeals for the Fourth Circuit

(May 9, 2025) ............................................................ 1a

APPENDIX B: Opinion of the United States

District Court for the Eastern District of

Virginia (April 19, 2024) ......................................... 36a

APPENDIX C: Order of the United States

Court of Appeals for the Fourth Circuit

Denying Rehearing (June 13, 2025)....................... 56a

APPENDIX A

No. 24-1465

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUSAN SCHARPF; ANTHONY D’ARMIENTO, on

behalf of themselves and all others similarly situated,

Plaintiffs - Appellants,

GENERAL DYNAMICS CORP.; BATH IRON

WORKS CORP.; ELECTRIC BOAT CORP.; GENERAL DYNAMICS INFORMATION TECHNOLOGY,

INC.; HUNTINGTON INGALLS INDUSTRIES,

INC.; NEWPORT NEWS SHIPBUILDING AND DRY

DOCK CO.; INGALLS SHIPBUILDING, INC.; HII

MISSION TECHNOLOGIES CORP.; HII FLEET

SUPPORT GROUP LLC; MARINETTE MARINE

CORPORATION; BOLLINGER SHIPYARDS, LLC;

GIBBS & COX, INC.; SERCO, INC.; CACI INTERNATIONAL, INC.; THE COLUMBIA GROUP, INC.;

THOR SOLUTIONS, LLC; TRIDENTIS, LLC;

FASTSTREAM RECRUITMENT LTD.,

Defendants - Appellees.

______________________

COMMITTEE TO SUPPORT THE ANTITRUST

LAWS,

Amicus Supporting Appellants.

Argued: January 29, 2025

Decided: May 9, 2025

Before DIAZ, Chief Judge, and WYNN and BENJAMIN, Circuit Judges.

Reversed and remanded by published opinion. Judge

Wynn wrote the opinion, in which Judge Benjamin

joined. Chief Judge Diaz wrote a dissenting opinion.

WYNN, Circuit Judge:

Plaintiffs Anthony D’Armiento and Susan Scharpf

brought a putative class action against the nation’s

largest shipbuilders and naval-engineering consultancies, alleging a wide-ranging “no-poach” conspiracy in which the companies formed a “gentlemen’s

agreement” not to recruit each other’s employees in

an effort to drive down wages. As no named Plaintiff

has worked for any Defendant since 2013, the district

court dismissed the case as barred by the Sherman

Act’s four-year statute of limitations. The court concluded that a “non-ink-to-paper” agreement cannot

constitute an affirmative act of fraudulent concealment, so it does not toll the limitations period.

We hold that neither logic nor our precedent supports distinguishing between defendants who destroy

evidence of their conspiracy and defendants who carefully avoid creating evidence in the first place. Accordingly, we reverse the dismissal of this matter.

We accept Plaintiffs’ well-pleaded allegations as

true throughout this summary of the facts. See Wag

More Dogs, Corp. v. Cozart, 680 F.3d 359, 364–65 (4th

Cir. 2012).

Defendants comprise many of the largest shipbuilders and naval-engineering consultancies in the

country. Roughly 40% of naval engineers work for

shipbuilders, and most shipbuilders perform contract

work for the federal government to build the U.S.

public fleet. The largest shipbuilders—Defendants

General Dynamics and Huntington Ingalls—own the

five major private U.S. shipyards that build warships. Another 40% of naval engineers work for naval-engineering consultancies, which also often work

as contractors for the federal government.

Throughout the class period, 2000 to the present

day, “industry insiders acknowledged that there was

an industry-wide shortage of naval engineers.” J.A.

86. 1 So one might expect to see “a high degree of labor

mobility” in which Defendants “would have competed

aggressively to lure away each other’s employees by

offering better salaries and benefits.” J.A. 86. But in

reality, “naval engineers generally spend their entire

careers without being solicited by a rival firm,” “Defendants maintained relatively uniform compensation

structures,” and salaries were “far below what would

be available in a competitive market.” J.A. 44, 86, 92.

Plaintiffs allege that this lack of mobility has been

deliberately manufactured through a no-poach

agreement among Defendant firms that “prohibits any

Defendant from actively recruiting naval engineers

from other Defendants,” allowing them to suppress

wages through a lack of competition. J.A. 74.

Plaintiffs D’Armiento and Scharpf worked as naval

engineers for Defendants from 2002 to 2004 and 2007

to 2013 respectively. Plaintiffs learned of the nopoach agreement in April 2023 following an “investigation [that] uncovered direct evidence of the conspiracy, gathered from eyewitness industry participants.” J.A. 75.

Six months later, Plaintiffs brought this putative

antitrust class action against nineteen shipbuilders

and naval-engineering consultancies and one reCitations to the “J.A.” refer to the Joint Appendix filed by the

parties in this appeal.

cruitment agency. They allege that, although its “origins are obscure,” the conspiracy began as early as

1980 and was ubiquitous by 2000, and that it continues to this day. J.A. 79. Plaintiffs further allege

that “[e]ach Engineering Defendant in this action is

tied to the conspiracy through the testimony of at

least one witness who verified the party’s adherence

to the industry’s no-poach regime.” J.A. 74.

Plaintiffs interviewed multiple industry insiders,

quoted anonymously in the Complaint, who acknowledged the existence of the no-poach agreement and

provided some details about how it worked. The firms

had a “gentlemen’s agreement” that they would not

actively “‘recruit people’ from competitors.” J.A. 75–

76; accord J.A. 76 (“I never recruited anyone actively

from a competitor.”); J.A. 77 (executive at Defendant

Gibbs & Cox recounting “that he overheard a colleague say to another colleague in regard to recruiting

a potential candidate, ‘He works for [the firm now

called Serco], we can’t do that’”); J.A. 78 (manager involved in recruitment for Defendant Thor Solutions

stating that “we would not poach from” companies

with which Thor worked, including from Defendant

Alion). A recruiter from Defendant Serco explained

that his company maintained a “do not hire list” of allied companies from which he was not permitted to

recruit. J.A. 75.

And while it was acceptable to offer a position to an

engineer from a Defendant firm who applied on their

own initiative, interviewees explained how the nopoach agreement was still enforced even in those situations. For example, an executive explained that if

their company’s employee applied to and was accepted by Defendant Gibbs & Cox, that company would

“call me and say, ‘We didn’t poach him.’” J.A. 77. And

a naval engineer said that, after he applied to work at

other firms, “he was required to specify that he had

independently pursued the opportunity and not been

solicited.” J.A. 75.

Plaintiffs allege that Defendants concealed this

conspiracy by “carefully avoiding” the creation of any

documentation of its existence and by referring to it

obliquely. J.A. 96. Several of the interviewees described the conspiracy as a “gentlemen’s agreement.”

J.A. 74, 78. They also described the agreement as

“non-ink-to-paper,” J.A. 46, 78, and one said that

“[they] don’t put that in writing. You’d be hard

pressed to find that in writing,” J.A. 46; see J.A. 76

(agreement was “never reduced to writing”). Instead,

the agreement was “passed on only as verbal instructions from executives to managers.” J.A. 76. One recruiter stated that companies asking for recruitment

help “would often use coded language to discuss the

set of competitors whose employees the hiring manager did not want to recruit, referring to those companies as ‘friends’ or explaining that the company ‘had a

relationship’ with these competitors.” J.A. 46. Plaintiffs allege the agreement was enforced “through private phone calls between high-level executives and

unofficial retribution.” J.A. 101.

The district court granted Defendants’ Rule

12(b)(6) motion in April 2024, finding that Plaintiffs’

claims were time-barred by the Sherman Act’s fouryear statute of limitations. 2 After a review of Fourth

Circuit fraudulent-concealment case law, the court

concluded that Plaintiffs could “not succeed on their

That is, all Defendants moved to dismiss save Faststream Recruitment Ltd. Faststream did not appear in the district court

prior to the motion to dismiss. Plaintiffs later “filed a notice of

settlement with Faststream” and moved for approval of the settlement. Scharpf v. Gen. Dynamics Corp., No. 1:23-cv-1372, 2024

WL 1704665, at *1 n.1 (E.D. Va. Apr. 19, 2024).

claim that, by the creation of and participation in a

secret conspiracy, the Defendants committed an act of

concealment that tolls the statute of limitations” because Defendants’ alleged non-ink-to-paper agreement was “simply . . . [a] failure[] to admit wrongdoing.” Scharpf v. Gen. Dynamics Corp., No. 1:23-cv1372, 2024 WL 1704665, at *8 (E.D. Va. Apr. 19,

2024). Plaintiffs timely appealed.

II.

We review de novo a district court’s decision to

grant a motion to dismiss under Rule 12(b)(6). Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 545 (4th

Cir. 2019). We must “accept as true all of the factual

allegations contained in the complaint.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations

omitted). Most pleadings must satisfy Rule 8’s standard of a “short and plain statement of the claim.” Fed.

R. Civ. P. 8(a)(2). To survive a motion for dismiss, the

complaint must “state[] a plausible claim for relief”

that “permit[s] the court to infer more than the mere

possibility of misconduct” based upon “its judicial experience and common sense.” Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009).

The normal pleading standards are heightened for

allegations of fraudulent concealment as Federal

Rule of Civil Procedure 9(b) states that parties must

allege “fraud . . . with particularity.” However, we apply a “relaxed Rule 9(b) standard” in “cases involving

alleged fraud by omission or concealment”—such as

allegations of a non-ink-to- paper agreement—

because “it is well-nigh impossible for plaintiffs to

plead all the necessary facts with particularity, given

that those facts will often be in the sole possession of

the defendant.” Corder v. Antero Res. Corp., 57 F.4th

384, 402 (4th Cir. 2023). And we have held that a

court considering a fraudulent-concealment case

“should hesitate to dismiss a complaint under Rule

9(b) if the court is satisfied (1) that the defendant has

been made aware of the particular circumstances for

which [it] will have to prepare a defense at trial, and

(2) that plaintiff has substantial prediscovery evidence

of those facts.” Edmonson, 922 F.3d at 553 (quoting

Harrison v. Westinghouse Savannah River Co., 176

F.3d 776, 784 (4th Cir. 1999)).

So, a plaintiff must allege an affirmative act of

concealment under a relaxed (but not eliminated)

Rule 9(b) particularity standard.

III.

The Sherman Act has a four-year statute of limitations. 15 U.S.C. § 15b. But if a defendant engages in

fraudulent concealment, the limitations period does

not begin to run until the plaintiff discovers the violation. Supermarket of Marlinton, Inc. v. Meadow Gold

Dairies, Inc., 71 F.3d 119, 122 (4th Cir. 1995). To toll

a limitations period through fraudulent concealment,

“a plaintiff must demonstrate: (1) the party pleading

the statute of limitations fraudulently concealed facts

that are the basis of the plaintiff’s claim, and (2) the

plaintiff failed to discover those facts within the statutory period, despite (3) the exercise of due diligence.”

Id.

In this Circuit, a plaintiff satisfies the first element by “provid[ing] evidence of affirmative acts of

concealment” by the defendants. Id. at 126. We hold

that an agreement that is kept “non-ink-to-paper” to

avoid detection can qualify as an affirmative act of

concealment.

