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INTRODUCTION
Section 4B of the Clayton Act provides a four-year statute of limitation for all civil antitfllst actions brought under the Act.(1) The doctrine of fraudulent concealment, however, allows courts to toll this statute of limitation when the defendant conceals the acts giving rise to the cause of action. This doctrine prevents wrongdoers from unfairly using statutes of limitation to escape sanction.
Although the judiciary originally created this exception for fraud actions,(2) the Supreme Court later expanded the doctrine to be "read into every federal statute of limitation."(3) In antitrust cases, courts have required that the plaintiff plead and prove three elements in order to toll the statute of limitation: (1) the defendant concealed the conduct that constitutes the cause of action; (2) the defendant's concealment prevented the plaintiff from discovering the cause of action; and (3) the plaintiff exercised due diligence in attempting to discover the cause of action.(4) Application of the first element, the concealment requirement, has created uncertainty and division among the courts.(5) Specifically, the courts disagree as to whether the plaintiff must show that the defendant concealed the wrong with affirmative acts beyond those necessary to create an antitrust violation, or whether it is sufficient for the plaintiff to show that the defendant committed a "self-concealing" wrong.(6)
This Note argues that courts should apply a self-concealment standard to section 4B of the Clayton Act rather than require a showing of additional affirmative acts. Part I examines the history of the fraudulent concealment doctrine and its application to antitrust cases. It identifies three different standards used by courts to satisfy the concealment element and finds that courts apply the doctrine inconsistently. Part II analyzes the relationship between the fraudulent concealment doctrine and the self-concealment standard in antitrust cases by examining the judicial development of the doctrine and Congress' intent in enacting section 4B. Part II concludes that the selfconcealment standard is an integral part of the fraudulent concealment doctrine and thus should apply to section 4B cases. Part III addresses the policies behind statutes of limitation generally and section 4B specifically, and finds that the self-concealment standard best achieves these policy goals. This Note concludes that courts should toll the antitrust limitation period when the defendant either has affirmatively concealed his...