federal doctrine of fraudulent concealment.
In addition to the arguments already considered, defendants also contend that Section 4B should not be extended beyond a literal reading of it since it is substantive rather than procedural and since the antitrust laws are penal rather than remedial in nature.
With reference first to the substantive versus procedural argument, it is not the intention of this Court to embark upon an extensive discussion concerning the meaning and implication of those words in view of the fact that the uniform federal limitation period of Section 4B was enacted about 65 years after the right to recover treble damages was created. It can hardly be said that the right of a plaintiff to a treble damage action is strictly subject to the statute of limitations. Beyond that, the legislative history of the bill would appear to clearly express Congressional intent in this regard.
In connection with questions concerning the effect of the amendment on pending litigation, this discussion took place:
'Mr. MURRAY of Illinois. Then am I correct in assuming that this limitation provided by this amendment is strictly a procedural limitation and has nothing to do with substance? 'Mr. QUIGLEY. It was the specific purpose of the committee in reporting this bill to in no way affect the substantive rights of individual litigants. It is simply a procedural change and suggested with the thought of setting up a uniform statute of limitations. That is the sole purpose.' 101 Cong.Rec. 5131 (1955).
With regard to the question of the inherent nature of antitrust legislation, it appears that a split of authority does exist. See Englander Motors, Inc. v. Ford Motor Co., 293 F.2d 802, 804-807 (6th Cir., 1961) and cases cited therein. The majority view, however, appears to be in favor of the conclusion that treble damage actions, despite the fact that actual damages are not strictly the measure of recovery, are remedial in nature. In any event it is the opinion of this Court that the doctrine of fraudulent concealment has an overriding force and has application in the present situation.
The issue of the construction of Section 4B has recently arisen in various district courts and has also been decided by Appellate Courts.
Although there is conflict within the district court, the Second and Eighth Circuit Courts of Appeal have found in favor of tolling.
This Court finds itself in accord with the views expressed by those Courts which have decided that there does exist a federal doctrine of fraudulent concealment applicable to Section 4B. But, the Court feels compelled to advise plaintiffs that the present decision in no way removes the burden assumed by them to substantiate the allegations of the complaints regarding fraudulent concealment. As stated earlier, the motion did not in any way test the sufficiency of these allegations. It has been true in the past that close scrutiny of charges of fraud sometimes discloses their deficiencies. E.g., Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80 (2d Cir., 1961), cert. denied, 368 U.S. 821, 82 S. Ct. 39, 7 L. Ed. 2d 26; Suckow Borax Mines Consol. v. Borax Consol., 185 F.2d 196 (9th Cir., 1950), cert. denied, 340 U.S. 943, 71 S. Ct. 506, 95 L. Ed. 680 (1951); Foster & Kleiser Co. v. Special Site Sign Co., 85 F.2d 742 (9th Cir., 1936); Gaetzi v. Carling Brewing Co., 205 F.Supp. 615 (E.D.Mich.1962).
The admonition of the Eighth Circuit in Kansas City v. Federal Pac. Elec. Co., is clear and applicable in this regard:
'It is to be remembered that while a plaintiff may by proper allegations of fraudulent concealment initially avoid the time limitation bar of § 4B, it remains for the plaintiff to support such an allegation by competent and probative evidence. If plaintiff fails to carry the burden in this respect, the judicial processes are such as to insure orderly and efficient administration of justice.' 310 F.2d 271, 284 (8th Cir., 1962).
In conclusion, for the reasons above stated, defendants' motions are therefore denied.
The Court is of the opinion, however, that the question presented involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Court's order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b).
The order will so provide.