SD3 II LLC, a Delaware limited liability company, Plaintiff - Appellant,
BLACK & DECKER (U.S.) INCORPORATED; BLACK & DECKER CORPORATION; MILWAUKEE ELECTRIC TOOL CORPORATION; ONE WORLD TECHNOLOGIES, INCORPORATED; ROBERT BOSCH TOOL CORPORATION; RYOBI TECHNOLOGIES, INCORPORATED, Defendants - Appellees, and DEWALT INDUSTRIAL TOOLS; EMERSON ELECTRIC COMPANY; HITACHI KOKI USA LTD.; PENTAIR CORPORATION; PORTER-CABLE CORPORATION; SKIL POWER TOOLS; PENTAIR WATER GROUP, INCORPORATED; PENTAIR, INCORPORATED; CHANG TYPE INDUSTRIAL CO., LTD.; DELTA POWER EQUIPMENT CORPORATION; HITACHI KOKI CO., LTD.; MAKITA CORPORATION; MAKITA USA, INCORPORATED; OWT INDUSTRIES, INCORPORATED; ROBERT BOSCH GMBH; STANLEY BLACK & DECKER, INCORPORATED; TECHTRONICS INDUSTRIES CO., LTD.; TECHTRONIC INDUSTRIES NORTH AMERICA, INCORPORATED; EMERSON ELECTRIC COMPANY, Defendants. SD3 II, LLC, a Delaware limited liability company, Plaintiff - Appellee,
BLACK & DECKER (U.S.) INCORPORATED; BLACK & DECKER CORPORATION; MILWAUKEE ELECTRIC TOOL CORPORATION; ONE WORLD TECHNOLOGIES, INCORPORATED; RYOBI TECHNOLOGIES, INCORPORATED; ROBERT BOSCH TOOL CORPORATION, Defendants - Appellants, and CHANG TYPE INDUSTRIAL CO., LTD.; DELTA POWER EQUIPMENT CORPORATION; DEWALT INDUSTRIAL TOOLS; EMERSON ELECTRIC COMPANY; HITACHI KOKI CO., LTD.; HITACHI KOKI USA LTD.; MAKITA CORPORATION; MAKITA USA, INCORPORATED; OWT INDUSTRIES, INCORPORATED; PENTAIR CORPORATION; PORTER-CABLE CORPORATION; ROBERT BOSCH GMBH; SKIL POWER TOOLS; STANLEY BLACK & DECKER, INCORPORATED; TECHTRONICS INDUSTRIES CO., LTD.; TECHTRONIC INDUSTRIES NORTH AMERICA, INCORPORATED; PENTAIR WATER GROUP, INCORPORATED; EMERSON ELECTRIC COMPANY; PENTAIR, INCORPORATED, Defendants.
Argued: January 23, 2018
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cv-00191-CMH-IDD)
L. Shaffer, QUINN EMANUEL URQUHART & SULLIVAN, LLP,
Washington, D.C., for Appellants/Cross-Appellees.
David Harkrider, AXINN, VELTROP & HARKRIDER LLP, New
York, New York, for Appellees/Cross-Appellants.
F. Brinkman, Ethan C. Glass, Jonathan G. Cooper, QUINN
EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for
Appellants/Cross-Appellees. Jonathan S. Franklin, David M.
Foster, Washington, D.C., Layne E. Kruse, Eliot Fielding
Turner, NORTON ROSE FULBRIGHT U.S. LLP, Houston, Texas, for
Appellee/Cross-Appellant Robert Bosch Tool Corporation.
Richard B. Dagen, Washington, D.C., John M. Tanski, AXINN,
VELTROP & HARKRIDER LLP, Hartford, Connecticut, for
& Decker (U.S.) Inc. and The Black and Decker
Corporation. Scott W. Hansen, Laura A. Brenner, James N. Law,
REINHART, BOERNER VAN DUREN S.C., Milwaukee, Wisconsin; James
G. Kress, Paul C. Cuomo, BAKER BOTTS LLP, Washington, D.C.,
WILKINSON, AGEE, and WYNN, Circuit Judges.
February 2014, SD3, LLC, and its subsidiary, SawStop LLC
(collectively, "SawStop"), filed an antitrust suit
against a group of Table Saw Manufacturers. SawStop alleged
that the Table Saw Manufacturers had colluded in
contravention of antitrust laws to exclude its proprietary
technology from the market. The acts and economic harm upon
which SawStop's claims are based occurred by 2002. Under
the general rules for claims accrual and limitations,
SawStop's antitrust claims expired four years later, in
2006. See 15 U.S.C. § 15b (establishing a
four-year limitations period for antitrust claims);
Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321, 338 (1971) ("Generally, [an antitrust] cause
of action accrues and the statute [of limitations] begins to
run when a defendant commits an act that injures a
SawStop contended that its suit was timely under the
equitable doctrine of fraudulent concealment. That doctrine
is "read into every federal statute of
limitation[s]" and, in cases where the harm is concealed
from the plaintiff, starts the limitations period "when
the wrong [i]s discovered." GO Comput., Inc. v.