Our conclusion helps to preserve the careful balance between statutes of limitation and the doctrine

of fraudulent concealment. Statutes of limitation are

designed to “protect defendants from stale or fraudulent claims.” Id. at 125 (citing Wood v. Carpenter, 101

U.S. 135, 139 (1879)). But, more than a century ago,

the Supreme Court noted that it could not “believe

that Congress intended to give immunity to those who

for the period named in the statute might be able to

conceal their fraudulent action from the knowledge of

the [victim].” Exploration Co. v. United States, 247

U.S. 435, 449 (1918). The Supreme Court has therefore instructed “that the fraudulent concealment tolling doctrine is to be ‘read into every federal statute of

limitations,’” including that in the Sherman Act. Marlinton, 71 F.3d at 122 (quoting Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)). This tolling doctrine

is designed “to prevent a defendant from ‘concealing a

fraud . . . until’ the defendant ‘could plead the statute

of limitations to protect it.’” Id. (quoting Bailey v.

Glover, 88 U.S. (21 Wall.) 342, 349 (1874)). This balance would be “subverted . . . if defendants [were]

permitted to use statutes of limitation to shield

themselves from liability for unlawful conduct by

keeping that conduct secret.” Id. at 125.

The Supreme Court’s adoption of the fraudulentconcealment tolling doctrine left open the question of

how, exactly, to evaluate when a defendant has engaged in such fraudulent concealment. In a series of

decisions in the 1980s and 1990s, the circuits coalesced around three standards: the separate-andapart standard, the self-concealing standard, and the

affirmative-acts standard. Id. at 122.

Under the separate-and-apart standard, the plaintiffs must show that the defendants engaged in

fraudulent concealment separate and apart from the

antitrust conspiracy. Id. Under the self-concealing

standard, “a plaintiff . . . merely [must] prov[e] that a

self- concealing antitrust violation has occurred.” 3 Id.

Finally, under the intermediate affirmative-acts

standard, a plaintiff “must prove that the defendants

affirmatively acted to conceal their antitrust violations, but the plaintiff’s proof may include acts of concealment involved in the antitrust violation itself.” Id.

Today, the circuits that have spoken on the issue

have largely adopted the affirmative-acts standard. 4

Our cornerstone case of Marlinton followed this

majority approach and supports our conclusion that

unwritten agreements can constitute fraudulent conJudge Higginbotham provided a helpful hypothetical to explain

the self-concealing standard in Texas v. Allan Construction Co.,

851 F.2d 1526 (5th Cir. 1988). “Sell[ing] a fake vase as if it were

an antique” is a self-concealing violation because “[d]eception is

an essential element of the wrong, and one that is not intended

merely to cover up the wrong itself.” Id. at 1529. By contrast,

“steal[ing] a vase” and “replac[ing] it with a worthless replica is

not self-concealing” because “[t]he wrong is the theft of the vase;

the replacement is an act separate from the wrong itself and

aimed only at concealing the fact that the real vase has been

stolen.” Id. at 1529–30.

The First, Fifth, Sixth, and Ninth Circuits use the affirmativeacts standard. See Berkson v. Del Monte Corp., 743 F.2d 53, 56

(1st Cir. 1984); Allan Constr. Co., 851 F.2d at 1531–32; Pinney

Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472

(6th Cir. 1988); Conmar Corp. v. Mitsui & Co. (U.S.A.), 858 F.2d

499, 505 (9th Cir. 1988). In the Second, Eleventh, and D.C. Circuits, a plaintiff can either show an affirmative act of concealment or that the defendant committed a self-concealing violation. See New York v. Hendrickson Bros., 840 F.2d 1065, 1083–

85 (2d Cir. 1988); Foudy v. Indian River Cnty. Sheriff's Off., 845

F.3d 1117, 1124 (11th Cir. 2017); Riddell v. Riddell Wash. Corp.,

866 F.2d 1480, 1491–92 (D.C. Cir. 1989). In contrast, by an evenly divided en banc panel, the Tenth Circuit affirmed a district

court that applied the separate-and-apart standard. See Colorado ex rel. Woodard v. W. Paving Const. Co., 630 F. Supp. 206,

208, 210 (D. Colo. 1986), aff’d by an equally divided court, 841

F.2d 1025 (10th Cir. 1988) (en banc) (per curiam).

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cealment. In Marlinton, large dairies allegedly conspired to fix milk prices. Supermarkets sued the dairies years later, pointing to testimony from a dairy

official given under a grant of immunity in a prior

criminal case. Id. at 121. That official testified to secret meetings with officials from other dairies to fix

prices, explaining that these meetings were purposefully “conducted away from the office” and that he

would fill out his expense reports “in such a manner”

that nobody would learn of the meetings. Id. Applying

the “separate-and-apart” standard of fraudulent concealment, the district court granted the defendants

summary judgment. Id.

We disagreed. We first rejected the separate-andapart standard as too stringent and indeterminate.

Id. at 124–26. We also found the self-concealing

standard inapplicable because concealment is not a

necessary element of a price-fixing violation, although we didn’t rule it out for future cases. Id. at

123.

We instead adopted the intermediate affirmativeacts standard. Id. at 126. As the paradigmatic example of that standard, we repeatedly cited a Fifth Circuit case which held that “‘secret agreements and

covert price-setting sessions’ . . . . could count as proof

of fraudulent concealment.” Texas v. Allan Constr.

Co., 851 F.2d 1526, 1531–32 (5th Cir. 1988) (quoting

Greenhaw v. Lubbock Cnty. Beverage Ass’n, 721 F.2d

1019, 1030 (5th Cir. 1983)); see Marlinton, 71 F.3d at

125. And we rejected the argument that fraudulent

concealment must include an act of commission rather than omission, making clear that conspirators

who “are careful not to write down evidence of their

antitrust violations in the first place” can be held accountable. Marlinton, 71 F.3d at 125 (emphasis added). So, although we remanded the case to the district

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court to apply the affirmative-acts standard to the

facts in the first instance, Marlinton’s reasoning

makes clear that this standard can include secret,

non-ink-to-paper agreements. 5

Indeed, district courts in our Circuit have relied on

Marlinton to deny motions to dismiss on facts similar

to those here. In Jien v. Perdue Farms, Inc., No. 1:19cv-2521, 2020 WL 5544183, at *13 (D. Md. Sept. 16,

2020), the plaintiffs alleged that the defendants held

“off the books” “secret meetings” where they manipulated wage data. The district court found that “[a]ll of

these alleged techniques plausibly constitute affirmative acts of concealment.” Id. And in Pro Slab, Inc. v.

Argos USA LLC, No. 2:17-cv-3185, 2019 WL 4544086,

at *14 (D.S.C. Sept. 19, 2019), the plaintiffs alleged

that the defendants created “anticompetitive agreements during secret meetings” and “misrepresented

market conditions” in price-increase letters to customers. Id. The district court found that these allegations amounted to more than a mere “failure to admit

to wrongdoing.” Id. (quoting Boland v. Consol. Multiple Listing Serv., Inc., 868 F. Supp. 2d 506, 518

(D.S.C. 2011)).

Nevertheless, Defendants flatly claim that “a secret agreement . . . is not an affirmative act of concealment.” Response Br. at 35. This is both inconsistent with Marlinton’s reasoning and a bad rule on

its own merits. Defendants’ blanket rule would “encourage[] [wrongdoers] to take advantage of the limitations period to commit secret illegal conduct withOn remand, the district court denied a motion to dismiss in

which the defendants argued that the case was time-barred, but

later granted summary judgment for lack of antitrust standing.

Supermarket of Marlinton, Inc. v. Valley Rich Dairy, 161 F.3d 3,

1998 WL 610648, at *1 n.5, *2 (4th Cir. 1998) (per curiam) (unpublished table decision).

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out penalty.” Edmonson, 922 F.3d at 549 (quoting

Marlinton, 71 F.3d at 125). It would also lead to illogical results, as there is “no valid reason to differentiate between those conspiracies in which the conspirators document their antitrust violations and subsequently shred those documents, from those in which

the conspirators are careful not to write down evidence of their antitrust violations in the first place.”

Marlinton, 71 F.3d at 125. Surely, Congress did not

intend for us to reward conspirators who are savvy

enough to avoid taking notes while punishing those

who take notes but later destroy them. This would

unjustly “benefit those defendants who were cunning

enough to commit their crimes initially in such a

manner that there was no need for further concealment.” Id.

Our remaining case law is not to the contrary. Defendants claim that Pocahontas Supreme Coal Co. v.

Bethlehem Steel Corp., 828 F.2d 211 (4th Cir. 1987),

a case that predates Marlinton, held that even “lying

about a secret conspiracy does not suffice” for fraudulent concealment. Response Br. at 33. But Pocahontas’s holding is ambiguous, as we later recognized

in Marlinton, and is too thin a reed on which to

rest such a counterintuitive contention.

The plaintiff in Pocahontas, a coal-mining company, asked a defendant company “why [that defendant]

refused to accept certain deliveries of coal and why

the price paid for delivered coal was so low.” Pocahontas, 828 F.2d at 218. The defendant “responded that

the delivery quotas were due to a railroad strike . . .

and that the pricing simply was the maximum allowable.” Id. More than four years later, the plaintiff

sued that company and several others involved in

coal mining and production, alleging that they had

created “interlocking directorates” to shoulder the

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plaintiff out of the market. Id. at 215.

We held that the plaintiff’s fraudulentconcealment allegations were insufficient. We concluded that “an alleged failure to own up to illegal

conduct upon this sort of timid inquiry” did not constitute fraudulent concealment, as “[i]t can hardly be

imagined that illegal activities would ever be so gratuitously revealed. ‘Fraudulent concealment’ implies

conduct more affirmatively directed at deflecting litigation . . . and ‘due diligence’ contemplates more than

the unpursued inquiry allegedly made by [the plaintiff].” Id. at 218–19.

But as Marlinton later noted, it is unclear “to what

extent [Pocahontas] was based on the fact that the

plaintiff had constructive notice of the antitrust violations or had failed to provide evidence of due diligence.” Marlinton, 71 F.3d at 122. It also seems Pocahontas concluded that the plaintiff’s question was so

“timid”—i.e., so vague and indirect in probing the allegedly illegal acts—that the defendant’s answer was

not fraudulent at all and therefore was not “affirmatively directed at deflecting litigation.” Pocahontas,

828 F.2d at 218–19; see GO Comput., Inc. v. Microsoft

Corp., 508 F.3d 170, 179 (4th Cir. 2007) (quoting this

portion of Pocahontas for the proposition that

“wrongdoing is not a straightforward matter of fact,

and it is not fraud to deny it”).

Given these ambiguities, Marlinton determined

that Pocahontas “did not expressly adopt any [fraudulent concealment] standard[]” at all, and instead

“simply examined the allegations of the complaint

and concluded that the plaintiff had failed to allege

facts sufficient to invoke the fraudulent concealment

doctrine.” Marlinton, 71 F.3d at 122. Pocahontas

therefore should not be read to establish a general

standard for fraudulent concealment—much less a

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blanket rule that secret, unwritten conspiracies are

legally insufficient to toll a statute of limitations. See

also Detrick v. Panalpina, Inc., 108 F.3d 529, 542 (4th

Cir. 1997) (“As the Marlinton court noted, the Pocahontas court did not employ any of the standards outlined in Marlinton, which of course, is not surprising

given that neither party argued for the adoption of

any standard, and the case law had not been developed on that issue in the Fourth Circuit.”).

