United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-4086

___________________________

In re: Pre -Filled Propane Tank Antitrust Litigation

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Mario Ortiz; Stephen Morrison; Steven Tseffos

lllllllllllllllllllllPlaintiffs - Appellants

Sean Venezia; Michael S. Harvey; Gregory Ludvigsen; Arthur Hull; Alan

Rockwell; James Halgerson; Thomas R. Clark; Bryce Mander; Alex Chernavsky;

Robert Orr; Eric Blum; Paul Toomey

lllllllllllllllllllllPlaintiffs

William Vincent

lllllllllllllllllllllPlaintiff - Appellant

David McNally; Steven Lutrell; Ken Cramer

lllllllllllllllllllllPlaintiffs

Kevin Dougherty

lllllllllllllllllllllPlaintiff - Appellant
James Ristow; Daniel Kelleher; Richard Pedrick; Dallas May, Jr.; Tom Roberts

lllllllllllllllllllllPlaintiffs

John Gilbert; Mark Stevens; Richard Paradowski

lllllllllllllllllllllPlaintiffs - Appellants

Hanz De Perio

lllllllllllllllllllllPlaintiff

Josh Bartholow

lllllllllllllllllllllPlaintiff - Appellant

Joseph M. Haala; Scott Zuehlke; Wesley H. McCullough; Richard Sanchez;

MaryLou Breed; Jerry Marshall

lllllllllllllllllllllPlaintiffs

Troy Winters; Thomas Gane; Gary Snow; Nicholas Pulli; Allan Disbrow

lllllllllllllllllllllPlaintiffs - Appellants

v.

Ferrellgas Partners, L.P. a limited partnership; Ferrellgas, L.P. a limited

partnership, doing business as Blue Rhino; AmeriGas Propane, L.P. a limited

partnership, doing business as AmeriGas Cylinder Exchange; UGI Corporation, a

corporation; AmeriGas Propane, Inc.; AmeriGas Partners, L.P.

lllllllllllllllllllllDefendants - Appellees

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___________________________

No. 16-4164

___________________________

Robert Orr; Eric Blum; Paul Toomey; William Vincent; David McNally; Steven

Lutrell; Ken Cramer; Kevin Dougherty; James Ristow; Daniel Kelleher; Richard

Pedrick; Dallas May, Jr.; Tom Roberts; John Gilbert; Mark Stevens; Richard

Paradowski; Hanz De Perio; Josh Bartholow; Joseph M. Haala; Scott Zuchlke;

Wesley H. McCullough; Richard Sanchez; MaryLou Breed; Jerry Marshall

lllllllllllllllllllllPlaintiffs - Appellants

v.

Ferrellgas Partners, L.P.; Ferrellgas, L.P.; AmeriGas Partners, L.P.

lllllllllllllllllllllDefendants - Appellees

____________

Appeals from United States District Court 

for the Western District of Missouri - Kansas City

____________

Submitted: February 15, 2018

Filed: June 22, 2018

____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

____________

BENTON, Circuit Judge.

The plaintiffs sued Ferrellgas Partners, L.P., Ferrellgas, L.P. (collectively

“Ferrellgas”), and AmeriGas Partners, L.P., alleging antitrust violations and seeking

relief under federal and state law. The district court granted summary judgment for

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Defendants. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part

and remands in part.

I.

Ferrellgas and AmeriGas are the nation’s largest distributors of pre-filled 1

propane exchange tanks, which come in a standard size. Before 2008, Defendants

filled the tanks with 17 pounds of propane. In 2008, due to rising propane prices,

Defendants reduced the amount in each tank from 17 to 15 pounds, but maintained

the same price. According to the plaintiffs, this “effectively rais[ed] the price charged

for propane in those tanks.”

In 2009, a group of plaintiffs—indirect purchasers who bought tanks from

retailers—filed a class action alleging Defendants conspired to reduce the amount of

propane in the tanks while maintaining the price, in violation of Section 1 of the

Sherman Act and state antitrust and consumer protection laws. In 2010, the plaintiffs

and AmeriGas settled. See In re Pre-Filled Propane Tank Mktg. & Sales Practices

Litig., 2010 WL 2008837 (W.D. Mo. May 19, 2010) (granting preliminary approval

of first amended settlement agreement). Also in 2010, those plaintiffs again sued

Ferrellgas, settling in 2012. (This court refersto those suits collectively as “Propane

I.”) On March 27, 2014, the Federal Trade Commission issued a complaint against

Defendants—settled on January 7, 2015, by consent orders—for conspiring to

artificially inflate tank prices. See In re Ferrellgas Partners, L.P., et al., 2014 WL

1396496 (Mar. 27, 2014).

