United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 16-4086
                      ___________________________

             In re: Pre -Filled Propane Tank Antitrust Litigation

                           ------------------------------

               Mario Ortiz; Stephen Morrison; Steven Tseffos

                    lllllllllllllllllllllPlaintiffs - Appellants

   Sean Venezia; Michael S. Harvey; Gregory Ludvigsen; Arthur Hull; Alan
Rockwell; James Halgerson; Thomas R. Clark; Bryce Mander; Alex Chernavsky;
                    Robert Orr; Eric Blum; Paul Toomey

                           lllllllllllllllllllllPlaintiffs

                                William Vincent

                     lllllllllllllllllllllPlaintiff - Appellant

                David McNally; Steven Lutrell; Ken Cramer

                           lllllllllllllllllllllPlaintiffs

                               Kevin Dougherty

                     lllllllllllllllllllllPlaintiff - Appellant
 James Ristow; Daniel Kelleher; Richard Pedrick; Dallas May, Jr.; Tom Roberts

                            lllllllllllllllllllllPlaintiffs


               John Gilbert; Mark Stevens; Richard Paradowski

                     lllllllllllllllllllllPlaintiffs - Appellants

                                  Hanz De Perio

                             lllllllllllllllllllllPlaintiff

                                 Josh Bartholow

                      lllllllllllllllllllllPlaintiff - Appellant

  Joseph M. Haala; Scott Zuehlke; Wesley H. McCullough; Richard Sanchez;
                      MaryLou Breed; Jerry Marshall

                            lllllllllllllllllllllPlaintiffs

    Troy Winters; Thomas Gane; Gary Snow; Nicholas Pulli; Allan Disbrow

                     lllllllllllllllllllllPlaintiffs - Appellants

                                          v.

     Ferrellgas Partners, L.P. a limited partnership; Ferrellgas, L.P. a limited
  partnership, doing business as Blue Rhino; AmeriGas Propane, L.P. a limited
partnership, doing business as AmeriGas Cylinder Exchange; UGI Corporation, a
         corporation; AmeriGas Propane, Inc.; AmeriGas Partners, L.P.

                     lllllllllllllllllllllDefendants - Appellees




                                          -2-
                         ___________________________

                                 No. 16-4164
                         ___________________________

 Robert Orr; Eric Blum; Paul Toomey; William Vincent; David McNally; Steven
 Lutrell; Ken Cramer; Kevin Dougherty; James Ristow; Daniel Kelleher; Richard
   Pedrick; Dallas May, Jr.; Tom Roberts; John Gilbert; Mark Stevens; Richard
  Paradowski; Hanz De Perio; Josh Bartholow; Joseph M. Haala; Scott Zuchlke;
    Wesley H. McCullough; Richard Sanchez; MaryLou Breed; Jerry Marshall

                       lllllllllllllllllllllPlaintiffs - Appellants

                                           v.

        Ferrellgas Partners, L.P.; Ferrellgas, L.P.; AmeriGas Partners, L.P.

                       lllllllllllllllllllllDefendants - Appellees
                                       ____________

                    Appeals from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: February 15, 2018
                              Filed: June 22, 2018
                                 ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       The plaintiffs sued Ferrellgas Partners, L.P., Ferrellgas, L.P. (collectively
“Ferrellgas”), and AmeriGas Partners, L.P., alleging antitrust violations and seeking
relief under federal and state law. The district court granted summary judgment for


                                           -3-
Defendants. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part
and remands in part.

                                           I.

        Ferrellgas1 and AmeriGas are the nation’s largest distributors of pre-filled
propane exchange tanks, which come in a standard size. Before 2008, Defendants
filled the tanks with 17 pounds of propane. In 2008, due to rising propane prices,
Defendants reduced the amount in each tank from 17 to 15 pounds, but maintained
the same price. According to the plaintiffs, this “effectively rais[ed] the price charged
for propane in those tanks.”