Defendants also repeatedly cite Robertson v. Sea

Pines Real Estate Cos., 679 F.3d 278 (4th Cir. 2012),

which affirmed Boland, 868 F. Supp. 2d 506, but that

case is of no more help to them than Pocahontas.

There, the plaintiffs alleged that they were injured by

enforcement of the defendant real estate brokerages’

“by-laws, policies, and procedures.” 2d Am. Compl. ¶

1, Boland, 868 F. Supp. 2d 506, ECF No. 22, 2010 WL

1787986. The plaintiffs also alleged that the defendants fraudulently concealed their conspiracy, as the

defendants “never told [them] that they were fixing

the prices of real-estate services . . . . [and] the

[d]efendants . . . [met] secretly [and gave] pretextual

reasons for costs of real- estate services.” Id. ¶ 64.

The district court dismissed the case, concluding that

the [p]laintiffs’ allegations lack the particularity required by Rule 9 and, therefore, are legally insufficient to state a claim of fraudulent

concealment. The cases are clear that a plaintiff must allege affirmative acts of concealment

or affirmative steps to mislead; here, the Court

believes that the [p]laintiffs’ allegations

amount to no more than a failure to admit to

wrongdoing, which does not suffice.

Boland, 868 F. Supp. 2d at 518. This sparse reasoning leaves us uncertain whether the district court

dismissed the complaint because:

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• the

plaintiffs’

particularized,

allegations

were

non-

• mere failure to inform is legally insufficient,

• the plaintiffs’ argument—that the defend-

ants fraudulently concealed their “secret[]”

agreement in “by-laws”—was fundamentally

implausible, or

• secret meetings are insufficient as a matter of

law (as Defendants now maintain).

We affirmed in a footnote with one sentence of

reasoning: “The district court properly concluded

that [the] plaintiffs failed to ‘allege affirmative acts of

concealment or affirmative steps to mislead’ and that

[the] ‘plaintiffs’ allegations amount to no more than a

failure to admit to wrongdoing, which does not suffice.’” Robertson, 679 F.3d at 291 n.2 (quoting Boland,

868 F. Supp. 2d at 518) (citing Pocahontas, 828 F.2d

at 218–19). Given the uncertainty surrounding the

district court’s reasoning, it is unclear exactly what

Robertson determined that the district court had

“properly concluded.” So we don’t agree that Robertson sets out a general rule that secret meetings are

insufficient to constitute fraudulent concealment as a

matter of law—particularly because such a rule would

conflict with Marlinton’s reasoning, which preceded

Robertson and which Robertson did not cite.

In sum, the doctrine of fraudulent concealment is

designed to prevent conspirators who take steps to

avoid detection from hiding behind the statute of limitations. See Edmonson, 922 F.3d at 547 (“We do not

believe that Congress intended to allow individuals

and entities that conceal their [conspiracies] to reap

the benefit of the statute of limitations as a defense.”).

Neither logic nor our case law support Defendants’

proposition that conspirators who cunningly avoid

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creating evidence of their conspiracy escape this general rule. On the contrary, we reaffirm Marlinton’s

reasoning, which makes clear that such a conspirator

commits an affirmative act of fraudulent concealment.

As no named Plaintiff has worked for Defendants

since 2013, Plaintiffs must adequately plead affirmative acts of fraudulent concealment to avoid their

claims being time-barred. We conclude that, under a

relaxed Rule 9(b) standard, Plaintiffs have pleaded

affirmative acts of fraudulent concealment with particularity.

Plaintiffs adequately allege that Defendants engaged in affirmative acts by creating an illicit nopoach agreement that they deliberately kept non-inkto-paper. The complaint quotes multiple industry insiders who acknowledge the existence of the no-poach

agreement. For example, one witness “confirmed the

existence of a ‘gentlemen’s agreement’ among these

firms that ‘you didn’t recruit people’ from competitors.” J.A. 75-76. Plaintiffs claim that “at least one

witness” verified each engineering Defendant’s “adherence to the industry’s no-poach regime.” J.A. 74.

Plaintiffs further allege that Defendants have

“carefully avoid[ed] putting anything in writing” to

“conceal[] their unlawful conduct,” J.A. 96, and that

the agreement was “never reduced to writing and

passed on only as verbal instructions from executives

to managers,” J.A. 76. Plaintiffs’ interviewees support

the proposition that Defendants carefully avoided

putting their alleged no-poach agreement in writing.

An in-house recruiter for a Defendant “confirmed the

existence of a ‘non-ink-to-paper’ agreement between

Defendants that ‘we would not poach from each oth-

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er.’” J.A. 46. “Managers with hiring authority repeatedly and independently confirmed the existence of an

industry-wide ‘gentlemen’s agreement[.]’” J.A. 74.

And one “industry insider” stated that Defendants

“don’t put [their agreement] in writing. You’d be hard

pressed to find that in writing.” J.A. 46.

These allegations meet Rule 9(b)’s particularity requirement, which is relaxed but not eliminated in

“cases involving alleged fraud by omission or concealment” like this one. Corder, 57 F.4th at 402. Defendants have been “made aware” that they will have to

defend against allegations of an unwritten agreement

not to poach each other’s employees unless those employees affirmatively seek employment. Edmonson,

922 F.3d at 553. The agreement allegedly “began at

least by the early 1980s [and] expanded to industrywide proportions by at least 2000.” J.A. 74. Defendants allegedly avoided detection by transmitting the

agreement orally from executives to managers and by

referring to it obliquely. Defendants took these steps

“to evade detection or accountability.” J.A. 96. Furthermore, although Plaintiffs are a bit coy about how

many interviews they conducted, their interviewees—

who consistently and independently describe a gentlemen’s or non- ink-to-paper no-poach agreement—

show that Plaintiffs have obtained “substantial prediscovery evidence” of Defendants’ alleged affirmative

acts of concealment. Edmonson, 922 F.3d at 553. Rather than pleading based on information and belief,

the bulk of Plaintiffs’ allegations are quotes from interviews with industry insiders. These interviews

strengthen the plausibility of Plaintiffs’ allegations.

Our colleague in dissent argues that we effectively

apply the self-concealing standard by allowing Plaintiffs’ claims to proceed. We respectfully disagree. A

self- concealing violation occurs only when “deception

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or concealment is a necessary element of the antitrust

violation.” Marlinton, 71 F.3d at 123 (emphasis

added). For example, “price-fixing is not inevitably

deceptive or concealing” because “the deceptive aspect

of price-fixing is intended solely to cover up the illegal

act[;] price fixing is not by its very nature concealed.”

Id. (quotation omitted). Here, the alleged illegal act is

a no-poach conspiracy, which—just like a price-fixing

conspiracy—is not inherently deceptive or concealed.

Although it would be unwise, Defendants could openly refuse to hire each other’s employees.

Instead, Defendants allegedly covered up their nopoach conspiracy by, among other things, “carefully

avoiding putting anything in writing” and using coded

language to refer to it. J.A. 96. That meets the affirmative-acts standard, which allows “the plaintiff’s

proof [to] include acts of concealment involved in the

antitrust violation itself.” Marlinton, 71 F.3d at 122.

Even if a plaintiff adequately alleges affirmative

acts, such as a non-ink-to-paper agreement, the

plaintiff must still allege facts sufficient to infer that

the defendants performed the acts with the intent to

prevent or deceive others from discovering their

scheme. Otherwise the plaintiff will have failed to

show that the defendant “fraudulently concealed facts

that are the basis of the plaintiff’s claim,” Marlinton,

71 F.3d at 122 (emphasis added), and that the defendant did more than engage in “mere silence,”

Wood, 101 U.S. at 143.

Courts usually must infer intent from circumstantial evidence. That is why Rule 9(b) states that “intent

. . . may be alleged generally,” and why we do not apply a heightened pleading standard to the intent elements of fraudulent allegations. See United States ex

19a

rel. Taylor v. Boyko, 39 F.4th 177, 197 n.14 (4th Cir.

2022) (noting that district court should apply normal

Rule 8 standard to an allegation of fraudulent intent

rather than a heightened standard under Rule 9(b)).

So we will address how courts might infer fraudulent

intent from an allegation of an affirmative act, although we emphasize that this is not an exhaustive

list.

Courts should first consider whether the affirmative acts themselves imply fraudulent intent. For example, when the defendants in Edmonson

“back[]dated” documents that would have revealed

their conspiracy, it was hard to imagine a benign

purpose for their acts. 922 F.3d at 553. In contrast,

when the plaintiff in Pocahontas asked a “timid”

question only indirectly related to the alleged conspiracy, it was difficult to infer that the defendant’s

response was intended to “deflect[] litigation.” 828

F.2d at 218–19. For allegations of unwritten agreements, it will sometimes be difficult to infer fraudulent intent: perhaps the agreement was so vague that

there was no reason to commit it to paper, or maybe it

was just simpler for the defendants to communicate

orally. Cf. Robertson, 679 F.3d at 291 n.2 (noting that

a mere “failure to admit to wrongdoing” does not itself

suffice). On the other hand, if an unwritten agreement

allegedly had well-defined rules, was in effect for an

extended period, or had many participants, it would

be easier to infer fraudulent intent.

Courts should also consider whether the underlying

violation—the violation that the affirmative acts are

intended to cover up—is obviously illegal. When the

alleged violation presents “extremely difficult and

particularly close questions of law,” it is more difficult

to infer that an affirmative act was intended to avoid

detection, as defendants may have not even realized

20a

that their actions were illegal. Boland, 868 F. Supp.

2d at 516 (rejecting allegations of affirmative acts of

concealment where underlying allegation was that a

real estate information-sharing organization’s rules

were designed to exclude innovative brokerages); see

GO Computer, 508 F.3d at 179 (“[W]rongdoing is not

a straightforward matter of fact, and it is not fraud to

deny it.”). But where a plaintiff alleges an obvious legal violation, a court should more readily infer that

an affirmative act was intended to avoid detection.

See Pro Slab, 2019 WL 4544086, at *14–15 (denying

dismissal of affirmative- acts allegation that defendants conspired in secret meetings and sent misleading letters to customers where plaintiff alleged underlying violation of price-fixing and bid-rigging).

Applying Rule 8’s more lenient standard, we can

infer from Plaintiffs’ allegations that Defendants’ affirmative acts were intended to avoid detection.

At the most basic level, it is hard to imagine that a

decades-old multilateral agreement—with a clear and

apparently anticompetitive rule (you shall not hire

your co- conspirators’ employees) and a clear exception

(unless the employee first applies to you)— would remain unwritten merely for the sake of convenience.

The coded language Defendants allegedly used to refer to their conspiracy could also indicate that they

were self-conscious of its illegality. Plaintiffs allege

that one recruiter claimed that Defendants asking for

recruitment help “would often use coded language to

discuss the set of competitors whose employees the

hiring manager did not want to recruit, referring to

those companies as ‘friends’ or explaining that the

company ‘had a relationship’ with these competitors.”