On May 30, 2014, another group of indirect purchasers (“the Ortiz plaintiffs”)

brought a class action against Defendants, alleging: “Despite their settlements,

Defendants continued to conspire, and rather than resuming competition, maintained

their illegally agreed-upon fill levels, preserving the unlawfully inflated prices that

 Ferrellgas does business as “Blue Rhino.” 1

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their conspiracy had produced,” and “Defendants continued to have regular

communicationsregarding pricing, fill levels, and market allocation until at least late

2010.” They seek injunctive relief and disgorgement for violations of Section 1 of

the Sherman Act. They also seek damages under the antitrust laws of 23 states and

the District ofColumbia—all with statutes allowing indirect-purchaser suits for stateantitrust damages despite Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which

bars those suits for federal-antitrust damages.

The Ortiz class action became part of a multidistrict proceeding that included

a class action with similar allegations by direct purchasers(who bought tanks directly

from Defendants for resale). The direct-purchaser suit seeks federal-antitrust

damages, which the district court dismissed as time-barred. The district court

explained (1) the statute of limitations accrued on August 1, 2008, the latest “all

Defendants began selling fifteen pound tanks”; and (2) new purchases of tanks after

that date did not restart the statute of limitations. In re Pre-Filled Propane Tank

Antitrust Litig., 2015 WL 12791756, at *3 (W.D. Mo. July 2, 2015). This court—en

banc—reversed, holding that “‘each sale to the plaintiff[s]’ in a price-fixing

conspiracy ‘starts the statutory period running again’” and is an “overt act, inflicting

new and accumulating injury.” In re Pre-Filled Propane Tank Antitrust Litig., 860

F.3d 1059, 1067-68 (8thCir. 2017) (en banc) (“Propane En Banc”), cert. denied, 138

S. Ct. 647 (2018), quoting Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997). 

Before this court issued Propane En Banc, the district court made several

rulings in Ortiz. It dismissed as time-barred the indirect purchasers’

state-law-damages claims. The district court ruled that, like direct purchases, new

indirect purchases did not restart the statute of limitations. For the same reason, the

district court dismissed the indirect purchasers’ federal-disgorgement claim. But it

allowed the federal-injunctive claim to proceed.

To address the statute of limitations, the Ortiz plaintiffs moved for leave to

amend to add three new subclasses asserting damages: (1) a six-year statute-of-

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limitationssubclass, for violations of Maine, Vermont, and Wisconsin law; (2) a newpurchaser subclass, for violations of Kansas antitrust law; and (3) a new-purchaser

subclass, for violations of the laws of “Illinois Brick repealer states.” The

new-purchaser subclassesincluded individuals who bought propane tanks for the first

time after March 27, 2011. The Ortiz plaintiffs also proposed another federaldisgorgement claim.

The district court ruled that the amendmentsto add the disgorgement claimand

the new-purchaser subclasses would be futile because the claims are time-barred. 

According to the district court, first-time purchases after March 27, 2011, are

irrelevant because the statute of limitations accrued in August 2008, and—as it

previously concluded—new purchases did not restart the clock. The district court

did, however, rule that the six-year statute-of-limitations subclass raised timely

claims. Filed on October 16, 2015, the Ortiz amended complaint retains the federalinjunctive claim, in addition to asserting the six-year statute-of-limitationssubclass’s

state-law-damages claim.

The district court later dismissed the federal-injunctive claim under Fed. R.

Civ. P. 12(c), concluding (1) the indirect purchasers lack standing, and (2) the

doctrine of laches bars the claim. Meanwhile, on July 21, 2016, another group of

indirect purchasers (“the Orr plaintiffs”) not named in the Ortiz complaint sued

Defendants. The Orr complaint—consolidated into the same multidistrict proceeding

with Ortiz—includes the federal-disgorgement claim and the new-purchaser

subclasses that the Ortiz plaintiffs tried to add to their complaint, along with a

six-year statute-of-limitationssubclass damages claimand a federal-injunctive claim. 

Ferrellgas moved for summary judgment against the Ortiz plaintiffs, arguing

the Propane Irelease barred the claims of the six-year statute-of-limitationssubclass. 