        In 2009, a group of plaintiffs—indirect purchasers who bought tanks from
retailers—filed a class action alleging Defendants conspired to reduce the amount of
propane in the tanks while maintaining the price, in violation of Section 1 of the
Sherman Act and state antitrust and consumer protection laws. In 2010, the plaintiffs
and AmeriGas settled. See In re Pre-Filled Propane Tank Mktg. & Sales Practices
Litig., 2010 WL 2008837 (W.D. Mo. May 19, 2010) (granting preliminary approval
of first amended settlement agreement). Also in 2010, those plaintiffs again sued
Ferrellgas, settling in 2012. (This court refers to those suits collectively as “Propane
I.”) On March 27, 2014, the Federal Trade Commission issued a complaint against
Defendants—settled on January 7, 2015, by consent orders—for conspiring to
artificially inflate tank prices. See In re Ferrellgas Partners, L.P., et al., 2014 WL
1396496 (Mar. 27, 2014).

        On May 30, 2014, another group of indirect purchasers (“the Ortiz plaintiffs”)
brought a class action against Defendants, alleging: “Despite their settlements,
Defendants continued to conspire, and rather than resuming competition, maintained
their illegally agreed-upon fill levels, preserving the unlawfully inflated prices that

      1
          Ferrellgas does business as “Blue Rhino.”

                                          -4-
their conspiracy had produced,” and “Defendants continued to have regular
communications regarding pricing, fill levels, and market allocation until at least late
2010.” They seek injunctive relief and disgorgement for violations of Section 1 of
the Sherman Act. They also seek damages under the antitrust laws of 23 states and
the District of Columbia—all with statutes allowing indirect-purchaser suits for state-
antitrust damages despite Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which
bars those suits for federal-antitrust damages.

       The Ortiz class action became part of a multidistrict proceeding that included
a class action with similar allegations by direct purchasers (who bought tanks directly
from Defendants for resale). The direct-purchaser suit seeks federal-antitrust
damages, which the district court dismissed as time-barred. The district court
explained (1) the statute of limitations accrued on August 1, 2008, the latest “all
Defendants began selling fifteen pound tanks”; and (2) new purchases of tanks after
that date did not restart the statute of limitations. In re Pre-Filled Propane Tank
Antitrust Litig., 2015 WL 12791756, at *3 (W.D. Mo. July 2, 2015). This court—en
banc—reversed, holding that “‘each sale to the plaintiff[s]’ in a price-fixing
conspiracy ‘starts the statutory period running again’” and is an “overt act, inflicting
new and accumulating injury.” In re Pre-Filled Propane Tank Antitrust Litig., 860
F.3d 1059, 1067-68 (8th Cir. 2017) (en banc) (“Propane En Banc”), cert. denied, 138
S. Ct. 647 (2018), quoting Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997).

       Before this court issued Propane En Banc, the district court made several
rulings in Ortiz.       It dismissed as time-barred the indirect purchasers’
state-law-damages claims. The district court ruled that, like direct purchases, new
indirect purchases did not restart the statute of limitations. For the same reason, the
district court dismissed the indirect purchasers’ federal-disgorgement claim. But it
allowed the federal-injunctive claim to proceed.

     To address the statute of limitations, the Ortiz plaintiffs moved for leave to
amend to add three new subclasses asserting damages: (1) a six-year statute-of-

                                          -5-
limitations subclass, for violations of Maine, Vermont, and Wisconsin law; (2) a new-
purchaser subclass, for violations of Kansas antitrust law; and (3) a new-purchaser
subclass, for violations of the laws of “Illinois Brick repealer states.” The
new-purchaser subclasses included individuals who bought propane tanks for the first
time after March 27, 2011. The Ortiz plaintiffs also proposed another federal-
disgorgement claim.

