Appeal from the United States District Court for the Central District of California Mariana R. Pfaelzer, Senior District Judge, Presiding D.C. No. 2:09-cv-05334-F/K/A BP
The opinion of the court was delivered by: M. Smith, Circuit Judge:
April 12, 2012-Pasadena, California
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
Plaintiff-Appellant Hexcel Corporation (Hexcel) sued Defendant-Appellee Ineos Polymers, Inc., formerly known as BP Amoco Polymers, Inc. (BP Amoco) on November 26, 2008 for antitrust injuries it allegedly suffered as the result of a carbon fiber price-fixing scheme, beginning in 1992. To avoid the effect of the applicable four-year statute of limitations, 15 U.S.C. § l5b, Hexcel contends that the statute of limitations was tolled due to fraudulent concealment by BP Amoco. Hexcel contends that because of BP Amoco's fraudulent concealment, it neither knew, nor could have known, of its potential claims until the conclusion of its own internal investigation in February 2001.
Hexcel was aware of, and likely even participated in the alleged carbon fiber price-fixing scheme, throughout the 1990s. Hexcel's involvement in this scheme led to its being subpoened in January 1999, along with other carbon fiber producers BP Amoco, Toray, and Toho, by a federal grand jury that was investigating a possible industry-wide price-fixing conspiracy. Hexcel confirmed its knowledge of widespread anticompetitive practices in its annual Form 10-K disclosures in March 1999. Based upon the overwhelming evidence of Hexcel's knowledge in the record, we hold that Hexcel's claims are time-barred, and we affirm.
I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
Hexcel manufactures prepreg, a product made from carbon fiber. Prepreg is sold to customers who convert it into various composites for use in a wide variety of end products, including commercial aerospace and military applications. Following an acquisition in 1996, Hexcel also became a producer of carbon fiber. Both before and after Hexcel's acquisition, Hex- cel was the largest purchaser of carbon fiber in the United States.
On January 29, 1999, Hexcel received a grand jury subpoena from the Antitrust Division of the United States Department of Justice (DOJ). No later than the date of the receipt of that subpoena, Hexcel learned that the DOJ was investigating an alleged industry-wide antitrust conspiracy in the carbon fiber and prepreg industries, and that the targets of the investigation included Hexcel, BP Amoco, Toray, and Toho. Hexcel retained Skadden, Arps, Slate, Meagher & Flom LLP (Skadden) to represent it in the government's investigation. On March 30, 1999, Hexcel filed a Form 10-K with the United States Securities and Exchange Commission, in which it publicly disclosed that it was the "subject" of a federal grand jury investigation into "the pricing of all manufacturers of carbon fiber and carbon fiber prepreg."*fn1
On July 29, 1999, direct purchasers of carbon fiber class action plaintiffs filed the first of several federal class action lawsuits in the Central District of California against Hexcel, BP Amoco, Toray, Toho, and others, alleging price-fixing and unlawful market allocation under the Sherman Act, 15 U.S.C. § l. Over the next ten months, seven more direct purchasers of carbon fiber filed suit in federal court alleging the same conspiracy.
On January 24, 2003, Hexcel, BP Amoco, and the other defendants amended a joint defense agreement (JDA) originally executed on April 29, 1999. The amended JDA included a tolling provision of potential claims against each other for the duration of the JDA, terminable upon 30 days written notice. On August 13, 2008, BP Amoco ...