J.A. 46. And the ubiquitous references to a “gentlemen’s agreement” could indicate that Defendants

21a

wanted to make their agreement seem like an agreement among friends as opposed to an illegal conspiracy, or that Defendants recognized they could not rely

on the legal enforceability of a written agreement. In

a case involving similar allegations in another industry, a California district court applying the affirmative-acts standard concluded as much when it found

that allegations that the defendants’ conspiracy “was

termed a ‘gentlemen’s agreement’” and that the defendants “intentionally cho[se] to meet in-person or

over the telephone, rather than risk memorializing

details about the alleged conspiracy” in writing

helped to “raise the reasonable inference that [the

d]efendants took affirmative steps to conceal the details of their conspiracy.” In re Animation Workers

Antitrust Litig., 123 F. Supp. 3d 1175, 1201 (N.D.

Cal. 2015).

The allegedly obvious illegality of Defendants’ nopoach agreement also weighs in favor of finding that

their affirmative acts were intended to conceal or deceive. 6 See, e.g., Deslandes v. McDonald’s USA, LLC,

81 F.4th 699, 703 (7th Cir. 2023) (vacating dismissal

of an allegation of a no-poach agreement and warning

that a naked no-poach agreement is a per se Sherman

Act violation), cert. denied, 144 S. Ct. 1057 (2024); In

re Animation Workers Antitrust Litig., 123 F. Supp.

3d at 1214 (finding that allegations of an “information sharing and no-poach scheme . . . to suppress

wages” raised a plausible inference of a per se antiWe need not determine today whether this alleged no-poach

agreement is actually illegal. That issue has not been briefed

and we leave it to the district court to decide in the first instance. Our point is that Defendants probably would have

thought a no-poach agreement was illegal, which makes it more

likely that their determination not to put the agreement in writing was intended to avoid detection.

22a

trust violation). An unwritten gentlemen’s agreement

to commit an obvious antitrust violation appears

much more suspect than an unwritten gentlemen’s

agreement to do something that presents “extremely

difficult and particularly close questions of law.” 7 Boland, 868 F. Supp. 2d at 516.

IV.

Even though Plaintiffs alleged an affirmative act of

concealment with particularity and with the requisite

intent, their claim must be dismissed if they failed to

exercise due diligence in uncovering the alleged conspiracy. 8 Pocahontas, 828 F.2d at 218. We conclude

that, at the motion-to-dismiss stage, Plaintiffs have

sufficiently alleged due diligence.

“Generally, whether a plaintiff exercised due diligence is a jury issue not amenable to resolution on the

pleadings[.]” Edmonson, 922 F.3d at 554. And we

have “long . . . held that it is possible for a plaintiff to

satisfy the due diligence requirement without demonstrating that it engaged in any specific inquiry” because “if the plaintiff was not on inquiry notice, then

there is nothing to provoke inquiry.” Edmonson, 922

F.3d at 554 (cleaned up) (quoting Marlinton, 71 F.3d

at 128). A plaintiff is on inquiry notice “if the plaintiff

(1) believes he might have been harmed and (2) knows

who is responsible for that harm.” SD3 II LLC v.

Because we hold that the non-ink-to-paper agreement suffices

as an affirmative act here, we do not reach Plaintiffs’ other allegations of fraudulent concealment, nor Plaintiffs’ argument that

the district court erred by not granting them leave to amend

their complaint to include additional allegations.

Defendants do not contest the second element of the fraudulent

concealment analysis: that Plaintiffs failed to discover the “facts

that are the basis of the plaintiff’s claim . . . within the statutory

period.” Edmonson, 922 F.3d at 548.

23a

Black & Decker (U.S.) Inc., 888 F.3d 98, 113 (4th Cir.

2018).

Here, as Plaintiffs do not allege that they did much

of anything during the statutory period, their claim

turns on whether they were on inquiry notice. The

pleadings indicate that Plaintiffs did not believe they

had been harmed until they learned of the no-poach

conspiracy through interviews with industry insiders

in April 2023. See Pocahontas, 828 F.2d at 219 (requiring plaintiff to describe how they learned of the

fraudulent concealment). Plaintiffs never allege that

they were aware of the no-poach conspiracy before

that investigation—on the contrary, they state that

they “did not and could not have uncovered Defendants’ conspiracy with the exercise of reasonable diligence. The Plaintiffs at all times believed that they

were being compensated at competitive levels and

were unaware of the agreement to pay subcompetitive wages.” J.A. 102.

Defendants nonetheless argue that “Plaintiffs have

pled their way into inquiry notice” for two principal

reasons. Response Br. at 49. First, Defendants argue

that the alleged conspiracy was “widely distributed”

because it was “known by multiple HR and recruiting

employees, managers, and executives at a multitude

of companies over two decades.” Id. at 51. So, the theory goes, Plaintiffs must have caught a whiff of it. It’s

certainly possible that word of the no-poach agreement

trickled down to injured employees, including Plaintiffs. Or maybe Defendants managed to keep the

agreement need-to-know. That is an issue of fact “not

amenable to resolution on the pleadings.” Edmonson,

922 F.3d at 558. Compare id. at 555 (reversing dismissal even though private litigation had commenced

on related issues against some of the defendants during statutory period), with GO Computer, 508 F.3d at

24a

178 (affirming summary judgment when plaintiff undisputedly met with FTC investigators during the

statutory period about defendant’s alleged antitrust

violations and an investigator told him “[t]his looks

like a textbook case of abuse of monopoly power”).

Second, Defendants argue that Plaintiffs were on

inquiry notice because they allege “naval engineers

generally spend their entire careers without being

solicited by a rival firm.” Response Br. at 49–50

(quoting J.A. 44). Defendants contend that this was

suspicious enough to put Plaintiffs on notice of the

conspiracy. Plaintiffs’ complaint, on the other hand,

goes on to state that “this would not have been

enough for a reasonable plaintiff to suspect and uncover” the no-poach agreement. J.A. 102. Again, this

is a question of fact. Based on the complaint alone, we

cannot say that the named Plaintiffs should have

known about the conspiracy because they were never

recruited by another company. They may have

thought that fact reflected deficiencies in their own

employability, or the vagaries of chance, rather than

an indication of a widespread conspiracy. 9

We conclude that Plaintiffs have adequately alleged fraudulent concealment. Accordingly, we reverse the judgment of the district court and remand

this case for further proceedings.

As Defendants note, Plaintiffs allege that one applicant for jobs

at “other naval engineering firms” was “required to specify that

he had independently pursued the opportunity and not been solicited,” although that applicant was still “unaware of the nopoach agreement.” J.A. 75; see Response Br. at 50–51. Regardless of whether this requirement put that applicant on inquiry

notice, there is no allegation that Plaintiffs were ever asked a

similar question.

25a

REVERSED AND REMANDED

26a

DIAZ, Chief Judge, dissenting:

To invoke the fraudulent concealment tolling doctrine, a plaintiff in an antitrust action “must demonstrate: (1) the party pleading the statute of limitations fraudulently concealed facts that are the basis

of the plaintiff’s claim, and (2) the plaintiff failed to

discover those facts within the statutory period, despite (3) the exercise of due diligence.” Supermarket

of Marlinton, Inc. v. Meadow Gold Diaries, Inc., 71

F.3d 119, 122 (4th Cir. 1995). When “determining

whether antitrust plaintiffs have satisfied the first

element of this test,” courts have developed three

standards: “the ‘self-concealing’ standard, the ‘separate and apart’ standard, and the intermediate, ‘affirmative acts’ standard.” Id.

The majority correctly explains that “the circuits

that have spoken on the issue,” including our own,

“have largely adopted the affirmative-acts standard.”

Majority Op. at 11. Under this standard, “a plaintiff

must prove that the defendants affirmatively acted to

conceal their antitrust violations.” Marlinton, 71

F.3d at 122.

My colleagues purport to hew to this standard.

But because they effectively apply the self-concealing

standard, collapsing the analysis down to the sole

question of whether a conspiracy existed, I respectfully dissent.

Susan Scharpf and Anthony D’Armiento worked in

the naval shipbuilding industry from 2007 to 2013 and

2002 to 2004, respectively. In 2023, they sued seventeen defendants on behalf of themselves and a putative class consisting of “all persons employed as naval

27a

architects and/or marine engineers.” 1 J.A. 41.

Scharpf and D’Armiento allege that the defendants—

including “shipbuilders that produce military vessels

large and small, specialized consulting firms, and a

recruiting firm that sometimes serves these companies,” J.A. 41 ¶ 3—enforced an “unwritten ‘gentlemen’s agreement’” “not to actively recruit, or ‘poach,’

each other’s employees,” J.A. 41 ¶ 1. 2

Though the origins of this “gentlemen’s agreement”

are “obscure,” the plaintiffs allege that “by at least

2000[,] all major players in the industry had reached

a mutual understanding that they would not poach

each other’s employees.” J.A. 79 ¶ 160. This “unwritten, broad secret agreement,” J.A. 96 ¶ 206, survived

“an astonishing number of sales, spin-offs, reorganizations, and other corporate events,” J.A. 79 ¶ 160.

The majority neatly outlines the recruiters, industry insiders, hiring managers, and others who attested to the existence of this “gentlemen’s agreement,”

or otherwise acknowledged the defendants’ “non-inkto-paper” no-poach agreement. See, e.g., Majority Op.

at 6–7, 18–19. But the majority doesn’t rely on these

allegations just to find that the plaintiffs have adequately alleged the existence of a conspiracy between

the defendants. Rather, it relies on them to conclude

that the plaintiffs have “adequately allege[d] that [the]

“Naval architects design vessel hulls and are responsible for a

vessel’s overall stability and performance, while marine engineers design onboard systems such as propulsion mechanics,

electrical systems, water purification, heating systems, and air

conditioning.” Scharpf v. Gen. Dynamics Corp., No. 1:23-cv01372, 2024 WL 1704665, at *2 (E.D. Va. Apr. 19, 2024) (internal quotations omitted).

The plaintiffs allege that the defendants’ no-poach agreement

didn’t apply to those employees who applied to a competitor “on

their own initiative.” Majority Op. at 6.

28a

[d]efendants engaged in affirmative acts [of concealing the conspiracy],” id. at 18, sufficient to toll (indefinitely, it seems) the statute of limitations on the

plaintiffs’ otherwise time-barred antitrust claims.

Respectfully, this is error. The fraudulent concealment doctrine explains why.

II.

“The purpose of [the] fraudulent concealment doctrine is to ‘ensure that wrongdoers are not permitted,

or encouraged, to take advantage of the limitations

period to commit secret illegal conduct without penalty.” Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 549

(4th Cir. 2019) (quoting Marlinton, 71 F.3d at 125).

Thus, the doctrine “applies in situations where the

defendant has wrongly deceived or misled the plaintiff in order to conceal the existence of a cause of action.” Id. (cleaned up).