       The district court ruled that the amendments to add the disgorgement claim and
the new-purchaser subclasses would be futile because the claims are time-barred.
According to the district court, first-time purchases after March 27, 2011, are
irrelevant because the statute of limitations accrued in August 2008, and—as it
previously concluded—new purchases did not restart the clock. The district court
did, however, rule that the six-year statute-of-limitations subclass raised timely
claims. Filed on October 16, 2015, the Ortiz amended complaint retains the federal-
injunctive claim, in addition to asserting the six-year statute-of-limitations subclass’s
state-law-damages claim.

      The district court later dismissed the federal-injunctive claim under Fed. R.
Civ. P. 12(c), concluding (1) the indirect purchasers lack standing, and (2) the
doctrine of laches bars the claim. Meanwhile, on July 21, 2016, another group of
indirect purchasers (“the Orr plaintiffs”) not named in the Ortiz complaint sued
Defendants. The Orr complaint—consolidated into the same multidistrict proceeding
with Ortiz—includes the federal-disgorgement claim and the new-purchaser
subclasses that the Ortiz plaintiffs tried to add to their complaint, along with a
six-year statute-of-limitations subclass damages claim and a federal-injunctive claim.

      Ferrellgas moved for summary judgment against the Ortiz plaintiffs, arguing
the Propane I release barred the claims of the six-year statute-of-limitations subclass.
The release says:




                                          -6-
      [T]he Releasing Persons hereby fully, finally, and forever release,
      relinquish, and discharge the Released Persons from any and all
      liabilities, claims, rights, suits, and causes of action, of any kind
      whatsoever, that the Releasing Persons may have or may have had . . .
      whether known or unknown, suspected or unsuspected, threatened,
      asserted, or unasserted . . . that were or could have been sought or
      alleged in the Litigation related to the filling, purchase, sale or exchange
      of Ferrellgas’s 20-pound propane gas cylinders.

The district court ruled that the release “does not contain the clear language necessary
to constitute a release of future claims. Thus, the release provision only bars assertion
of claims that had accrued at the time of the release.” In re Pre-Filled Propane Tank
Antitrust Litig., 2016 WL 6963058, at *4 (W.D. Mo. Sept. 2, 2016) (internal citation
omitted). The plaintiffs argued that “their current claims are for post In re Propane
I purchases of propane tanks, and that those purchases could not have accrued into
claims until after the purchases were made, and thus, after the release.” Id.

       The district disagreed, granting Ferrellgas summary judgment, again ruling that
the claims accrued only once—“in August 2008”—and the limitations period did not
restart upon new purchases. The district court also granted summary judgment for
AmeriGas on the basis of standing. Finally, the district court dismissed the Orr
complaint based on its rulings in Ortiz.

      The indirect purchasers in Ortiz and Orr appeal. This court reviews the issues
here de novo. Propane En Banc, 860 F.3d at 1063; Montin v. Moore, 846 F.3d 289,
293 (8th Cir. 2017); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (en banc).

                                           II.

       Alleging a Sherman Act violation, the indirect purchasers seek injunctive relief
requiring Defendants to: (1) not allocate market share; (2) void any existing

                                          -7-
co-packing agreements, not make new co-packing agreements, and not share pricing
information or information about tank-fill levels; and (3) increase the fill levels of the
tanks to 17 pounds of propane. The district court ruled that the indirect purchasers
lack standing to seek injunctive relief.

       “[A]n actual controversy must be extant at all stages of review, not merely at
the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975)
(citation omitted). To have standing to seek injunctive relief,

      a plaintiff must show that he is under threat of suffering “injury in fact”
      that is concrete and particularized; the threat must be actual and
      imminent, not conjectural or hypothetical; it must be fairly traceable to
      the challenged action of the defendant; and it must be likely that a
      favorable judicial decision will prevent or redress the injury.

Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). “Past exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive
relief . . . if unaccompanied by any continuing, present adverse effects,” O’Shea v.
Littleton, 414 U.S. 488, 495-96 (1974), or by “a sufficient likelihood that [the
plaintiff] will again be wronged in a similar way,” City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983).

