Then on November 30 Marks incorporated DG Consulting, Inc. in Illinois
(¶ 50) to facilitate and conceal Marks' receipt of bribes from Exide
(¶ 51). And about March 1995 Exide (acting through Hawkins, Gauthier
and Pearson) directed Calio to deliver a $10,000 cash payment to Marks
(¶ 59). Exide wire-transferred $10,000 into Calio's checking account
(¶ 60), and in turn Calio, at Gauthier's direction (¶ 54),
withdrew the money in increments and traveled to Illinois to deliver the
money to Marks in cash (¶ 55). Then in April 1995 Calio delivered
another $10,000 to Marks (¶¶ 59-61).
After Calio expressed reservations about continuing to deliver the
bribes to Marks (¶ 63), Gauthier told him that future payments to
Marks would be made by wire transfer to DG Consulting (¶ 65). Exide
made at least six payments of $10,000 each to DG Consulting between
September 6, 1995 and January 31, 1996 (¶ 66). Exide's promises to
pay and its payments of bribes to Marks were intended to increase the
likelihood that Exide would obtain and retain Sears' business (¶
68).*fn6 Those payments to Marks ceased when he was transferred to
another position and was no longer Sears' battery buyer (69).
On March 2, 1999 Sears and Exide announced they had decided to end
their business relationship (¶ 71). On September 7 of that year Exide
sued Sears, seeking over $15 million in damages for the asserted breach
of its battery supply contracts (¶ 72). On November 12 Sears filed a
counterclaim alleging that Exide had paid $20,000 in bribes to Marks and
had induced a breach of Marks' fiduciary duty to Sears (¶ 73). Just a
week later the Wall Street Journal and newswire services published
articles that discussed the Exide — Sears litigation, stating in
part that Sears "accused Exide of making $20,000 in payments to the
retailer's battery buyer over a 2 1/2 year period and receiving
information about a contract" (¶ 74).
Johnson Controls first learned of Exide's bribes to Marks at the time
of those publications — November 19, 1999 (¶ 75). Then on
December 17, 1999 Exide filed an answer to Sears' counterclaim, revealing
that it had made at least six additional payments of $10,000 each to
Marks (¶ 76). Johnson Controls first learned of those additional
bribes to Marks after December 17, 1999 (¶ 77).
Johnson Controls' Act § 2(c) Claim
Exide has moved to dismiss Johnson Controls' claim under the Act on two
grounds: (1) that the claim is time-barred and (2) that Johnson Controls'
allegations do not meet the standing and antitrust injury requirements of
Section 4 of the Clayton Act (15 U.S.C. § 15). Because this Court
finds that Count I is indeed time-barred, this opinion needs to address
only the first of those contentions.
It should be noted initially that statute of limitations defenses
are often inappropriate for resolution on a Rule 12(b)(6) motion to
dismiss because their application most typically depends on factual
determinations (Kauthar SDN BHD v. Steinberg, 149 F.3d 659, 669 (7th
Cir. 1998)). If however a plaintiff alleges facts that show its action is
barred by limitations, as is the case here, "it may plead itself out of
court under a Rule 12(b)(6) analysis" (id. at 670).
Any plaintiff suing for a violation of Act § 2(c) faces the
four year statute of
limitations prescribed by Clayton Act § 4B (15 U.S.C. § 15(b))
(Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 405 (6th Cir.
1999)). Under the Clayton Act, which provides for private actions
stemming from antitrust violations, "a cause of action accrues and the
statute begins to run when a defendant commits an act that injures a
plaintiffs business" (Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), quoted and
reconfirmed in Klehr v. A.O. Smith Corp., 521 U.S. 179, 188, 117 S.Ct.
1984, 138 L.Ed.2d 373 (1997)).*fn7 In the present context Johnson
Controls' claim accrued not later than October 1, 1994, the date on which
Exide began (and Johnson Controls ceased) to supply Sears with automotive
batteries.*fn8 In those terms Johnson Controls' June 26, 2000 filing of
the Complaint was well outside of the four year limitations period. Thus
Johnson Controls' claim under the Act is time-barred unless the
limitations period was sufficiently tolled.
Johnson Controls concedes as much, but it attempts to avoid the bar of
the statute of limitations by invoking the doctrine of fraudulent
concealment. Unfortunately neither party has provided a satisfactory
account of the tolling doctrines that could potentially apply to the
allegations contained in the Complaint under this Circuit's law.*fn9
That shortcoming in the parties' submissions has left this Court to its
own devices in determining the extent to which the limitations period may
be tolled in this case. With that stated, this opinion turns to a
discussion of the tolling doctrines potentially applicable to the facts
alleged in the Complaint.
There are two grounds on which a plaintiff can, after discovering
that it has been injured, delay the running of the period of
limitations: equitable tolling and equitable estoppel (Martin v.
Consultants & Adm'rs, Inc., 966 F.2d 1078, 1101 (7th Cir. 1992) (Posner,
J., concurring), citing Cada v. Baxter Healthcare Corp., 920 F.2d 446,
450-53 (7th Cir. 1990)).*fn10
As for the first of those doctrines, Jackson v. Rockford Hous.
Auth., 213 F.3d 389, 396 (7th Cir. 2000), quoting language from Cada
repeated in Hentosh v. Herman M. Finch Univ. of Health Sciences/Chicago
Med. Sch., 167 F.3d 1170, 1174 (7th Cir. 1999), teaches:
Equitable tolling "permits a plaintiff to avoid
the bar of the statute of limitations if despite
all due diligence he is unable to obtain vital
information bearing on the existence of his claim."
Any plaintiff that invokes equitable tolling to suspend the statute of
limitations must bring suit within a reasonable time after it has
obtained, or by due diligence it could have obtained, the information
necessary to bring suit (Cada, 920 F.2d at 453). Failure to do so will
result in a finding that plaintiffs claim is time-barred (id.).