Recall that a plaintiff seeking to invoke the fraudulent concealment doctrine must show that “(1) the

party pleading the statute of limitations fraudulently

concealed the facts that are the basis of the plaintiff’s

claim, and (2) the plaintiff failed to discover those

facts within the statutory period, despite (3) the exercise of due diligence.” Marlinton, 71 F.3d at 122

(cleaned up). Fraudulent concealment requires “a

plaintiff [to] prove that the defendants affirmatively

acted to conceal their antitrust violations,” though

“the plaintiff’s proof may include acts of concealment

involved in the antitrust violation itself.” Id.

We’ve declined to adopt the so-called “selfconcealing” standard, which turns simply on whether the plaintiffs proved “that a self-concealing antitrust violation has occurred.” 3 Id. My colleagues ex3

“[I]n the Second, Eleventh, and D.C. Circuits, a plaintiff can

29a

plain the difference between the standards with a

vase analogy first described by the Fifth Circuit. See

Majority Op. at 11 n.3 (citing Texas v. Allan Constr.

Co., 851 F.2d 1526 (5th Cir. 1988)). But the majority’s “helpful hypothetical” also illustrates its mistake

in this case. Id.

Under the hypothetical, “[s]elling a fake vase as

if it were an antique’ is a self- concealing violation

because ‘deception is an essential element of the

wrong, and one that is not intended merely to cover

up the wrong itself.’” Id. (cleaned up). “By contrast, ‘stealing a vase’ and ‘replacing it with a worthless replica is not self-concealing’ because ‘the wrong

is the theft of the vase; the replacement is an act separate from the wrong itself and aimed only at concealing the fact that the real vase has been stolen.” Id.

(cleaned up). 4

The problem for the majority (and for the plaintiffs) is that the complaint alleges that the defendants did no more than sell a fake vase.

The plaintiffs allege that the defendants engaged

in a sprawling, multi-decade “unwritten ‘gentlemen’s

agreement’” not to poach one another’s employees.

J.A. 41 ¶ 1. This “non-ink-to-paper,” J.A. 46 ¶ 12,

“unwritten, broad secret agreement,” J.A. 96 ¶ 206,

captured an “industry wide” unspoken rule not to recruit from rivals, J.A. 96 ¶ 205. See also J.A. 46 ¶ 12

(alleging that “[the defendants] don’t put that in writeither show an affirmative act of concealment or that the defendant committed a self-concealing violation.” Majority Op. at

11 n.4.

We have similarly clarified that “[t]he self-concealing standard

is only proper when deception or concealment is a necessary element of the antitrust violation.” Detrick v. Panalpina, Inc., 108

F.3d 529, 541 n.24 (4th Cir. 1997).

30a

ing. You’d be hard pressed to find that in writing.”);

J.A. 76 ¶ 149 (alleging that agreement was “never reduced to writing”).

In other words, “an essential element” of the alleged conspiracy is that it was unwritten. Allan Constr., 851 F.2d at 1529. Deceit was always the beating

heart of this “non-ink-to-paper” agreement. See Majority Op. at 23 (recognizing the “obvious illegality of

[the defendants’] no-poach agreement”).

Look no further than what the majority relies on to

revive the plaintiffs’ claims. The majority recounts

the multitude of witnesses who verified “the existence

of a ‘non-ink-to- paper’ agreement” between the defendants that they “would not poach from each other.” Id. at 18 (cleaned up); see also id. at 7 (“Several of

the interviewees described the conspiracy as a ‘gentlemen’s agreement.’” (cleaned up)); id. at 18 (“Managers with hiring authority repeatedly and independently confirmed the existence of an industrywide ‘gentlemen’s agreement.’” (cleaned up)).

The majority also credits the plaintiffs’ “claim that

‘at least one witness’ verified each [defendant’s] ‘adherence to the industry’s no-poach regime.’” Id. at 18

(cleaned up). And in pleading fraudulent concealment, the plaintiffs emphasize that their claims were

“not time-barred because [the defendants] affirmatively concealed the existence, true nature, and scope

of their industry-wide ‘gentlemen’s agreement.’” J.A.

95 ¶ 204.

While we’re bound to take those allegations as true

at this stage, they all go to the defendant’s alleged

conspiracy, which, again, is an “unwritten ‘gentlemen’s agreement’” not to recruit from one another.

J.A. 41 ¶ 1 (emphasis added). It follows then that

broad evidence that the conspiracy was oral or se-

31a

cret or unwritten or understood among the defendants shows no more than the “inherently deceptive” nature of the conspiracy. 5 Marlinton, 71 F.3d

at 123 n.1. Simply put, the vase was always fake.

To be sure, the affirmative acts standard allows

“the plaintiff’s proof [to] include acts of concealment

involved in the antitrust violation itself.” Marlinton,

71 F.3d at 122. But here, the acts of concealment and

the antitrust violation itself, at least as alleged by the

plaintiffs and described by the majority, exist in concentric circles of evidence supporting the defendants’

“decision to participate in a secret conspiracy.”

Scharpf v. Gen. Dynamics Corp., No. 1:23-cv-10372,

2024 WL 1704665, at *8 (E.D. Va. Apr. 19, 2024).

And while it’s also true that a general anticompetitive or wage-fixing scheme is “not inevitably deceptive

or concealing,” as we’ve found necessary for the “application of the self-concealing standard,” Marlinton,

71 F.3d at 123, the plaintiffs have chosen to allege a

scheme that is self-concealing. By casting the defendants’ antitrust scheme repeatedly and forcefully as an

The majority cursorily references the plaintiffs’ allegations

(stemming from the testimony of a single third-party recruiter)

that unidentified “hiring managers” used broadly by the

“[D]efendants[]” “often use[d] coded language to discuss the set

of competitors whose employees the hiring manager did not

want to recruit.” J.A. 46 ¶ 12; see also Majority Op. at 7. The

majority also mentions the plaintiffs’ allegation that “the agreement was enforced ‘through private phone calls between highlevel executives and official retribution.’” Majority Op. at 7

(quoting J.A. 101 ¶ 220). While these allegations are more like

“affirmative acts” of concealment by the defendants, they are

inadequate under the particularity requirements of Rule 9(b).

Infra p.36. The plaintiffs provide no information about when, or

among whom, this “coded language” was used or these “private

phone calls” were made, or how either related to the alleged conspiracy.

32a

“unwritten, ‘gentlemen’s agreement,’” the plaintiffs

effectively admit that its “deceptive aspect” was part

of the conspiracy, and not “intended solely to ‘cover

up’ the illegal act,” Marlinton, 71 F.3d at 123 (quoting

Allan Constr., 851 F.2d at 1530). See also Royal

Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 35

(2025) (“Begin from the beginning: The plaintiff is the

master of the complaint[] and therefore controls much

about her suit.” (cleaned up)).

In short, the district court was right to reject the

plaintiffs’ argument that the defendants’ “unwritten

rule” was an affirmative act of concealment. 6 Id.

III.

Beyond misapplying the affirmative acts standard,

the majority ignores contrary precedent based on perceived “ambiguities,” Majority Op. at 15, or “uncertainty,” id. at 17, in the cases’ holdings. For example,

my friends reject application of our seminal holding

on fraudulent concealment in Pocahantas Supreme

Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211 (4th

Cir. 1987). There, we explained that a defendant’s

“failure to own up to illegal conduct” was insufficient

to toll the statute of limitations. Id. at 218–19. But to

the majority, because Pocahantas didn’t “expressly

adopt” one of the three fraudulent concealment

standards, Majority Op. at 15, its holding on the inThe plaintiffs trot out other allegations that they say show

fraudulent concealment, including the defendants’ “general public and non-public representations” about their “competitive”

compensation and active recruitment; their “general statements

that they comply with antitrust laws and are essentially lawabiding and ethical”; and their non- solicitation clauses in permissible teaming agreements that were allegedly “‘cover’ for the

unlawful no-poach scheme.” Scharpf, 2024 WL 1704665, at *7.

The majority doesn’t address these alternative claims, but, like

the district court, I would find them unpersuasive.

33a

sufficiency of the failure-to-admit-wrongdoing allegations is somehow “ambiguous,” id. at 14.

Likewise, the majority brushes off our decision in

Robertson v. Sea Pines Real Estate Cos., where we affirmed a district court’s conclusion that “plaintiffs

failed to ‘allege affirmative acts of concealment or affirmative steps to mislead’ and that [the] ‘plaintiffs’

allegations amount[ed] to no more than a failure to

admit wrongdoing, which does not suffice.’” 679 F.3d

278, 291 n.2 (4th Cir. 2012) (quoting Pocahantas, 828

F.2d at 218– 19). 7 The alleged affirmative acts that

the district court rejected included “meeting secretly,

giving pretextual reasons for the costs of real estate

services, and agreeing at meetings not [t]o discuss

their illegal scheme publicly.” Boland v. Consol. Multiple Listing Serv., Inc., 868 F. Supp. 2d 506, 517–18

(D.S.C. 2011).

But because we summarily affirmed the district

court’s decision in a footnote, the majority claims “uncertainty” as to what we “properly concluded,” and so

rejects the case without further discussion. Majority

Op. at 17. Tellingly though, as the district court here

explained, Robertson “specifically affirmed the [Boland] court’s conclusion,” which it quoted from Pocahantas, that the plaintiffs’ allegations “amount[ed] to

no more than a failure to admit wrongdoing, which

does not suffice [for fraudulent concealment].”

Scharpf, 2024 WL 1704665, at *6 (quoting Robertson, 679 F.3d at 291 n.2). All three cases (Pocahantas and Boland/Robertson) deserve more respect

than the majority gives them.

My colleagues also substantially relax the required

showing under Rule 9(b) that the plaintiffs must satRobertson consolidated interlocutory

related class action complaints.

appeals

from

two

34a

isfy to plead any affirmative acts of fraudulent concealment. They do so by allowing the plaintiffs to repackage overlapping and general descriptions of a

single conspiracy, rather than requiring them to allege discrete and particularized acts by the defendants to conceal the conspiracy. Majority Op. at 18–19.

The majority repeats that unnamed “industry insiders” “acknowledge[d] the existence of the no-poach

agreement,” although those insiders made no mention

of when— or among whom—that agreement was

made. Id. at 18. And they cite the—again, largely unidentified—“interviewees” who “support the proposition that [the defendants] carefully avoided putting

their alleged no-poach agreement in writing,” id.,

along with the “[m]anagers with hiring authority”

who “confirmed the existence of an industry-wide

‘gentlemen’s agreement,’” id. at 18. Around and

around we go.

Worse yet, my friends excuse the plaintiffs from

having to show any diligence whatsoever in pursuing

claims in an alleged decades-long conspiracy, id. at

24–26, despite the plaintiffs’ own allegations that collusion within the industry may have caused a “shortage of naval engineers,” a lack of “labor mobility,” and

“relatively uniform compensation structures” that

were “far below what would be available in a competitive market,” id. at 5 (citing complaint).

The majority doesn’t simply accept the plaintiffs’

allegations as true; it does the plaintiffs’ work for

them. I agree that the law does, and should, prevent

“conspirators who cunningly avoid creating evidence

of their conspiracy” from escaping liability for their

illegal conduct. Id. at 17. But plaintiffs alleging a

conspiracy don’t get a free pass on time- barred

claims. In our circuit—at least for now—they must

show that the defendants affirmatively acted to con-

35a

ceal the conspiracy. Otherwise, we needn’t bother

having a statute of limitations defense at all.