       On the first standing element, the indirect purchasers argue that the “continued
sale of the propane tanks filled to only fifteen pounds without a corresponding
decrease in price constitutes an ongoing injury in fact.” In re Pre-Filled Propane
Tank Antitrust Litig., 2016 WL 6963059, at *3 (W.D. Mo. Jan. 13, 2016). The
district court agreed: “Paying a supra-competitive price as a result of past
anti-competitive behavior is a continuing effect, sufficient to establish an injury in
fact.” Id. But it concluded that “all three of Plaintiffs’ requested injunctions fail for
lack of redressability.” Id. at *5.



                                           -8-
       Specifically, the district court noted that the January 2015 FTC consent orders
provide the same relief as sought in the first two injunction grounds. See Faibisch
v. University of Minnesota, 304 F.3d 797, 802 (8th Cir. 2002) (“When deciding Rule
12(c) motions . . . courts may rely on matters within the public record.”); Brown v.
Medtronic, Inc., 628 F.3d 451, 459-60 (8th Cir. 2010) (“documents attached to or
incorporated within a complaint are considered part of the pleadings, and courts may
look at such documents ‘for all purposes,’ Fed.R.Civ.P. 10(c), including to determine
whether a plaintiff has stated a plausible claim”). A plaintiff “is not entitled to
injunctive relief to the extent other existing relief is adequate” and provides
“substantially the same relief.” National Farmers’ Org., Inc. v. Associated Milk
Producers, Inc., 850 F.2d 1286, 1309 (8th Cir. 1988). On appeal, the indirect
purchasers argue that the injunction grounds “exceed[] the scope of that provided for
in the FTC Consent Orders.”

       On the first ground—a ban on allocating market share—the district court
focused on how the FTC orders bar Defendants from raising, fixing, maintaining, or
stabilizing prices of the tanks through any means. The FTC orders say:

      [Defendants are prohibited from] [e]ntering into, attempting to enter
      into, adhering to, participating in, maintaining, organizing,
      implementing, enforcing, inviting, offering or soliciting any
      combination, conspiracy, agreement, or understanding between or
      among [Defendants] and any Competitor to raise, fix, maintain, or
      stabilize prices or price levels of Propane Tanks through any means,
      including modifying the Fill Level contained in Propane Tanks sold by
      [Defendants] and/or its Competitors, or coordinating Communications
      to customers of [Defendants] and/or their Competitors.

The indirect purchasers argue: “Even if competitors are enjoined from agreeing to
fix prices and stop doing so, they may still agree to allocate markets, and due to the
resulting lack of competition, have the ability to charge supra-competitive prices
independent of a continuing agreement to do so.”


                                         -9-
       The indirect purchasers, however, ignore the “through any means” language
in the FTC orders. In the amended complaint, they allege that market-share allocation
is a means of fixing prices: “AmeriGas and Blue Rhino also agreed to allocate
customers and markets between themselves in furtherance of their collusion to
maintain prices at supracompetitive levels.” As the district court noted, “Plaintiffs
do not allege the existence of a market share allocation agreement divorced from any
allegations of price fixing.” Pre-Filled Propane, 2016 WL 6963059, at *5. Under
the indirect purchasers’ own theory, market-share allocation violates the FTC orders’
ban on fixing prices. The first injunction ground does not exceed the scope of the
FTC orders.

       On the second ground, the indirect purchasers want Defendants to void any
existing co-packing agreements, refrain from making new co-packing agreements,
and refrain from sharing pricing information or information about tank fill levels. In
the amended complaint, they allege that the co-packing agreements “facilitate[] the
exchange of pricing information between two direct competitors” and “present[]
ample opportunities for conspiratorial communications.” But the FTC orders cover
those issues by prohibiting Defendants from exchanging “Competitively Sensitive
Non-Public Information.” That includes “pricing, pricing strategies, Fill Level
strategies, costs, revenues, margins, output, business and strategic plans, marketing,
customer information and Communications with customers, advertising, promotion
or research and development.”