The release says:

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[T]he Releasing Persons hereby fully, finally, and forever release,

relinquish, and discharge the Released Persons from any and all

liabilities, claims, rights, suits, and causes of action, of any kind

whatsoever, that the Releasing Persons may have or may have had . . .

whether known or unknown, suspected or unsuspected, threatened,

asserted, or unasserted . . . that were or could have been sought or

alleged in the Litigation related to the filling, purchase, sale or exchange

of Ferrellgas’s 20-pound propane gas cylinders.

The district court ruled that the release “does not contain the clear language necessary

to constitute a release offuture claims. Thus, the release provision only bars assertion

of claims that had accrued at the time of the release.” In re Pre-Filled Propane Tank

Antitrust Litig., 2016 WL 6963058, at *4 (W.D. Mo. Sept. 2, 2016) (internal citation

omitted). The plaintiffs argued that “their current claims are for post In re Propane

I purchases of propane tanks, and that those purchases could not have accrued into

claims until after the purchases were made, and thus, after the release.” Id. 

The district disagreed, granting Ferrellgassummary judgment, again ruling that

the claims accrued only once—“in August 2008”—and the limitations period did not

restart upon new purchases. The district court also granted summary judgment for

AmeriGas on the basis of standing. Finally, the district court dismissed the Orr

complaint based on its rulings in Ortiz.

The indirect purchasers in Ortiz and Orr appeal. This court reviews the issues

here de novo. Propane En Banc, 860 F.3d at 1063; Montin v. Moore, 846 F.3d 289,

293 (8th Cir. 2017); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.

2011) (en banc).

II.

Alleging a Sherman Act violation, the indirect purchasersseek injunctive relief

requiring Defendants to: (1) not allocate market share; (2) void any existing

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co-packing agreements, not make new co-packing agreements, and not share pricing

information or information about tank-fill levels; and (3) increase the fill levels of the

tanks to 17 pounds of propane. The district court ruled that the indirect purchasers

lack standing to seek injunctive relief. 

“[A]n actual controversy must be extant at all stages of review, not merely at

the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975)

(citation omitted). To have standing to seek injunctive relief,

a plaintiff must show that he is under threat of suffering “injury in fact”

that is concrete and particularized; the threat must be actual and

imminent, not conjectural or hypothetical; it must be fairly traceable to

the challenged action of the defendant; and it must be likely that a

favorable judicial decision will prevent or redress the injury.

Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). “Past exposure to illegal

conduct does not in itself show a present case or controversy regarding injunctive

relief . . . if unaccompanied by any continuing, present adverse effects,” O’Shea v.

Littleton, 414 U.S. 488, 495-96 (1974), or by “a sufficient likelihood that [the

plaintiff] will again be wronged in a similar way,” City of Los Angeles v. Lyons, 461

U.S. 95, 111 (1983).

On the firststanding element, the indirect purchasers argue that the “continued

sale of the propane tanks filled to only fifteen pounds without a corresponding

decrease in price constitutes an ongoing injury in fact.” In re Pre-Filled Propane

Tank Antitrust Litig., 2016 WL 6963059, at *3 (W.D. Mo. Jan. 13, 2016). The

district court agreed: “Paying a supra-competitive price as a result of past

anti-competitive behavior is a continuing effect, sufficient to establish an injury in

fact.” Id. But it concluded that “all three of Plaintiffs’ requested injunctions fail for

lack of redressability.” Id. at *5. 

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Specifically, the district court noted that the January 2015 FTC consent orders

provide the same relief as sought in the first two injunction grounds. See Faibisch

v. University of Minnesota, 304 F.3d 797, 802 (8th Cir. 2002) (“When deciding Rule

12(c) motions . . . courts may rely on matters within the public record.”); Brown v.

Medtronic, Inc., 628 F.3d 451, 459-60 (8th Cir. 2010) (“documents attached to or

incorporated within a complaint are considered part of the pleadings, and courts may

look atsuch documents‘for all purposes,’ Fed.R.Civ.P. 10(c), including to determine

whether a plaintiff has stated a plausible claim”). A plaintiff “is not entitled to

injunctive relief to the extent other existing relief is adequate” and provides

“substantially the same relief.” National Farmers’ Org., Inc. v. Associated Milk

Producers, Inc., 850 F.2d 1286, 1309 (8th Cir. 1988). On appeal, the indirect

purchasers argue that the injunction grounds “exceed[] the scope of that provided for

in the FTC Consent Orders.”