Plaintiffs failed to make the requisite showing for

fraudulent concealment. And the majority compounds that omission by applying the wrong standard

in evaluating the fraudulent concealment claims. The

district court correctly dismissed the complaint.

Because the majority holds otherwise, I respectfully dissent.

36a

APPENDIX B

No. 23-1372

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

SUSAN SCHARPF, on behalf of herself and all others

similarly situated, et al.,

Plaintiffs,

GENERAL DYNAMICS CORP., et al.,

Defendants.

Signed April 19, 2024

MEMORANDUM OPINION AND ORDER

Anthony J. Trenga, Senior United States District

Judge

In this antitrust putative class action, Defendants 1

have filed a Joint Motion to Dismiss for Failure to

State a Claim, [Doc. No. 178] (the “Joint Motion”),

and, separately, various individual Motions to DisThe Defendants are General Dynamics Corp., Bath Iron Works

Corp., Electric Boat Corp., General Dynamics Information

Technology, Inc., Huntington Ingalls Industries, Inc., Newport

News Shipbuilding and Dry Dock Co., Ingalls Shipbuilding, Inc.,

HII Mission Technologies Corp., HII Fleet Support Group LLC,

Marinette Marine Corporation, Bollinger Shipyards, LLC, Gibbs

& Cox, Inc., Serco, Inc., CACI International Inc., The Columbia

Group, Inc., Thor Solutions, LLC, Tridentis, LLC, BMT International, Inc., Technology Financing, Inc., and Faststream Recruitment Ltd. BMT and Technology Financing have been dismissed from this action, [Doc. No. 200], and Plaintiffs have filed

a notice of settlement with Faststream and a motion for the

Court to preliminarily approve of that settlement, certify a settlement class, and appoint settlement class counsel. [Doc. Nos.

201, 219].

37a

miss for Failure to State a Claim, [Doc. Nos. 180, 181,

184, 187, 189, 191, 193] (the “Individual Motions”).

For the reasons stated below, the Joint Motion is

GRANTED on the grounds that the claims by the

named plaintiffs are barred by the applicable statute

of limitations. 2

I. BACKGROUND

In this antitrust action, Plaintiffs Susan Scharpf

and Anthony D’Armiento (together, “Plaintiffs”)

brought suit on October 6, 2023 on behalf of themselves individually and, under Federal Rule of Civil

Procedure 23(a), (b)(2), and (b)(3), on behalf of a class

“consisting of all persons employed as naval architects and/or marine engineers in the United States by

Defendants” (the “Class”). [Doc. No. 1] at 1 (the

“Complaint”). 3 Scharpf worked in the alleged relevant

market from 2007 to 2013, first, as a naval architect

at Alion Science & Technology Corporation from 2007

to 2009, then, as a naval marine engineer with Computer Sciences Corporation from 2009 to 2011, and

finally, as a marine engineer with Gibbs & Cox, Inc.

from 2011 to 2013. Id. ¶ 19. D’Armiento worked in

the alleged relevant market from 2002 to 2004 when

Because the Court will grant the Joint Motion, it does not need

to reach the Individual Motions, which will be denied as moot.

More specifically, the Complaint purports to include in the

proposed Class “[a]ll naval architects and marine engineers employed by Defendants (except Defendant Faststream Recruitment Ltd.), their predecessors, subsidiaries, and/or related entities in the United States at any time from January 1, 2000, until

Defendants’ unlawful conduct ceases.” Id. ¶ 227. The proposed

Class excludes “Defendants’ executives, human resources managers, and human resources staff; Defendants, co-conspirators,

and any of their subsidiaries, predecessors, officers, or directors;

and federal, state, or local governmental entities.” Id. ¶ 228.

38a

he was employed as a naval architect with Northrop

Grumman Ship Systems 4 from 2002 to 2004. Id., 20.

The Complaint alleges as its sole cause of action a

violation of Section 1 of the Sherman Act, 15 U.S.C. §

1, which provides:

Every contract, combination in the form of

trust or otherwise, or conspiracy, in restraint

of trade or commerce among the several

States, or with foreign nations, is declared to

be illegal. Every person who shall make any

contract or engage in any combination or conspiracy hereby declared to be illegal shall be

deemed guilty of a felony, and, on conviction

thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any

other person, $1,000,000, or by imprisonment

not exceeding 10 years, or by both said punishments, in the discretion of the court.

Id.

Briefly summarized, the Complaint alleges in support of that Section 1 claim that Defendants—who

comprise approximately “75 percent of the relevant

market”—entered into a conspiracy in restraint of

trade that consists of an “ ‘unwritten gentlemen’s

agreement’ not to affirmatively recruit one another’s

naval engineers” or naval architects, id. ¶¶ 244, 242,

and that this agreement “suppressed wages for naval

engineers below competitive levels, depriving Plaintiffs and the Class of hundreds of millions of dollars

in compensation,” id. ¶ 1.

Northrop Grumman Ship Systems was a former division of

Northrop Grumman Corporation that has since been spun off

into a new entity named “Huntington Ingalls Industries, Inc.”

Id. ¶ 20.

39a

A. The Naval Industry

Plaintiffs’ Section 1 conspiracy claim pertains only

to that part of the naval industry involved with the

design and manufacture of the United States “public

fleet,” that is, vessels owned or operated by federal

and state governments or agencies, which are built

domestically, while most commercial vessels are built

overseas. Id. ¶ 116. The domestic shipbuilding industry generates approximately $30 billion a year, nearly

80% of which is derived from military shipbuilding,

maintenance, and repairs, and employs approximately 108,000 workers. Id. ¶ 117. Thus, the country’s major and minor shipbuilding yards rely predominantly

on contracts with the U.S. military. Id. ¶ 116. As of

2020, about 10,000 of those workers were employed

as naval architects or marine engineers. Id. ¶ 121.

“Naval architects” design vessel hulls and are responsible for a vessel’s overall stability and performance, while “marine engineers” design onboard systems such as propulsion mechanics, electrical systems, water purification, heating systems, and air

conditioning. Id. ¶ 122. While personnel within these

two categories are employed under various titles, the

Complaint refers to all of them as “naval engineers.”

Id. Naval engineers earn a median salary of

$100,000, and generally must have a bachelor’s degree in engineering and U.S. citizenship; but some

roles additionally require either master’s degrees,

doctoral degrees, other specialized training, or security clearances. Id. ¶¶ 123-25. Most of the naval engineers in the United States work for (1) shipbuilders,

(2) dedicated engineering consultancies, or (3) the

federal government directly. Id. ¶¶ 127-31. Naval engineering skills are highly transferable, and consequently, Defendants are “horizontal competitors” in

this labor market for the same pool of talent. Id. ¶¶

40a

132-33. According to the Complaint, given that limited pool of talent, together with job characteristics

that ordinarily promote job mobility such as at-will

employment agreements and the industry’s geographic concentration, one would expect a competitive environment in which Defendants would “headhunt” experienced candidates, but they did not do so because

of their no-poach conspiracy. Id. ¶ 126.

The Complaint further alleges that the nature of

the domestic ship-building industry encourages the

type of anticompetitive conduct at issue here. In that

regard, construction projects in the industry typically

require collaborative participation from a plethora of

contractors, subcontractors, and firms, see id ¶¶ 119,

129; thus, consultancies and shipbuilders often work

together across multiple projects, id. ¶ 137. As described in the Complaint:

This repeat-player dynamic encourages close

and cooperative inter-firm relationships that

extend to the individual level—so much so

that one industry veteran described the various firms as “allied places.” It also ensures

that competing firms’ fates are bound to each

other by networks of obligation and favoritism

that provide each firm with many opportunities to help friends and punish rivals who are

perceived as competing “out of bounds.”

Id. This environment also produces industry groups,

conferences, and other regular events at which competitors are free to “interact privately without any

digital record.” Id. ¶ 138. Moreover, industry executives are geographically concentrated in the Washington, D.C., Northern Virginia, and East Coast areas, which further “facilitated Defendants’ no-poach

conspiracy.” Id. ¶¶ 139-40.

41a

B. The No-Poach Conspiracy

The Complaint alleges that, though the “origins [of

the conspiracy] are obscure,” all major industry players had joined in the conspiracy by 2000, id., ¶ 160,

and the conspiracy has continued despite “sales, spinoffs, reorganizations, and other corporate events during the Class Period” because business units maintained continuity through legacy names, personnel,

operating practices, and culture. Id. ¶¶ 160-61.

In support of Plaintiffs’ claim that a conspiracy

was formed and continues to this day, the Complaint

alleges the statements of a wide range of industry

participants:

Managers with hiring authority repeatedly

and independently confirmed the existence of

an industry-wide “gentlemen’s agreement,” using that term, not to actively poach from competitors. Another senior employee conveyed

that a company that had broken the rules was

“not supposed to do that.” Each Engineering

Defendant in this action is tied to the conspiracy through the testimony of at least one witness who verified the party’s adherence to the

industry’s no-poach regime.

Id. ¶ 142. The Complaint also cites similar statements by several other unnamed witnesses. See, e.g.,

id. ¶¶ 143, 146-48, 150-58. Moreover, Plaintiffs allege

that each of the Defendant entities or business units

were connected to the conspiracy by at least one witness who either (1) named the individual Defendant

as a part of the conspiracy, (2) discussed how the conspiracy related to an individual seeking to change

employment in the industry, or (3) acknowledged that

the Defendant had a policy or practice of not recruiting competitors’ employees. Id. ¶ 159.

42a

A main feature of the alleged conspiracy is that the

Defendants actively avoided recruiting from other

Defendants’ naval engineers, except when naval engineers made the initial approach to a Defendant, in

which case Defendants could and did hire them. Id. ¶

161. “No Engineering Defendant, much less all Engineering Defendants, would arrive at such a combination of practices independently without a mutual understanding that the other Engineering Defendants

would restrict themselves to the same policies.” 5 Id. ¶

162. Moreover, according to one witness, “[t]here was

so much more demand [for employees] than there was

talent,” id. (second alteration in original), and thus,

the Complaint alleges, Defendants should have been

engaged in a “war for talent in which Defendants offered regular promotions and pay increases, attempted to lure talent away from rivals, and matched offers

from competitors trying to do the same,” id. ¶ 163.

“[T]he only explanation for firms’ parallel failure to

actively recruit from competitors is an unlawful

agreement,” id. ¶ 164, and the following “plus factors”

indicate an unlawful conspiracy rather than merely

parallel action based on independent decision making:

(1) high barriers to entry;

The Complaint defines “Engineering Defendants” as “the group

of business units operated by Defendants other than Faststream

Recruitment Ltd.—i.e., the units that employ or employed naval

engineers during the Class Period.” Id. ¶ 22. The Complaint uses “each Engineering Defendant” to refer to “such functional

business unit that exists or existed with an independent identity

at the relevant time(s).” Id. And the Complaint uses “All Engineering Defendants” to “refe[r] to all such business units that

exist or existed with an independent identity at the relevant

time(s).” Id.