      The indirect purchasers counter, asserting that both the first and second
injunction grounds are necessary because “there exists some cognizable danger of
recurrent violation.” United States v. Borden Co., 347 U.S. 514, 520 (1954) (citation
omitted) (discussing simultaneous use of public and private antitrust injunctions).
They contend that the “FTC Consent Orders are relatively weak. In essence, they
merely require Defendants to promise not to break the law again.” According to
them, “[d]iscovery could establish, for example, that Defendants have been violating

                                        -10-
the terms of the FTC Consent Orders and the FTC either is unaware or has not been
adequately enforcing the terms of the Orders—a problem which Plaintiffs would have
no standing to address absent an independent suit.”

       In other words, the indirect purchasers believe that Defendants are engaging
in “recurrent violations” of the FTC orders. They focus on how the district court
explained:

      “Past exposure to illegal conduct does not in itself show a present case
      or controversy regarding injunctive relief.” O’Shea v. Littleton, 414
      U.S. 488, 495 (1974). Thus, Defendants’ allegedly anti-competitive
      actions in 2008 are alone insufficient to establish a present injury in fact,
      entitling Plaintiffs to injunctive relief. However, such past exposure is
      sufficient if it is accompanied by “continuing, present adverse effects.”
      Id. at 496. Paying a supra-competitive price as a result of past
      anti-competitive behavior is a continuing effect, sufficient to establish
      an injury in fact.

      ....

      [T]he allegation that Defendants colluded to raise prices and the
      allegation that the prices have remained inflated are not legal conclusion
      but factual assertions. Accordingly, this Court appropriately accepts
      them as true and finds that Plaintiffs have alleged a sufficient injury in
      fact.

Pre–Filled Propane Tank Antitrust Litig., 2016 WL 6963059, at *3-4. The indirect
purchasers argue that the district court’s conclusion means that Defendants are
recurrently violating the FTC orders, necessitating private injunctive relief.

       True, “the law is clear that public and private antitrust injunctions may coexist
without regard for one another.” Howard Hess Dental Labs. Inc. v. Dentsply Int’l,
Inc., 602 F.3d 237, 249 (3d Cir. 2010), citing Borden, 347 U.S. at 518 (in antitrust
cases, public and private claims for injunctive relief are “designed to be cumulative,

                                          -11-
not mutually exclusive”). “[T]he mere existence of [a government consent order]
does not preclude private injunctive relief. . . . However, the party seeking the
injunction nonetheless has the burden of establishing that such cumulative relief is
needed” through the “cognizable danger of recurrent violation” standard from
Borden. In re Nifedipine Antitrust Litig., 335 F. Supp. 2d 6, 17 (D.D.C. 2004)
(internal quotation marks omitted), citing Borden, 347 U.S. at 518; see also Howard
Hess, 602 F.3d at 249 (“nothing in Borden intimates that a private litigant is relieved
of its evidentiary burden of showing an entitlement to injunctive relief when the
government has already obtained its own injunction.”).

       The indirect purchasers, however, must adequately plead that Defendants are,
post-January 2015, conspiring to charge supra-competitive prices, resulting in “some
cognizable danger of recurrent violation” of the FTC orders. A complaint must allege
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plausible claim must plead “factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id., quoting Twombly, 550 U.S. at 556. “The
plausibility standard . . . asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id., citing Twombly, 550 U.S. at 556. “A pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id., quoting Twombly, 550 U.S. at 555, 557 (citation
omitted). Rather, the facts alleged “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. “As a general rule, a Rule 12(c)
motion for judgment on the pleadings is reviewed under the same standard as a
12(b)(6) motion to dismiss.” Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3
(8th Cir. 2010); see also Cafasso v. General Dynamics C4 Sys., 637 F.3d 1047, 1054
n.4 (9th Cir. 2011) (collecting cases from the Second, Fifth, and Sixth Circuits to
conclude that the Twombly and Iqbal standard applies to Rule 12(c) motions.).