On the first ground—a ban on allocating market share—the district court

focused on how the FTC orders bar Defendants from raising, fixing, maintaining, or

stabilizing prices of the tanks through any means. The FTC orders say:

[Defendants are prohibited from] [e]ntering into, attempting to enter

into, adhering to, participating in, maintaining, organizing,

implementing, enforcing, inviting, offering or soliciting any

combination, conspiracy, agreement, or understanding between or

among [Defendants] and any Competitor to raise, fix, maintain, or

stabilize prices or price levels of Propane Tanks through any means,

including modifying the Fill Level contained in Propane Tanks sold by

[Defendants] and/or its Competitors, or coordinating Communications

to customers of [Defendants] and/or their Competitors.

The indirect purchasers argue: “Even if competitors are enjoined from agreeing to

fix prices and stop doing so, they may still agree to allocate markets, and due to the

resulting lack of competition, have the ability to charge supra-competitive prices

independent of a continuing agreement to do so.”

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The indirect purchasers, however, ignore the “through any means” language

in the FTC orders. In the amended complaint, they allege that market-share allocation

is a means of fixing prices: “AmeriGas and Blue Rhino also agreed to allocate

customers and markets between themselves in furtherance of their collusion to

maintain prices at supracompetitive levels.” As the district court noted, “Plaintiffs

do not allege the existence of a market share allocation agreement divorced from any

allegations of price fixing.” Pre-Filled Propane, 2016 WL 6963059, at *5. Under

the indirect purchasers’ own theory, market-share allocation violatesthe FTC orders’

ban on fixing prices. The first injunction ground does not exceed the scope of the

FTC orders.

On the second ground, the indirect purchasers want Defendants to void any

existing co-packing agreements, refrain from making new co-packing agreements,

and refrain from sharing pricing information or information about tank fill levels. In

the amended complaint, they allege that the co-packing agreements “facilitate[] the

exchange of pricing information between two direct competitors” and “present[]

ample opportunities for conspiratorial communications.” But the FTC orders cover

those issues by prohibiting Defendants from exchanging “Competitively Sensitive

Non-Public Information.” That includes “pricing, pricing strategies, Fill Level

strategies, costs, revenues, margins, output, business and strategic plans, marketing,

customer information and Communications with customers, advertising, promotion

or research and development.”

The indirect purchasers counter, asserting that both the first and second

injunction grounds are necessary because “there exists some cognizable danger of

recurrent violation.” United States v. Borden Co., 347 U.S. 514, 520 (1954) (citation

omitted) (discussing simultaneous use of public and private antitrust injunctions). 

They contend that the “FTC Consent Orders are relatively weak. In essence, they

merely require Defendants to promise not to break the law again.” According to

them, “[d]iscovery could establish, for example, that Defendants have been violating

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the terms of the FTC Consent Orders and the FTC either is unaware or has not been

adequately enforcing the terms ofthe Orders—a problemwhich Plaintiffs would have

no standing to address absent an independent suit.”

In other words, the indirect purchasers believe that Defendants are engaging

in “recurrent violations” of the FTC orders. They focus on how the district court

explained: 

“Past exposure to illegal conduct does not in itself show a present case

or controversy regarding injunctive relief.” O’Shea v. Littleton, 414

U.S. 488, 495 (1974). Thus, Defendants’ allegedly anti-competitive

actionsin 2008 are alone insufficient to establish a present injury in fact,

entitling Plaintiffs to injunctive relief. However, such past exposure is

sufficient if it is accompanied by “continuing, present adverse effects.” 

Id. at 496. Paying a supra-competitive price as a result of past

anti-competitive behavior is a continuing effect, sufficient to establish

an injury in fact.

. . . .

[T]he allegation that Defendants colluded to raise prices and the

allegation that the prices have remained inflated are not legal conclusion

but factual assertions. Accordingly, this Court appropriately accepts

them as true and finds that Plaintiffs have alleged a sufficient injury in

fact.

Pre–Filled Propane Tank Antitrust Litig., 2016 WL 6963059, at *3-4. The indirect

purchasers argue that the district court’s conclusion means that Defendants are

recurrently violating the FTC orders, necessitating private injunctive relief.