Microsoft Corp., 508 F.3d 170, 177-78 (4th Cir. 2007)
(internal quotation marks omitted). According to SawStop, the
earliest it could have discovered the Table Saw
Manufacturers' collusion was February 2010, thereby
making its 2014 suit timely.
district court disagreed and granted summary judgment to the
Table Saw Manufacturers based on the bar of the statute of
limitations. The district court found that SawStop knew
sufficient facts to identify its injury, as well as the
identities of those who had injured it, in 2002. On appeal,
SawStop asks us to revive its claim. Like the district court,
though, we conclude that SawStop's suit was untimely
because SawStop was on actual notice of its claim by, at
latest, 2003. Accordingly, the statute of limitations expired
no later than 2007. We therefore affirm the judgment of the
this appeal follows the district court's grant of the
Table Saw Manufacturers' motion for summary judgment, we
recount the facts below in the light most favorable to
SawStop, the non-moving party. Williams v. Staples,
Inc., 372 F.3d 662, 667 (4th Cir. 2004) (observing that
on a motion for summary judgment, "the court must draw
all reasonable inferences in favor of the nonmoving
party"). For purposes of our factual recitation, we
assume familiarity with the background set out in our prior
opinion, SD3, LLC v. Black & Decker (U.S.),
Inc., 801 F.3d 412 (4th Cir. 2015), and recount below a
subset of those facts which are relevant to the issues on
Stephen Gass, a patent lawyer by trade, invented Active
Injury Mitigation Technology ("AIMT") in 1999, and
formed SawStop the next year to market AIMT to the table saw
industry, including the Table Saw Manufacturers.
after SawStop debuted AIMT in August 2000, it began licensing
discussions with each of the Table Saw Manufacturers, or
their predecessors. By mid-2001, each of the Table Saw
Manufacturers had expressed interest in licensing AIMT for
use on some of their saws. By January 2002, SawStop and Ryobi
had entered into a preliminary licensing agreement to allow
Ryobi's use of AIMT on some of its table saws. Similar
licensing agreements between SawStop and Black & Decker
or SawStop and Bosch were in process. Despite these initial
signs of success, SawStop's negotiations with each Table
Saw Manufacturer quickly collapsed. By June 2002, each Table
Saw Manufacturer had walked away from the negotiating table,
some for seemingly inconsequential reasons.
early, promising negotiations, SawStop's relationship
with the Table Saw Manufacturers soon became adversarial. For
example, in October 2000, a Black & Decker official
warned Dr. Gass that, if SawStop went to the U.S. Consumer
Product Safety Commission-a government agency that acts as an
industry-wide, standard-setting body-in an effort to mandate
AIMT's inclusion on all table saws, the "industry
would get together and squish" SawStop. J.A. 729. In
November 2000, Dr. Gass demonstrated AIMT at a trade show at
which the Table Saw Manufacturers were in attendance.
Immediately following the demonstration, representatives from
each of the Table Saw Manufacturers left the room for a
private meeting. Dr. Gass later characterized the event by
representing that the Table Saw Manufacturers'
representatives "all got up and went in the other
room to collude." J.A. 2159 (emphasis added).
Gass and SawStop's vice president, David Fanning, who is
also a patent attorney, encountered further hostility, or
alleged collusion, toward AIMT in February 2001. While
attending a meeting of the Defense Research Institute, they
witnessed a presentation given by a Black & Decker
representative, Daniel Lanier, which focused on
"evidentiary issues raised by SawStop." J.A. 2209.
Lanier "spoke about how products liability
plaintiff's lawyers might try to get evidence of SawStop
in and how defense lawyers might try [to] keep evidence of
SawStop out in products liability cases." J.A. 2210.
According to Fanning, the "takeaway from . . .
Lanier's presentation was that if none of the
manufacturers adopt something like [AIMT], then . . . [the
industry could] argue that [AIMT] or something like it is not
viable and [could] use as evidence the fact that nobody's
adopted it." J.A. 2210. In Fanning's words, Lanier
"clearly . . . communicated" in early 2001 that the
industry should boycott AIMT. J.A. 2211.
indeed, SawStop's interactions with the Table Saw
Manufacturers presaged a more formal industry-wide agreement
to work against AIMT. This agreement was the product of a
meeting between the Table Saw Manufacturers from which
SawStop was excluded and the particulars of which SawStop
learned only through discovery in this case. The meeting was
conducted under the auspices of the Power Tool Institute
("PTI, " or the "Institute"), a lobbying
organization that the Table Saw Manufacturers controlled in
substantial part. Following a group vote at the
Institute's 2001 annual meeting, PTI's membership
agreed to pool their test data and to work together to create
a finger-sensing technology to rival AIMT.
two years later, an Institute-backed group, which included
the Table Saw Manufacturers, made a public announcement of
that technology plan. On December 1, 2003, the Antitrust
Division of the Department of Justice (sometimes,
"DOJ") published a "Notice Pursuant to the
National Cooperative Research and Production Act of 1993,
" 15 U.S.C. §§ 4301-4306, which alerted the
public and the market to a "Power Tool Institute Joint
Venture Project" (the "PTI joint venture").