                                           -12-
       In Propane En Banc, this court considered whether the direct purchasers
sufficiently alleged “unlawfully high priced sales during the class period” resulting
from a price-fixing conspiracy, an element in determining “whether the amended
complaint adequately pleads a continuing violation sufficient to restart the statute of
limitations.” Propane En Banc, 860 F.3d at 1068 (internal quotation marks omitted).
The direct purchasers pled (1) “Defendants’ anticompetitive conduct lasted at least
from July 21, 2008 through January 9, 2015,” and (2) “Defendants’ unlawful
communications regarding pricing, fill levels, and market allocation continued until
at least late 2010.” Id. at 1069-70. This court concluded that those allegations were
“naked assertion[s] devoid of further factual enhancement,” Iqbal, 556 U.S. at 678
(internal quotation marks omitted), that do not “raise a right to relief above the
speculative level,” Twombly, 550 U.S. at 555. Propane En Banc, 860 F.3d at 1070.
Other allegations, however, sufficiently “list[ed] relevant individuals, acts, and
conversations” in 2008 and 2010 to plead “that the conspiracy continued into the
class period.” Id. at 1069-70.

       The indirect purchasers emphasize how they plead: (1) “Defendants’
conspiracy is a continuing conspiracy. Both defendants have continued to maintain
the reduced fill levels despite the fact that propane prices have decreased substantially
from their 2008 high”; (2) “Despite their settlements [in Propane I], Defendants
continued to conspire, and rather than resuming competition, maintained their
illegally agreed-upon fill levels, preserving the unlawfully inflated prices that their
conspiracy had produced”; (3) “The conduct of Defendants is continuing and will
continue to impose antitrust injury on class members unless equitable relief is
granted”; and (4) “Prices for propane exchange tanks sold by Defendants have been
fixed, raised, maintained, and stabilized at artificially high, non-competitive levels
throughout each State set forth below.”

     These allegations echo those found insufficient in Propane En Banc—that
is—they are “naked assertion[s] devoid of further factual enhancement,” Iqbal, 556

                                          -13-
U.S. at 678 (internal quotation marks omitted), that do not “raise a right to relief
above the speculative level,” Twombly, 550 U.S. at 555. See Propane En Banc, 860
F.3d at 1069-70. Yes, the Ortiz and Orr complaints contain allegations detailing
events in 2008 and through 2010 like those found sufficient in Propane En Banc to
plead “that the conspiracy continued into the class period.”

       But neither those allegations nor others in the complaints “list relevant
individuals, acts, and conversations, providing ‘factual content’ to support “the
reasonable inference that the defendant is liable for the misconduct alleged,” that
Defendants are conspiring to charge supra-competitive prices and are engaging in
“recurrent violations” of the January 7, 2015 consent orders. Id., quoting Iqbal, 556
U.S. at 678. The indirect purchasers have not even adequately pleaded that
Defendants are currently charging supra-competitive prices, let alone a conspiracy.
The issue here is different than that in Propane En Banc. But Propane En Banc’s
pleading discussion controls. The indirect purchasers inadequately plead an
injury-in-fact.

       The indirect purchasers’ inadequate pleading of an injury-in-fact also means
they lack standing to pursue the third injunction ground (not addressed in the FTC
orders)—to increase the fill levels of the tanks to 17 pounds of propane. Even if they
had adequately pled an injury-in-fact, as the district court noted, the parties “agree
that mandating an increase in the amount of propane in the tanks without a mandate
regarding price would not decrease the price per pound of propane tanks.” Pre-Filled
Propane, 2016 WL 6963059, at *5. An increase in the fill level does not mean that
the claimed injury will be redressed.

       The indirect purchasers in Ortiz and Orr lack standing to pursue their
injunctive-relief claims. This court need not address the argument that the district
court erred in ruling that the doctrine of laches bars those claims.



                                        -14-
                                          III.