True, “the law is clear that public and private antitrust injunctions may coexist

without regard for one another.” Howard Hess Dental Labs. Inc. v. Dentsply Int’l,

Inc., 602 F.3d 237, 249 (3d Cir. 2010), citing Borden, 347 U.S. at 518 (in antitrust

cases, public and private claims for injunctive relief are “designed to be cumulative,

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not mutually exclusive”). “[T]he mere existence of [a government consent order]

does not preclude private injunctive relief. . . . However, the party seeking the

injunction nonetheless has the burden of establishing that such cumulative relief is

needed” through the “cognizable danger of recurrent violation” standard from

Borden. In re Nifedipine Antitrust Litig., 335 F. Supp. 2d 6, 17 (D.D.C. 2004)

(internal quotation marks omitted), citing Borden, 347 U.S. at 518; see also Howard

Hess, 602 F.3d at 249 (“nothing in Borden intimates that a private litigant is relieved

of its evidentiary burden of showing an entitlement to injunctive relief when the

government has already obtained its own injunction.”).

The indirect purchasers, however, must adequately plead that Defendants are,

post-January 2015, conspiring to charge supra-competitive prices, resulting in “some

cognizable danger of recurrent violation” ofthe FTC orders. A complaint must allege

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plausible claim must plead “factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id., quoting Twombly, 550 U.S. at 556. “The

plausibility standard . . . asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id., citing Twombly, 550 U.S. at 556. “A pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action

will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Id., quoting Twombly, 550 U.S. at 555, 557 (citation

omitted). Rather, the facts alleged “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. “As a general rule, a Rule 12(c)

motion for judgment on the pleadings is reviewed under the same standard as a

12(b)(6) motion to dismiss.” Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3

(8th Cir. 2010); see also Cafasso v. General Dynamics C4 Sys., 637 F.3d 1047, 1054

n.4 (9th Cir. 2011) (collecting cases from the Second, Fifth, and Sixth Circuits to

conclude that the Twombly and Iqbal standard applies to Rule 12(c) motions.).

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In Propane En Banc, this court considered whether the direct purchasers

sufficiently alleged “unlawfully high priced sales during the class period” resulting

from a price-fixing conspiracy, an element in determining “whether the amended

complaint adequately pleads a continuing violation sufficient to restart the statute of

limitations.” Propane En Banc, 860 F.3d at 1068 (internal quotation marks omitted). 

The direct purchasers pled (1) “Defendants’ anticompetitive conduct lasted at least

from July 21, 2008 through January 9, 2015,” and (2) “Defendants’ unlawful

communications regarding pricing, fill levels, and market allocation continued until

at least late 2010.” Id. at 1069-70. This court concluded that those allegations were

“naked assertion[s] devoid of further factual enhancement,” Iqbal, 556 U.S. at 678

(internal quotation marks omitted), that do not “raise a right to relief above the

speculative level,” Twombly, 550 U.S. at 555. Propane En Banc, 860 F.3d at 1070. 

Other allegations, however, sufficiently “list[ed] relevant individuals, acts, and

conversations” in 2008 and 2010 to plead “that the conspiracy continued into the

class period.” Id. at 1069-70.

The indirect purchasers emphasize how they plead: (1) “Defendants’

conspiracy is a continuing conspiracy. Both defendants have continued to maintain

the reduced fill levels despite the fact that propane prices have decreased substantially

from their 2008 high”; (2) “Despite their settlements [in Propane I], Defendants

continued to conspire, and rather than resuming competition, maintained their

illegally agreed-upon fill levels, preserving the unlawfully inflated prices that their

conspiracy had produced”; (3) “The conduct of Defendants is continuing and will

continue to impose antitrust injury on class members unless equitable relief is

granted”; and (4) “Prices for propane exchange tanks sold by Defendants have been

fixed, raised, maintained, and stabilized at artificially high, non-competitive levels

throughout each State set forth below.”

These allegations echo those found insufficient in Propane En Banc—that

is—they are “naked assertion[s] devoid of further factual enhancement,” Iqbal, 556

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U.S. at 678 (internal quotation marks omitted), that do not “raise a right to relief

above the speculative level,” Twombly, 550 U.S. at 555. See Propane En Banc, 860

F.3d at 1069-70. Yes, the Ortiz and Orr complaints contain allegations detailing

events in 2008 and through 2010 like those found sufficient in Propane En Banc to

plead “that the conspiracy continued into the class period.” 