J.A. 187. See generally 68 Fed. Reg. 67, 216 (Dec.
1, 2003). The DOJ notice stated that the Table Saw
Manufacturers, with others, planned to enter into a
PTI-sponsored joint venture, "[t]he nature and
objectives of [which were] the research and development of
technology for power saw blade contact injury avoidance,
including skin sensing systems, blade braking systems, and/or
blade guarding systems." J.A. 187. The notice went on to
say the members of the PTI joint venture would "share
confidential information and intellectual property
rights" with each other, and that any resulting
intellectual property would "be shared among" the
PTI joint venture participants and the Institute's
membership generally. J.A. 187.
was contemporaneously aware of this development, but did
nothing. Fanning "read the Federal Register notice in
2003" and "had a suspicion that something might be
going on." J.A. 3829 (internal quotation marks omitted).
Even so, SawStop never reported its belief of anticompetitive
behavior by the Table Saw Manufacturers to the applicable
regulatory authorities, like the DOJ or the Federal Trade
this period, SawStop's principals suspected a conspiracy
and repeatedly represented, both privately and publicly, that
the Table Saw Manufacturers were colluding against it. In
2004, for instance, Dr. Gass gave an interview to the
Portland, Oregon, newspaper The Oregonian for an
article concerning SawStop and AIMT. In that article, Dr.
Gass made explicit reference to industry-wide collusion,
claiming "saw makers [we]re colluding to suppress"
AIMT. J.A. 877. According to Dr. Gass, the industry had two
motives for such collusion. First, "they don't want
to retrofit production lines." J.A. 877. Second, and
"[m]ore important, . . . they want to avoid the
product[s] liability claims that could result because they
failed to adopt a technology that could have prevented hand
injuries." J.A. 877.
Gass made similar statements as an expert witness in a
products liability suit against Bosch. See generally Kent
v. Robert Bosch Tool Corp., No. 1:06-cv-11555-RWZ (D.
Mass. filed Aug. 30, 2006). There, Dr. Gass offered his
opinion that AIMT was a feasible improvement that Bosch could
have implemented to make its table saws safer. At his
deposition, taken in September 2008, Dr. Gass testified that
AIMT had not been widely adopted by the table saw industry
because he "believe[d] it to be true" that the
Table Saw Manufacturers were "colluding against
SawStop" and AIMT. J.A. 909.
even before Dr. Gass' 2008 Kent deposition, he
sought legal advice to determine what recourse, antitrust or
otherwise, SawStop had against the Table Saw Manufacturers
for their alleged collusion. In 2006, Dr. Gass consulted what
is now the law firm of Quinn Emanuel Urquhart & Sullivan,
LLP ("Quinn Emanuel") to evaluate whether SawStop
had an antitrust claim against the Table Saw Manufacturers
and, if so, to consider whether Quinn Emanuel would take
SawStop's case on a contingency-fee basis.
November 2006 letter, Quinn Emanuel declined SawStop's
request for contingency-fee-based representation, but
indicated that SawStop "may well [have] a good
claim" against the Table Saw Manufacturers. J.A. 3653.
The letter went on to discuss areas of practical concern,
which caused Quinn Emanuel to decline contingency-fee
representation at that time. Among Quinn Emanuel's
concerns were "potential statute of limitations
problems[.]" J.A. 3653 (emphasis added).
Quinn Emanuel's explicit warning regarding
"potential statute of limitations problems, "
SawStop neither brought suit against the Table Saw
Manufacturers nor contacted the DOJ or the FTC to lodge an
antitrust complaint. Instead, SawStop continued to prosecute
its collusion case in the court of public opinion. In that
regard, Dr. Gass continued to testify as an expert witness in
products liability cases against the Table Saw Manufacturers
alleging collusion against SawStop.
plaintiffs in several of the cases in which Dr. Gass
testified on their behalf as an expert witness pled specific
claims of collusion by the Table Saw Manufacturers.
See,e.g., Eddery v. Black & Decker
Corp., No. 1:08-cv-10849-LTS (D. Mass. filed May 23,
2008). For example, paragraph 3 of the nine-page
Eddery complaint alleges that Black & Decker
"colluded with [its] competitors and others in the
industry to keep [certain] alternatives, " like AIMT,
"off the market." Complaint ¶ 3,
Eddery, No. 1:08-cv-10849-LTS. However, Dr. Gass
represented that he never read the pertinent allegations in
the complaint and never inquired of the plaintiff's
counsel concerning those allegations despite testifying to
that precise subject matter. Similarly, Fanning used the
Public Access to Court Electronic Records (PACER) system to
review the dockets of several products liability suits for
evidence of the Table Saw ...