Can Silence Stop the Clock? How Secrecy May Allow Plaintiffs to Toll the Sherman Act’s Four-Year Statute of Limitations

On September 11, 2025, General Dynamics Corporation (“General Dynamics”), along with other naval manufacturers and defense contractors, petitioned the Supreme Court of the United States to consider whether an unwritten “no-poach” agreement was sufficient to invoke the doctrine of fraudulent concealment and toll the Sherman Anti-Trust Act’s (the “Sherman Act”) four-year statute of limitations.

In May, the Fourth Circuit, in permitting an over-decade-old claim to proceed, held that an unwritten secret agreement was sufficient to toll the Sherman Act’s limitations period, noting that “neither logic nor our precedent supports distinguishing between defendants who destroy evidence . . . and defendants who carefully avoid creating evidence in the first place.” However, that decision conflicts with those of the Fifth, Sixth, and Ninth Circuits—all of which previously found that mere secrecy was not adequate to invoke a fraudulent concealment tolling theory.[1]

The Sherman Act

In 1980, Congress passed the Sherman Act which prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy” that restricts trade or commerce.[2] Eventually, the Sherman Act, by way of the Clayton Antitrust Act of 1914, was amended to include a four-year statute of limitations for any claims arising under it.[3] Normally, the clock starts running when the injury occurs; however, in rare cases such as fraudulent concealment of alleged wrongful conduct, the statute of limitations may be tolled until the fraudulent conduct is discovered.

The Fourth Circuit’s Opinion

By way of background, plaintiffs sued General Dynamics and other naval manufacturers and defense contractors for allegedly maintaining an unwritten “no-poach” agreement whereby the defendants had agreed to refrain from actively recruiting and hiring each other’s naval engineers. According to plaintiffs, defendants “deliberately manufactured” a lack of mobility between manufacturers and contractors, which allowed defendant to “suppress wages through lack of competition.” The catch—plaintiffs worked for defendants, and the alleged injury occurred, over a decade ago, but only in April 2023 did they uncover defendants’ suspected conduct. Consequently, plaintiffs asserted a theory of fraudulent concealment to toll the limitations period.

In rejecting defendants’ contention that “a secret agreement . . . is not an affirmative act of concealment” to invoke the fraudulent concealment doctrine, the Fourth Circuit reasoned that a non-ink-to-paper agreement is no different than “conspiracies in which the conspirators document their antitrust violations and subsequently shred [them] . . . from those in which the conspirators are careful not to write down the evidence of their antitrust violations in the first place.” Ultimately, in a 2-1 decision, the Fourth Circuit held that defendants “avoiding putting anything in writing” was sufficient to constitute an affirmative act to properly allege fraudulent concealment and toll the four-year statute of limitations.

General Dynamic’s Petition

Fourth months after the Fourth Circuit’s opinion, General Dynamics petitioned the Supreme Court to resolve “whether plaintiffs adequately pled that defendants engaged in fraudulent concealment, for the purpose of tolling” the Sherman Act’s limitations period.

General Dynamics takes the position that if secrecy, which is the “quintessential feature of conspiracies”, were sufficient to allege fraudulent concealment, then the limitations period set out in the Sherman Act is effectively transformed from an accrual period to a discovery period. Such a “transformation” it was argued, not only goes against congressional intent, but without “some form of trickery” the use and viability of the fraudulent concealment argument would be expanded beyond extraordinary circumstances. In essence, according to General Dynamics, the Fourth Circuit has allowed future plaintiffs to “virtually always” toll the limitations period by alleging the inherent feature of a conspiracy—secrecy. Therefore, according to General Dynamics, the Fourth Circuit erred in permitting plaintiffs to proceed with their case against defendants.

To date, the Supreme Court has extended respondents’ time to answer General Dynamics’ petition.

Potential Implications

Should the Supreme Court grant certiorari and subsequently uphold the Fourth Circuit's decision, the manner in which a plaintiff may toll the four-year statute of limitations could become much  easier and ultimately render the statute of limitations defense more difficult to maintain in such circumstances. Rather than having to allege some act of destruction or a written agreement—traditional acts of affirmative conduct—plaintiffs would be permitted to meet the affirmative act standard by showing mere silence or secrecy. Thus, companies could be faced with lawsuits for decades-old “secret” anti-competitive conduct.

We will continue to monitor the progress of the petition and provide updates as they develop.

Gianna Dano, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s Newark office, contributed to the preparation of this post.

Endnotes

[1] Thorman v. Am. Seafoods Co., 421 F.3d 1090, 1095 (9th Cir. 2005); Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 447 (6th Cir. 2012); Rx.com v. Medco Health Sols., Inc., 322 F. App’x 394, 397 (5th Cir. 2009).

[2] 15 U.S.C. § 1.

[3] 15 U.S. C. § 15(b).