Carder v. BASF Corp.


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Docket Number: 2003-CA-02778-COA
Oral Argument: 01-12-2005
 

 

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Court of Appeals: Opinion Link
Opinion Date: 06-28-2005
Opinion Author: KING, C.J.
Holding: Affirmed

Additional Case Information: Topic: Price fixing - Statute of limitations - Section 15-1-49 - Fraudulent concealment
Judge(s) Concurring: BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ.
Procedural History: Dismissal
Nature of the Case: CIVIL - OTHER - Antitrust

Trial Court: Date of Trial Judgment: 11-19-2003
Appealed from: WASHINGTON COUNTY CHANCERY COURT
Judge: William Willard
Disposition: Dismissed Plaintiff's claims
Case Number: 021069

  Party Name: Attorney Name:  
Appellant: JANICE CARDER AND LARRY CARDER




HARVEY CURTIS CROWLEY, BRENT HAZARD



 

Appellee: BASF CORPORATION JOHN A. CRAWFORD, PATRICK RYAN BECKETT  

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Topic: Price fixing - Statute of limitations - Section 15-1-49 - Fraudulent concealment

Summary of the Facts: Janice Carder filed an action in the Washington County Chancery Court on behalf of herself and unnamed John Does, alleging price fixing by the defendants in the sale of vitamins and vitamin-related products. Carder filed a second amended complaint, which added her husband as a named plaintiff. In their second amended complaint, the Carders alleged that BASF, a major vitamin and organic chemical distributer, engaged in a conspiracy to fix prices and allocate markets and volume of sales of its products. BASF is a foreign corporation which has sold and distributed vitamins, vitamin premixes, bulk vitamin products and organic chemicals in Mississippi since 1978. BASF filed a motion to dismiss, which argued that the Carders’ action was time barred by the three year statute of limitations. The chancellor dismissed the Carders’ claims, and they appeal.

Summary of Opinion Analysis: The trial court found that the action was barred by section 15-1-49, the three-year statute of limitations. The plaintiffs argue that section (2) of that statute on latent injuries applies and the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered the injury. The Carders allege that they were unable to discover the actions of BASF because of its fraudulent concealment. A plaintiff who seeks to avail himself of the fraudulent concealment doctrine must plead fraudulent concealment, and then prove that some affirmative act or conduct was done by the defendant which prevented discovery of a claim and that due diligence was performed on his part to discover it. The undertaking of a criminal conspiracy is seldom if ever, announced to the public. The efforts of BASF to engage in price fixing was just such a conspiracy. It is therefore subject to the period of limitations for latent injuries, i.e., the period of limitation commences on the date of discovery, or when with due diligence, the injury could have been discovered. The information about BASF was placed in the public domain as early as October 7, 1998. When the information is placed in the public domain, the doctrine of fraudulent concealment ceases to be applicable. Thus the chancellor correctly held that these claims would be time barred since the Cardens did not file the civil action until April 2003.


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