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BETHLEHEM STEEL CORP. v. FISCHBACH & MORRE

July 14, 1986

BETHLEHEM STEEL CORPORATION
v.
FISCHBACH AND MOORE, INC.



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 This civil action arises out of an alleged bid rigging scheme by defendant contractors in connection with bids submitted for electrical construction work to be performed at Bethlehem Steel Corporation's ("Bethlehem") plants in Steelton, Pennsylvania; Johnstown, Pennsylvania; Bethlehem, Pennsylvania; Burns Harbor, Indiana; Sparrows Point, Maryland; and Lackawanna, New York. Bethlehem alleges that starting in the 1960s and continuing indefinitely, defendants engaged in a combination or conspiracy in violation of section 1 of the Sherman Act. Presently pending before me are defendants' motions to dismiss on the grounds that plaintiff's claim is barred by the statute of limitations. For the reasons outlined below, I shall deny these motions.

 Section 4B of the Clayton Act provides that a private damages action arising under the antitrust laws must be "commenced within four years of the date the cause of action accrued" or it "shall be forever barred." 15 U.S.C. § 15b. Plaintiff has alleged no violations which occurred within four years of the date on which plaintiff filed this action. Therefore, unless one of the exceptions to the statute of limitations applies, plaintiff's action must be dismissed as untimely.

 Plaintiff has relied on two distinct exceptions in support of its contention that this action is timely. First, plaintiff has alleged that defendants fraudulently concealed the bid-rigging scheme from plaintiff thereby preventing plaintiff from learning of the scheme and instituting the present action. Plaintiff further contends that the statute of limitations was tolled by the pendency of the government proceeding in the Western District of Pennsylvania. 15 U.S.C. § 16(i). Defendants contend that under the circumstances of this case, plaintiff's reliance on these theories is misplaced.

 In deciding a motion to dismiss, I must accept as true all factual allegations made in the complaint and must resolve all reasonable inferences to be drawn from those allegations in the light most favorable to plaintiff. Dismissal is appropriate only when it appears beyond a doubt that plaintiff can prove no set of facts in support of this claim which would entitled him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Fraudulent Concealment

 In paragraph 25 of the complaint, plaintiff alleges that defendants fraudulently concealed the alleged conspiracy. Plaintiffs have alleged seven separate bases for fraudulent conspiracy all but one of which overlap with the factual basis for the alleged conspiracy itself. The allegations are as follows:

 
25. Plaintiff was prevented from discovering, and could not in the exercise of due diligence have discovered, the aforesaid combination, conspiracy, acts, and practices due to defendants' and their co-conspirators' fraudulent concealment thereof by, upon information and belief, the following actions:
 
a. Defendants and their co-conspirators falsely and fraudulently represented that the bids and other price quotations and terms submitted to plaintiff for electrical construction projects were honest, independent, and competitive bids, quotations, and terms when in fact such bids, quotations, and terms were sham and noncompetitive as a result of defendants' and their co-conspirators' aforementioned bid-rigging activities.
 
b. Defendants and their co-conspirators swore new recruits to secrecy and held meetings and deliberations in secret to prevent plaintiff from discovering the existence of the conspiracy.
 
c. To induce plaintiff into believing that sham bids were bona fide, defendants and their co-conspirators, in preparing sham bids, often asked plaintiff for clarification and supplementation of plaintiff's bid specifications.
 
d. Knowing that bids were sham and noncompetitive, defendants and their co-conspirators nonetheless communicated and caused communication with plaintiff subsequent to the submission of such sham bids and made inquiries of, and caused inquiries to be made to, plaintiff with respect to plaintiff's consideration of the sham bid.
 
e. Defendants and their co-conspirators often arranged for bids to appear comparable and close to induce plaintiff into believing that the bids were bona fide and competitive ...

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