       The indirect purchasers seek disgorgement for violations of Section 1 of the
Sherman Act. Disgorgement is an equitable remedy that provides “a method of
forcing a defendant to give up the amount by which he was unjustly enriched.” FTC
v. Bronson Partners, LLC, 654 F.3d 359, 372 (2d Cir. 2011) (citation and internal
quotation marks omitted). They plead: (1) “As a direct result of their anticompetitive
profits, Defendants have received profits far in excess of those that would have been
received in a competitive market”; (2) “Disgorgement of these profits is necessary to
divest Defendants of the fruits of their wrongful conduct”; and (3) “In the alternative,
Plaintiffs request that Defendants be required to provide class members with propane
equal in value to the fill reductions or the cash equivalent based on then existing
wholesale prices.” The district court dismissed the disgorgement claim as barred by
the statute of limitations.

       On appeal, the indirect purchasers contend that because disgorgement is an
equitable remedy, the doctrine of laches, not the statute of limitations, governs
timeliness. The district court apparently applied the statute of limitations because it
considered the disgorgement claim a federal-antitrust-damages claim. But under
Illinois Brick, only the “overcharged direct purchaser, and not others in the chain of
manufacture or distribution” can sue for antitrust damages under Section 4 of the
Clayton Act, 15 U.S.C. § 15, which provides a private right of action for violations
of Section 1 of the Sherman Act. Illinois Brick, 431 U.S. at 729; Ginsburg, 623 F.3d
at 1233 (citing Illinois Brick to explain: “As indirect purchasers, they may not sue
for damages under the Clayton Act. But indirect purchasers are private parties who
may sue for injunctive relief under § 16 of the Act.”).

        In Illinois Brick, the Supreme Court barred indirect-purchaser suits for federal
antitrust damages, reasoning that those suits “would create a serious risk of multiple
liability for defendants” and “the possibility of inconsistent adjudications.” Illinois

                                         -15-
Brick, 431 U.S. at 730. The Court was also concerned about the “uncertainties and
difficulties in analyzing price and out-put decisions ‘in the real economic world’ . .
. and of the costs to the judicial system and the efficient enforcement of the antitrust
laws of attempting to reconstruct those decisions in the courtroom.” Id. at 731-32.

      At the district court, Defendants argued that disgorgement “is a thinly-veiled
attempt to circumvent the long-standing holding of Illinois Brick.” The district court
did not address this issue. But other courts have concluded that Illinois Brick
prohibits indirect purchasers from seeking disgorgement:

      Although the Court’s concern [in Illinois Brick] for the complexity of
      the damages proceeding is not implicated by a disgorgement action,
      permitting disgorgement does raise the specter of duplicative recoveries.
      Under the Clayton Act, private parties . . . can already pursue direct
      purchaser actions for treble damages under § 4. 15 U.S.C. § 15. . . .
      Permitting disgorgement under § 16 would provide yet another route to
      defendants’ allegedly ill-gotten gains, and would therefore heighten the
      possibility that defendants in antitrust actions could be exposed to
      multiple liability. While disgorgement would have the additional
      benefit of permitting [compensation for] indirect purchasers who are
      excluded from recovery under current law, the Supreme Court weighed
      this interest against the threat of duplicative recovery and determined
      that only direct purchasers have standing under the Clayton Act.

FTC v. Mylan Labs., Inc., 62 F. Supp. 2d 25, 41 (D.D.C. 1999); see also In re
Digital Music Antitrust Litig., 812 F. Supp. 2d 390, 412 (S.D.N.Y. 2011) (“it is
beyond peradventure that indirect purchasers may not employ unjust enrichment to
skirt the limitation on recovery imposed by Illinois Brick . . . . Moreover, there is no
clearly established federal common law of restitution for a federal antitrust violation,
and Plaintiffs do not suggest that the Court create one. Therefore, absent a basis for
restitution in federal law both direct and indirect purchasers may not bring unjust
enrichment claims premised solely on a violation of federal law.”); In re Flonase
Antitrust Litig., 692 F. Supp. 2d 524, 542 (E.D. Pa. 2010) (“The policy of Illinois