But neither those allegations nor others in the complaints “list relevant

individuals, acts, and conversations, providing ‘factual content’ to support “the

reasonable inference that the defendant is liable for the misconduct alleged,” that

Defendants are conspiring to charge supra-competitive prices and are engaging in

“recurrent violations” of the January 7, 2015 consent orders. Id., quoting Iqbal, 556

U.S. at 678. The indirect purchasers have not even adequately pleaded that

Defendants are currently charging supra-competitive prices, let alone a conspiracy. 

The issue here is different than that in Propane En Banc. But Propane En Banc’s

pleading discussion controls. The indirect purchasers inadequately plead an

injury-in-fact.

The indirect purchasers’ inadequate pleading of an injury-in-fact also means

they lack standing to pursue the third injunction ground (not addressed in the FTC

orders)—to increase the fill levels of the tanks to 17 pounds of propane. Even if they

had adequately pled an injury-in-fact, as the district court noted, the parties “agree

that mandating an increase in the amount of propane in the tanks without a mandate

regarding price would not decrease the price per pound of propane tanks.” Pre-Filled

Propane, 2016 WL 6963059, at *5. An increase in the fill level does not mean that

the claimed injury will be redressed. 

The indirect purchasers in Ortiz and Orr lack standing to pursue their

injunctive-relief claims. This court need not address the argument that the district

court erred in ruling that the doctrine of laches bars those claims.

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III.

The indirect purchasers seek disgorgement for violations of Section 1 of the

Sherman Act. Disgorgement is an equitable remedy that provides “a method of

forcing a defendant to give up the amount by which he was unjustly enriched.” FTC

v. Bronson Partners, LLC, 654 F.3d 359, 372 (2d Cir. 2011) (citation and internal

quotation marks omitted). They plead: (1) “As a direct result of their anticompetitive

profits, Defendants have received profits far in excess of those that would have been

received in a competitive market”; (2) “Disgorgement of these profits is necessary to

divest Defendants of the fruits of their wrongful conduct”; and (3) “In the alternative,

Plaintiffs request that Defendants be required to provide class members with propane

equal in value to the fill reductions or the cash equivalent based on then existing

wholesale prices.” The district court dismissed the disgorgement claim as barred by

the statute of limitations.

On appeal, the indirect purchasers contend that because disgorgement is an

equitable remedy, the doctrine of laches, not the statute of limitations, governs 

timeliness. The district court apparently applied the statute of limitations because it

considered the disgorgement claim a federal-antitrust-damages claim. But under

Illinois Brick, only the “overcharged direct purchaser, and not others in the chain of

manufacture or distribution” can sue for antitrust damages under Section 4 of the

Clayton Act, 15 U.S.C. § 15, which provides a private right of action for violations

of Section 1 of the Sherman Act. Illinois Brick, 431 U.S. at 729; Ginsburg, 623 F.3d

at 1233 (citing Illinois Brick to explain: “As indirect purchasers, they may not sue

for damages under the Clayton Act. But indirect purchasers are private parties who

may sue for injunctive relief under § 16 of the Act.”). 

In Illinois Brick, the Supreme Court barred indirect-purchaser suits for federal

antitrust damages, reasoning that those suits “would create a serious risk of multiple

liability for defendants” and “the possibility of inconsistent adjudications.” Illinois

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Brick, 431 U.S. at 730. The Court was also concerned about the “uncertainties and

difficulties in analyzing price and out-put decisions ‘in the real economic world’ . .

. and of the costs to the judicial system and the efficient enforcement of the antitrust

laws of attempting to reconstruct those decisions in the courtroom.” Id. at 731-32.

At the district court, Defendants argued that disgorgement “is a thinly-veiled

attempt to circumvent the long-standing holding of Illinois Brick.” The district court

did not address this issue. But other courts have concluded that Illinois Brick

prohibits indirect purchasers from seeking disgorgement:

Although the Court’s concern [in Illinois Brick] for the complexity of

the damages proceeding is not implicated by a disgorgement action,

permitting disgorgement doesraise the specter of duplicative recoveries. 

Under the Clayton Act, private parties . . . can already pursue direct

purchaser actions for treble damages under § 4. 15 U.S.C. § 15. . . .

Permitting disgorgement under § 16 would provide yet another route to

defendants’ allegedly ill-gotten gains, and would therefore heighten the

possibility that defendants in antitrust actions could be exposed to

multiple liability. While disgorgement would have the additional

benefit of permitting [compensation for] indirect purchasers who are

excluded from recovery under current law, the Supreme Court weighed

this interest against the threat of duplicative recovery and determined

that only direct purchasers have standing under the Clayton Act.

