Almost unanimously, the many judicial conferences and expert panels which have considered discovery in protracted cases recommend containing it within manageable proportions by first narrowing the issues and pruning the complaint through appropriate motions or other pretrial proceedings. On the other hand, the antitrust conspiracy is by nature secretive and hard to establish; plaintiffs are often forced to plead generalities at the outset until some discovery permits them to specify the relationship among their claims.
With both these considerations in mind, I still find it appropriate to dismiss those portions of the Complaint alleging lobbying in furtherance of the antitrust conspiracy. Subsequently, the Court will entertain motions on specific discovery regarding attempts to influence governmental action, with the burden on plaintiffs to demonstrate its relevance and necessity for the prosecution of the remainder of this action. See United States v. Johns-Manville, supra.
STATUTE OF LIMITATIONS
Treble damage actions under the Sherman Act and Clayton Act must be commenced within 4 years "after the cause of action accrued." 15 U.S.C. § 15b. The cause of action accrues from a specific overt act causing damage, rather than from the mere inception of an antitrust conspiracy, Farbenfabriken Bayer, A. G. v. Sterling Drug Co., 153 F. Supp. 589 (D.N.J.1957) aff'd on other grounds, 307 F.2d 210 (3rd Cir., 1962) cert. denied, 372 U.S. 929, 83 S. Ct. 872, 9 L. Ed. 2d 733 (1965). Hence, Schenley concedes that it must show an overt act within four years preceding the Complaint which proximately caused damage.
Defendants would carry this a step further. They argue that Schenley cannot recover at all for acts which occurred more than four years prior to the complaint, and, therefore, that allegation of such acts should be stricken.
At the least, such acts are admissible evidence and proper areas of discovery, within the limits imposed on both discovery and admissibility by other considerations. "The asserted history of the conspiracy and not the scope of plaintiff's damage provides the temporal boundary for the discovery." Hillside Amusement Co. v. Warner Bros., 7 F.R.D. 260 (S.D.N.Y., 1944).
Schenley contends that overt acts within four years past are necessary to start the Statute running anew, but that, once in the courthouse door, it can even recover for damages caused by earlier acts which are part of a continuing conspiracy.
Insofar as such acts are alleged to have caused damage within the last four years, I agree. In the first place, the legislative intent behind Section 4B of the Clayton Act, 15 U.S.C. § 15b, was not so much the expunction of long standing claims as it was the effective enforcement of the Act through a uniform period of limitations throughout the nation which would reduce forum shopping. Westinghouse Electric Corp. v. Pacific Gas & Electric Co., 326 F.2d 575, 580 (9 Cir., 1964) (and authorities cited).
Secondly, the defendants' reference to the so-called "overt act doctrine" in this Circuit is misleading, since the Farbenfabriken Bayer case turned on the absence of any overt act alleged within the period of limitations. Moreover, even within that frame of reference, the opinion by Judge Smith is not very helpful to the defendants since he concluded that the statute of limitations runs "from the commission of the last overt act alleged to have caused damage." 153 F. Supp. at 593. Thus, where the Complaint alleges a conspiracy still ongoing at the commencement of the action, the statute would be no bar under a strict application of this theory. Also distinguishable is the situation in which overt acts were alleged within the statutory period but had caused no new damage, and the last acts causing damage had occurred more than four years past. E.g. Garelick v. Goerlich's Inc., 323 F.2d 854 (6 Cir., 1963).
The Courts have resorted to a variety of metaphysical theories to deal with the conceptual complexities of an antitrust conspiracy in a sizeable industry. They are reviewed and disposed of to the satisfaction of this Court by the excellent and comprehensive opinion of Judge J. Skelly Wright in Delta Theaters, Inc. v. Paramount Pictures, 158 F. Supp. 644 (D.La.1958). I agree with Judge Wright that in the case of a continuing conspiracy, the plaintiff may recover for any damage which occurs within the period of limitations. See authorities cited in Delta Theaters, supra, 158 F.Supp at 649, n. 20, 21. But the thrust of this decision, as I understand it, is not that Schenley cannot plead and prove activities of the conspiracy prior to that period. It merely limits the damage for which Schenley seeks recovery to damages demonstrably arising within the 4 years prior to the Complaint. See Hanover Shoe Inc. v. United Shoe Machinery, 245 F. Supp. 258 (M.D.Pa., 1965); Streiffer v. Seafarers Sea Chest Corp., 162 F. Supp. 602 (E.D.La., 1958); but see Viking Theatre Corp. v. Warner Bros. Pictures, 264 F. Supp. 665 (E.D.Pa., 1967).
Finally, it should be noted that apart from the issue of damages, conspiratorial acts would be relevant to the determination of the prayer for injunctive relief, even though they took place more than four years ago. For all these reasons, the request to strike portions of the Complaint alleging acts more than four years prior to the filing of the Complaint is denied.
Let an appropriate Order be submitted, on notice to all parties.