43a

(2) shared financial incentives to maintain low

salaries industry-wide;

(3) shared pressure from government customers to

keep costs low;

(4) extensive repeat-player working relationships

among competitors, with opportunities for a

range of informal punishments that can be

used to enforce the unlawful no-poach agreement;

(5) social ties between key personnel, encouraging

trust and cooperation among competitors;

(6) opportunities to collude at industry events, social events, and frequent informal meetings

among key personnel; and

(7) a culture of secrecy that insulates the industry

from rigorous oversight and enables collusion.

Id. ¶ 166-75.

Defendants are also alleged to have participated in

the conspiracy by sharing sensitive compensation information, both at in-person events, id. ¶¶ 178-81,

and through third parties such as Faststream, id. ¶¶

182-83. This information sharing scheme “enabled

Defendants to confirm that their no-poach agreement

was continuing to have its desired effect of suppressing compensation and that their competitors’ compensation was not indicative of true competition for

labor.” Id. ¶ 183. Notably, this information was not

provided to Defendants’ employees. Id. ¶ 182.

Plaintiffs also allege several ways in which the Defendants concealed their conspiracy, specifically, that

Defendants (1) avoided putting the alleged agreement

in writing, id. ¶ 205; (2) entered pretextual teaming

agreements that contained limited no-hire clauses,

44a

id. ¶ 206; (3) represented that they offer “competitive”

compensation, id. ¶¶ 207-08; (4) made “public and

private” representations to “direct attention away”

from the alleged conspiracy, such as one Defendant’s

reference to a “grow our own” workplace development

approach, id. ¶ 209; (5) represented that they adhere

to ethical standards, federal laws, and antitrust laws

in particular, id. ¶¶ 210-15; (6) represented that they

preserve confidential business and employee information, id. ¶ 216; and (7) represented that they actively recruit potential employees, id. ¶ 217.

II. LEGAL STANDARD

Under Rule 12(b)(6), “a complaint must be dismissed when a plaintiffs allegations fail to state a

claim upon which relief can be granted.” Adams v.

NaphCare, Inc., 244 F. Supp. 3d 546, 548 (E.D. Va.

2017). In addressing a Rule 12(b)(6) motion, a court

must assume the truth of all facts alleged in the complaint and construe the factual allegations in favor of

the plaintiff. Robinson v. Am. Honda Motor Co., 551

F.3d 218, 222 (4th Cir. 2009). However, to survive a

motion to dismiss, the facts alleged in the complaint

“must be enough to raise a right to relief above the

speculative level” and “to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 570 (2007). “[A] plaintiff’s obligation to

provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Id. at 555 (internal quotation marks and

citations omitted). Dismissal of a complaint is appropriate when the “well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

While the well-pleaded facts within a complaint are

considered by the Court to be true, legal conclusions

45a

are not afforded the same presumption. Id. at 678.

Further, the Court may consider the assertion of the

statute of limitations as an affirmative defense pursuant to Federal Rule of Civil Procedure 12(b)(6) “if

the time bar is apparent on the face of the complaint.”

Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th

Cir. 2005); see also Goodman v. Praxair, Inc., 494

F.3d 458, 464 (4th Cir. 2007) (noting that it is appropriate to rule on an affirmative statute of limitations

defense “in the relatively rare circumstances where

facts sufficient to rule on an affirmative defense are

alleged in the complaint”).

III. ANALYSIS

In the Joint Motion, Defendants seek dismissal

based on the statute of limitations. 6 [Doc. No 178-1]

at 10; see 15 U.S.C. § 15b. As alleged in the Complaint, the Plaintiffs’ employment and participation

in the relevant market ended no later than 2004 (as

to D’Armiento) and 2013 (as to Scharpf). [Doc. No. 1]

¶¶ 19-20. The expiration of the Sherman Act’s applicable four-year statute of limitations as to both Plaintiffs, without any tolling, is therefore clear from the

face of the Complaint. Plaintiffs contend, however,

and the Defendants dispute, that the Complaint sufficiently alleges fraudulent concealment to toll the

statute of limitations. 7

Defendants also seek dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Given the Court’s dismissal

based on the applicable limitations period, the Court will not

rule on this asserted alternative ground for dismissal.

While the Complaint also raises the continuing violation doctrine to toll the statute of limitations, see Klehr v. A.O. Smith

Corp., 521 U.S. 179, 189 (1997), it does so in reference to the

interests of potential class members, see [Doc. No. 1] at ¶ 202;

and Plaintiffs concede that the doctrine does not relate to acts

prior to the last four years. [Doc. No. 202] at 42. Therefore, it

46a

A. Fraudulent Concealment in the Fourth Circuit

To plead fraudulent concealment, Plaintiffs must

sufficiently allege that “(1) the [Defendants] fraudulently concealed facts which are the basis of a claim,

and that (2) the [Plaintiffs] failed to discover those

facts within the statutory period, despite (3) the exercise of due diligence.” Pocahontas Supreme Coal Co.

v. Bethlehem Steel Corp., 828 F.2d 211, 218 (4th Cir.

1987). Although the circumstances constituting

fraudulent concealment, as with all allegations of

fraud, must be pleaded with particularity, see Fed. R.

Civ. P. 9(b), the Fourth Circuit has recognized that,

“[i]n cases involving alleged fraud by omission or concealment, it is well-nigh impossible for plaintiffs to

plead all the necessary facts with particularity, given

that those facts will often be in the sole possession of

the defendant.” Corder v. Antero Res. Corp., 57 F.4th

384, 402 (4th Cir. 2023). Accordingly, “plaintiffs may

partly rely on information and belief without running

afoul of Rule 9(b)” as long as they “state the factual

allegations that make their belief plausible.” Id.

However, “this relaxed standard ‘does not eliminate

the particularity requirement.’ ” Id. (quoting Devaney

v. Chester, 813 F.2d 566, 569 (2d Cir. 1987)).

In a series of cases, the Fourth Circuit has discussed the sufficiency of factual allegations for the

purpose of tolling based on fraudulent concealment.

In Pocahontas, the plaintiff sued various coal-mining

appears to be undisputed that the named Plaintiffs do not allege

that the continuing violation doctrine applies to their individual

claims. As such, “[Plaintiffs’] only hope is to invoke fraudulent

concealment doctrine to start the limitations period later than

[four years prior to the instatement of the action]; if this argument fails, there is no need to reach the others.” GO Computer,

Inc. v. Microsoft Corp., 508 F.3d 170, 177 (4th Cir. 2007).

47a

companies after the statute of limitations had expired

for, as is relevant here, price-fixing under the Sherman Act. 8 Id. In an effort to avoid dismissal of the action as untimely, the plaintiff argued that the defendants had “employed techniques of secrecy” to conceal the conspiracy. In support of that claim, plaintiffs pointed to the defendants’ response when asked

why the price for delivered coal was so low and why

the defendants refused to accept certain deliveries of

coal; that is, rather than admit the conspiracy, the

defendants lied. Id. at 218; see Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119,

123 (4th Cir. 1995) (discussing Pocahontas). Explaining that “[i]t can hardly be imagined that illegal activities would ever be so gratuitously revealed,” Pocahontas, 828 F.2d at 219, the Fourth Circuit dismissed as “sophistry” the plaintiff’s argument that

such a “failure to own up to illegal conduct” in response to a “timid inquiry” was enough to toll the

statute of limitations. Id. at 218-19.

In Marlinton, the Fourth Circuit formalized its approach to fraudulent concealment. There, food store

plaintiffs alleged that several large dairy defendants

had concealed their conspiracy to fix milk prices. 71

F.3d 121. The Fourth Circuit rejected the “separate

and apart” standard, which “consider[s] only those

acts of concealment completed subsequent in time to

the wrong,” id. at 125 (quoting Texas v. Allan Construction Co., 851 F.2d 1526, 1532 (5th Cir. 1988)),

and held that the proper standard for such claims is

the “intermediate, affirmative acts” standard, which

requires plaintiffs to provide evidence of affirmative

The plaintiff theorized that the defendants had conspired to

monopolize the metallurgical coal trade in certain West Virginia

counties, thereby eliminating the plaintiff (a competing contract

coal miner) from the market. 828 F.2d at 215.

48a

acts of the defendants’ concealment but allows for the

consideration of conduct both before and after the

completion of the conduct constituting the offense. 9

71 F.3d at 125.

In Robertson v. Sea Pines Real Estate Companies,

Inc., 679 F.3d 278 (4th Cir. 2012), aff’g sub nom. Boland v. Consolidated Multiple Listing Service, Inc.,

868 F. Supp. 2d 506 (D. S.C. 2011), the plaintiffs alleged a conspiracy between several defendants to restrain competition and raise prices for real estate

services. Boland, 868 F. Supp. 2d at 509. The plaintiffs argued that they had adequately pleaded fraudulent concealment by alleging “acts of concealment

such as meeting secretly, giving pretextual reasons

for the costs of real estate services, and agreeing at

meetings” to not discuss the conspiracy publicly. Id.

at 517–18. The district court rejected these allegations as insufficient under Rule 9(b), finding, as the

Fourth Circuit did in Pocahontas, that such allegations “amount to no more than a failure to admit

wrongdoing, which does not suffice.” Id. at 518. On

Marlinton also suggested that Pocahontas did not exclude the

possibility of a third, “self-concealing” standard, which would

permit a plaintiff to satisfy the “affirmative acts” element of

fraudulent concealment simply by demonstrating that the underlying antitrust violation was inherently deceptive. Id. at 123

n.1. Ultimately, the Fourth Circuit held that the “intermediate,

affirmative acts” standard was applicable because “[a]lthough

[price-fixing] is generally secretive, it need not be so.” Id. A later

decision clarified that “[t]he self-concealing standard is only

proper when deception or concealment is a necessary element of

the antitrust violation.” Detrick v. Panalpina, Inc., 108 F.3d 529,

541 n.24 (4th Cir. 1997). As far as the Court could determine, no

court in this circuit has applied the “self-concealing” standard;

in any event, Plaintiffs and Defendants appear to agree that the

intermediate, affirmative acts standard applies here. See [Doc.

No. 1] ¶ 204-26; [Doc. No. 178-1] at 13–19.

49a

appeal, the Fourth Circuit specifically affirmed the

district court’s conclusion on this issue. Robertson,

679 F.3d at 291 n.2 (citing Pocahontas, 828 F.2d at

218-19).

Finally, in Edmonson v. Eagle National Bank, 922

F.3d 535, 553 (4th Cir. 2019), the Fourth Circuit applied Marlinion’s “intermediate, affirmative acts”

standard to allegations that the defendants had employed “trick[s] or contrivance[s]” to conceal a kickback scheme prohibited by the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. The

Fourth Circuit found that the plaintiffs had sufficiently pleaded affirmative acts constituting a fraudulent concealment of their scheme when they alleged

with sufficient particularity under Rule 9(b) that the

defendants (1) “created and used ‘sham’ entities to

channel the allegedly unlawful cash kickbacks”; (2)

entered sham, “back-dated” agreements to conceal

the scheme from investigators; and (3) omitted reporting the kickback payments on plaintiffs’ settlement statements, “notwithstanding that governing

regulations required reporting such payments.” Id. at

553-54.