FTC v. Mylan Labs., Inc., 62 F. Supp. 2d 25, 41 (D.D.C. 1999); see also In re

Digital Music Antitrust Litig., 812 F. Supp. 2d 390, 412 (S.D.N.Y. 2011) (“it is

beyond peradventure that indirect purchasers may not employ unjust enrichment to

skirt the limitation on recovery imposed by Illinois Brick . . . . Moreover, there is no

clearly established federal common law of restitution for a federal antitrust violation,

and Plaintiffs do not suggest that the Court create one. Therefore, absent a basis for

restitution in federal law both direct and indirect purchasers may not bring unjust

enrichment claims premised solely on a violation of federal law.”); In re Flonase

Antitrust Litig., 692 F. Supp. 2d 524, 542 (E.D. Pa. 2010) (“The policy of Illinois

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Brick prohibits indirect purchasers from suing the manufacturer to recover any

ill-gotten gains the manufacturer has obtained by violating antitrust laws. . . .

Allowing indirect purchasers to recover and recoup a benefit from the defendant

under an unjust enrichment theory would circumvent the policy choice of Illinois

Brick.”);In re Terazosin Hydrochloride Antitrust Litig., 160 F. Supp. 2d 1365, 1380

(S.D. Fla. 2001) (“Illinois Brick expressed concerns that indirect purchasers actions

would lead to complex apportionment disputes among injured parties, undermine the

efficient enforcement of antitrust laws, or expose defendants to the risk of multiple

liability. The end payors’ unjust enrichment claim raises identical concerns. . . . State

legislatures and courts that adopted the Illinois Brick rule against indirect purchaser

antitrust suits did not intend to allow an end run around the policies allowing only

direct purchasers to recover.”) (internal citations and quotation marks omitted).

This court agrees with those district courts. Here, the indirect purchasers are

trying to use disgorgement to get profits, or “propane equal in value to the fill

reductions or the cash equivalent based on then existing wholesale prices.” Those

requests violate the policy concerns in Illinois Brick. The indirect purchasers cannot

pursue disgorgement, an impermissible attempt to circumvent Supreme Court

precedent. See Brown v. St. Louis Police Dep’t of City of St. Louis, 691 F.2d 393,

396 (8th Cir. 1982) (“We may . . . affirm on any ground supported by the record”).

IV.

The indirect purchasers argue that this court’s holding in Propane En

Banc—that “‘each sale to the plaintiff[s]’ in a price-fixing conspiracy ‘starts the

statutory period running again’”—means that the state-law-damages claims of the

new purchaser subclasses and the six-year statute-of-limitations subclass are not

time-barred. See Propane En Banc, 860 F.3d at 1068, quoting Klehr v. A.O. Smith

Corp., 521 U.S. 179, 189 (1997). This court declines to address that issue, instead

remanding to the district court to consider a threshold issue: assuming timeliness,

whether the state-law-damages claims should remain in federal court.

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Federal courts “possess only that power authorized by Constitution and

statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 

“[I]t is well established—in certain classes of cases—that, once a court has original

jurisdiction over some claims in the action, it may exercise supplemental jurisdiction

over additional claims that are part of the same case or controversy.” Exxon Mobil

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).

But “Congress unambiguously gave district courts discretion in 28 U.S.C. §

1367(c) to dismiss supplemental state law claims when all federal claims have been

dismissed.” Gibson v. Weber, 431 F.3d 339, 342 (8th Cir. 2005). By § 1367(c):

The district courts may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

Here, this court has affirmed the dismissals of this case’s federal claims. And this

case appears to raise “novel or complex” issues of the laws of multiple states. This

court remands to the district court to analyze under § 1367(c) whether it should

exercise supplemental jurisdiction over the state-law claims. See Lapides v. Board

of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 624 (2002) (noting that under §

1367(c)(3), “the DistrictCourt maywellfind that this case, now raising only state-law

issues, should . . . be remanded to the state courts for determination.”). If the district

court decides to exercise supplemental jurisdiction, then this court directs the district

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court to consider the impact of Propane En Banc on the timeliness of the state-law

claims.

*******

The judgment is affirmed in part, and the case remanded for proceedings

consistent with this opinion.

______________________________

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