By Amber Davis-Tanner | 33 U. ARK. LITTLE ROCK L. REV. 331 (2010).
The doctrine of fraudulent concealment is intended to ensure that a defendant does not take advantage of his own wrong by permitting the statute of limitations to be tolled when a party has concealed a wrong. Fraudulent concealment is often a concern in antitrust litigation. Courts may toll a statute of limitations when the defendant has fraudulently concealed wrongful conduct.
Courts have established standards to determine when a statute of limitations will be tolled by fraudulent concealment in antitrust litigation. However, courts are split on what the standard should be. Some circuits hold that the plaintiff must prove that the defendant committed an affirmative act separate from the antitrust activity. Other circuits have adopted a standard where the statute of limitations is tolled when affirmative acts have been committed, but acts separate from the antitrust activity are not required when the underlying wrongful conduct is “self-concealing.” At least one circuit has adopted a third standard which requires that the defendant’s concealing activity be completely “separate-and-apart” from the underlying anticompetitive conduct.
This note sets forth a brief summary of the Clayton Act, presents the fraudulent concealment doctrine, and surveys the circuit split concerning which standard should be applied in antitrust cases. The author argues that the “self-concealing” standard threatens to swallow the rule established by the doctrine. The author argues that the “affirmative-acts” standard is a more moderate approach that avoids the breadth of the “self-concealing” approach while still ensuring that wrongdoers will be punished for their unlawful acts. The author asserts that, in antitrust cases, the affirmative-acts approach to fraudulent concealment is the superior standard and explains why courts should apply the affirmative-acts standard in fraudulent concealment cases. The author concludes that the “affirmative-acts” standard provides the correct balance between the policies underlying statutes of limitations and fraudulent concealment.