                                         -16-
Brick prohibits indirect purchasers from suing the manufacturer to recover any
ill-gotten gains the manufacturer has obtained by violating antitrust laws. . . .
Allowing indirect purchasers to recover and recoup a benefit from the defendant
under an unjust enrichment theory would circumvent the policy choice of Illinois
Brick.”); In re Terazosin Hydrochloride Antitrust Litig., 160 F. Supp. 2d 1365, 1380
(S.D. Fla. 2001) (“Illinois Brick expressed concerns that indirect purchasers actions
would lead to complex apportionment disputes among injured parties, undermine the
efficient enforcement of antitrust laws, or expose defendants to the risk of multiple
liability. The end payors’ unjust enrichment claim raises identical concerns. . . . State
legislatures and courts that adopted the Illinois Brick rule against indirect purchaser
antitrust suits did not intend to allow an end run around the policies allowing only
direct purchasers to recover.”) (internal citations and quotation marks omitted).

      This court agrees with those district courts. Here, the indirect purchasers are
trying to use disgorgement to get profits, or “propane equal in value to the fill
reductions or the cash equivalent based on then existing wholesale prices.” Those
requests violate the policy concerns in Illinois Brick. The indirect purchasers cannot
pursue disgorgement, an impermissible attempt to circumvent Supreme Court
precedent. See Brown v. St. Louis Police Dep’t of City of St. Louis, 691 F.2d 393,
396 (8th Cir. 1982) (“We may . . . affirm on any ground supported by the record”).

                                          IV.

       The indirect purchasers argue that this court’s holding in Propane En
Banc—that “‘each sale to the plaintiff[s]’ in a price-fixing conspiracy ‘starts the
statutory period running again’”—means that the state-law-damages claims of the
new purchaser subclasses and the six-year statute-of-limitations subclass are not
time-barred. See Propane En Banc, 860 F.3d at 1068, quoting Klehr v. A.O. Smith
Corp., 521 U.S. 179, 189 (1997). This court declines to address that issue, instead
remanding to the district court to consider a threshold issue: assuming timeliness,
whether the state-law-damages claims should remain in federal court.

                                          -17-
        Federal courts “possess only that power authorized by Constitution and
statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“[I]t is well established—in certain classes of cases—that, once a court has original
jurisdiction over some claims in the action, it may exercise supplemental jurisdiction
over additional claims that are part of the same case or controversy.” Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).

      But “Congress unambiguously gave district courts discretion in 28 U.S.C. §
1367(c) to dismiss supplemental state law claims when all federal claims have been
dismissed.” Gibson v. Weber, 431 F.3d 339, 342 (8th Cir. 2005). By § 1367(c):

      The district courts may decline to exercise supplemental jurisdiction
      over a claim under subsection (a) if—

      (1) the claim raises a novel or complex issue of State law,

      (2) the claim substantially predominates over the claim or claims over
      which the district court has original jurisdiction,

      (3) the district court has dismissed all claims over which it has original
      jurisdiction, or

      (4) in exceptional circumstances, there are other compelling reasons for
      declining jurisdiction.

Here, this court has affirmed the dismissals of this case’s federal claims. And this
case appears to raise “novel or complex” issues of the laws of multiple states. This
court remands to the district court to analyze under § 1367(c) whether it should
exercise supplemental jurisdiction over the state-law claims. See Lapides v. Board
of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 624 (2002) (noting that under §
1367(c)(3), “the District Court may well find that this case, now raising only state-law
issues, should . . . be remanded to the state courts for determination.”). If the district
court decides to exercise supplemental jurisdiction, then this court directs the district

                                          -18-
court to consider the impact of Propane En Banc on the timeliness of the state-law
claims.

                                    *******

      The judgment is affirmed in part, and the case remanded for proceedings
consistent with this opinion.
                       ______________________________




                                      -19-