B. Plaintiffs’ Allegations Do Not Sufficiently

Plead Affirmative Acts of Concealment

Relying on the Fourth Circuit’s pronouncements

regarding the fraudulent concealment doctrine in

Edmonson and Marlinton, and the relaxed pleading

standard for fraud under Rule 9(b) as set out by

Corder, Plaintiffs point to the following categories of

allegations in their Complaint that reflect how the

Defendants affirmatively concealed their “no-poach”

conspiracy:

(1) Defendants agreed to keep the alleged agreement secret, see, e.g., [Doc. No. 1] ¶ 205 (alleg-

50a

ing Defendants avoided putting the alleged

agreement in writing);

(2) Defendants made general public and nonpublic representations that they offer “competitive” compensation and actively recruit employees, see, e.g., id. ¶¶ 207-09 (alleging Defendants represented that they offer “competitive” compensation); id. ¶ 217 (alleging Defendants represented that they actively recruit

potential employees);

(3) Defendants made general statements that they

comply with antitrust laws and are essentially

law-abiding and ethical, see, e.g., id. ¶¶ 207-17

(alleging Defendants failed to admit illegal

conduct in web pages, published reports, and

codes of conduct); id. ¶¶ 210-15 (alleging Defendants represented that they adhere to ethical standards, federal laws, and antitrust laws

in particular); id. ¶ 216 (alleging Defendants

represented that they preserve confidential

business and employee information); and

(4) Defendants included non-solicitation clauses in

teaming agreements as “cover” for the unlawful no-poach scheme, see, e.g., id. ¶ 206.

The holdings and pronouncements in Pocahontas,

Marlinton, Boland and Robertson, and Edmonson require a rejection of all four of these categories of allegations as insufficient to plead fraudulent concealment at the motion to dismiss stage.

In Boland and Robertson, the district court and the

Fourth Circuit rejected as insufficient to toll the statute of limitations plaintiffs’ allegations that defendants (1) met secretly, (2) gave pretextual reasons for

real estate costs, and (3) agreed to keep secret the nature of their communications to conceal their illegal

51a

agreement. See Boland, 868 F. Supp. 2d at 518; Robertson, 679 F.3d at 291 n.2. The allegations here that

Defendants agreed to keep the conspiracy secret (category one) fare no better than those in Boland and

Robertson; and while Plaintiffs here allege certain

“pretextual reasons” and public misrepresentations

(categories two and three) with more specificity than

the plaintiffs in Boland and Robertson, these allegations are, in substance, claims that Defendants lied

and “fail[ed] to own up to illegal conduct.” See Pocahontas, 828 F.2d at 218. In fact, these statements

have even less connection to the alleged conspiracy

than the allegations in Pocahontas regarding the defendants’ purportedly false responses to the plaintiff’s

inquiry. See id. As the Fourth Circuit explained in

Marlinton, it is not enough to allege that “the defendants ... lied” upon “general inquiry.” Marlinton, 71

F.3d at 123. Here, the allegations are that Defendants simply failed to admit or disclose their conspiracy without any inquiry of them at all. As such, the allegations are insufficient to plead affirmative acts of

concealment.

Plaintiffs attempt to distinguish Boland by pointing to an allegation in the underlying complaint that

the defendants had agreed “to develop, implement,

enact, and facilitate the enforcement of unlawful

CMLS Rules, regulations, by-laws, policies, and procedures.” See Boland, 868 F.Supp.2d at 513. Plaintiffs

argue that the Fourth Circuit’s affirmance of the district court’s statute of limitations ruling was therefore based on the district court’s recognition that the

challenged agreements were not affirmatively concealed, but rather were “memorialized,” “adopted in

non-public meetings,” and simply “not publicized.”

[Doc. No. 202] at 32-33. In other words, the challenged agreements were presumably discoverable,

52a

while the “gentlemen’s agreement” here was unwritten, concealed and therefore undiscoverable. See id.

at 33.

This argument falls short. First, rather than relying on the memorialized nature of the challenged

agreements for its rejection of any tolling, as Plaintiffs suggest, the district court in Boland focused on

whether the plaintiffs’ allegations that the defendants “used means and methods designed to avoid detection” sufficiently alleged affirmative acts of concealment and concluded that they did not. 10 Boland,

868 F. Supp. 2d at 518. Second, to the extent that

Plaintiffs argue that the decision to participate in a

secret conspiracy is itself an affirmative act, see [Doc.

No. 1] ¶ 204 (asserting as an affirmative act that “Defendants had established an ‘unwritten rule’ that no

one Defendant would affirmatively recruit the other’s

naval engineers”), the Fourth Circuit in Marlinton

explained that antitrust violations that are not “inherently deceptive” are subject to the “intermediate,

affirmative acts” standard, not the “self-concealing”

standard. Marlinton, 71 F.3d at 123 n. 1. As this

Court has explained, the “self-concealing” standard

does not apply here, nor do Plaintiffs contend that it

does, see supra note 9, and they therefore may not

Similarly problematic is Plaintiffs’ apparent reliance, see [Doc.

No. 202] at 33, on Robertson’s recognition that the “concerted

conduct” in that case was “both plainly documented and readily

available so that plaintiffs can describe the factual content of

the agreement without the benefit of extended discovery.” Robertson, 679 F.3d at 290. But that aspect of the decision related to

whether the plaintiffs had pleaded facts sufficient to establish

the conspiracy itself. See id. at 288 (holding that “the complaints

satisfied the pleading requirements set forth in Twombly”).

Here, by contrast, the question is whether Plaintiffs point to affirmative acts that concealed facts that are the basis of their

claim.

53a

succeed on their claim that, by the creation of and

participation in a secret conspiracy, the Defendants

committed an act of concealment that tolls the statute of limitations. At bottom, the first three categories of allegations are simply alleged failures to admit

wrongdoing, and as such, are insufficient to plead affirmative acts under Rule 9(b).

Plaintiffs are therefore left with their argument

that the no-hire clauses in the teaming agreements

are “sham provisions” that constitute affirmative acts

of concealment. See [Doc. No. 1] ¶ 206. In that regard,

Plaintiffs contend that the no-hire clauses are

“shams” because they are “duplicative”; that is, they

“occlude the conspiracy by presenting an explanation

for the industry’s lack of recruitment in which the

teaming agreement tail wags the no-poach dog.” 11

[Doc. No. 202] at 35.

Plaintiffs’ no-poach dog won’t hunt. In Edmonson,

the underlying complaints alleged that the “sham”

business entities were used “for the sole purpose of

receiving the [kickback] payments,” and that those

payments were further disguised by “sham” agreements that set a fee schedule that was not followed

when payments were made, and under which the referring brokers performed no services. Edmonson,

Plaintiffs also allege that the no-hire clauses “misled Plaintiffs” by “creat[ing] the false impression that workers could be

solicited and recruited by rivals who were not working on their

projects.” [Doc. No. I] ¶¶ 206, 13. But the Complaint does not

allege which Defendants entered the teaming agreements containing these no-hire clauses, or that the Plaintiffs were even

aware of such agreements when working for certain Defendants

between 2002 and 2013. See [Doc. No. 1] ¶¶ 19-20. In short,

there are no allegations as to how the Plaintiffs were misled,

and their conclusory claim thus fails to “state the factual allegations that make their belief plausible.” Corder, 57 F.4th at 402.

54a

922 F.3d at 542 (emphasis added). But the no-hire

clauses alleged here have none of the features of the

“sham” entities and instruments in Edmonson. See

Sham, Black’s Law Dictionary (11th ed. 2019) (“A

false pretense or fraudulent show; an imposture. 2.

Something that is not what it seems; a counterfeit.”).

Indeed, these no-hire clauses-whose lawfulness Plaintiffs do not challenge—plainly serve the presumably

valid purpose of prohibiting solicitation for the duration of a teaming agreement. See [Doc. No. 1] ¶ 13

(“These written teaming agreements were used to

cover up the Defendants’ unlawful ‘gentlemen’s

agreement’ with more credibly defensible projectbased limitations.”). Perhaps more importantly, there

is no allegation that these Plaintiffs were “diverted

away” from litigation by, or were even aware of, these

provisions. 12

For these reasons, Plaintiffs have not pleaded facts

sufficient to satisfy the affirmative acts element of

the Fourth Circuit’s fraudulent concealment doctrine,

and the Complaint therefore fails to allege facts sufficient to toll the expiration of the applicable statute of

limitations apparent on the face of the Complaint. 13

Plaintiffs take the position, itself unsupported, that “reliance

[on affirmative acts] is not required for this element of fraudulent concealment.” See [Doc. No. 202] at 36. But a plaintiff’s exposure to an affirmative act and its misleading effect is a core

aspect of this element of the test that certainly has some aspect

of exposure and reliance built into it. See, e.g., Edmonson, 922

F.3d at 549 (noting that the fraudulent concealment doctrine

applies “where the defendant has wrongfully deceived or misled

the plaintiff”) (emphasis added) (quoting English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987)).

Because the Court holds that the Plaintiffs have failed to

plead facts sufficient to support the affirmative acts element,

the Court does not reach the due diligence element.

55a

IV. CONCLUSION

Accordingly, for the above reasons, it is hereby

ORDERED that the Joint Motion to Dismiss, [Doc.

No. 178], be, and the same hereby is, GRANTED;

and this action is dismissed as time-barred under the

applicable statute of limitations; and it is further

ORDERED that the Individual Motions, [Doc. Nos.

180, 181, 184, 187, 189, 191, 193], be, and the same

hereby are, DENIED as moot; and it is further

ORDERED that the Motion for Preliminary Approval of Settlement, [Doc. No. 219], be, and the same

hereby is, DENIED as moot.

56a

APPENDIX C

No. 24-1465

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUSAN SCHARPF; ANTHONY D’ARMIENTO, on

behalf of themselves and all others similarly situated,

Plaintiffs - Appellants,

GENERAL DYNAMICS CORP.; BATH IRON

WORKS CORP.; ELECTRIC BOAT CORP.; GENERAL DYNAMICS INFORMATION TECHNOLOGY,

INC.; HUNTINGTON INGALLS INDUSTRIES,

INC.; NEWPORT NEWS SHIPBUILDING AND DRY

DOCK CO.; INGALLS SHIPBUILDING, INC.; HII

MISSION TECHNOLOGIES CORP.; HII FLEET

SUPPORT GROUP LLC; MARINETTE MARINE

CORPORATION; BOLLINGER SHIPYARDS, LLC;

GIBBS & COX, INC.; SERCO, INC.; CACI INTERNATIONAL, INC.; THE COLUMBIA GROUP, INC.;

THOR SOLUTIONS, LLC; TRIDENTIS, LLC;

FASTSTREAM RECRUITMENT LTD.,

Defendants - Appellees.

______________________

COMMITTEE TO SUPPORT THE ANTITRUST

LAWS,

Amicus Supporting Appellants.

CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA

Amicus Supporting Rehearing Petition

FILED: June 13, 2025

57a

ORDER

The petition for rehearing en banc was circulated

to the full court. No judge requested a poll under Fed.

R. App. P. 40. The court denies the petition for rehearing en banc.

For the Court

/s/ Nwamaka Anowi, Clerk

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