Fraudulent Concealment, Self-Concealing Conspiracies, and the Clayton Act

Authors

Richard F. Schwed, University of Michigan Law School

Abstract

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 self-concealment 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 wrong or has committed a wrong that inherently conceals itself.

Recommended Citation

Richard F. Schwed, Fraudulent Concealment, Self-Concealing Conspiracies, and the Clayton Act, 91 Mich. L. Rev. 2259 (1993).
Available at: https://repository.law.umich.edu/mlr/vol91/iss8/19