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Statement from Commissioner Maffei on Docket Nos. 16-01, 16-07, 16-10, and 16-11

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Commissioner Daniel B. Maffei concurred in part and dissented in part with the Commission’s decision issued today in Docket Nos. 16-01, 16-07, 16-10, and 16-11. Commissioner Maffei issued a written concurrence and dissent to the Commission’s order, available in the FMC Reading Room.

His statement follows:

“I concur with the Commission’s decision to dismiss the indirect purchaser claims in Docket Nos. 16-07, 16-10, and 16-11 claims for lack of standing. The end-payor, truck center, and auto dealer Complainants in this case admit they are indirect purchasers. However, they make reasonable arguments concerning the modern realities of the shipping industry in attempting to justify their ability to pursue a remedy at the Commission notwithstanding the Commission’s long-standing precedent and analogous precedents. That said, I do believe it would be inappropriate for the Commission to overrule existing Commission and Supreme Court precedent based on the particulars of this case. Indeed, since federal antitrust decisions establish such clear precedent that only direct purchasers have standing to seek reparations for claims of damages, it may require statutory changes to address the issue in order to ensure that such injuries can be remedied in future cases.

I dissent from the majority’s decision to dismiss the claims of the remaining Complainants in Docket No. 16-01. The majority opinion dismisses too easily an important question in this case: is the statute of limitations established in § 41301(a) jurisdictional or is it subject to waiver? As the majority notes, Commission precedent has generally treated the statute of limitations as a jurisdictional requirement not subject to waiver or tolling, but it is not clear that it should be so treated based on text, context, and relevant historical treatment. In my view, this case presents an opportunity for the Commission to reevaluate whether its precedent determining the statute of limitations is jurisdictional is still applicable. Because the claims in this case could possibly be eligible for tolling, the Commission should address the jurisdictional question and whether this case meets the requirements.

Finally, this case brings up a challenging issue for the Commission which remains unaddressed by the majority: does the Commission have jurisdiction over class action suits involving alleged violations of the Shipping Act? On this matter, I concur with the ALJ’s conclusion that the Commission’s general enabling statute and existing regulations do not explicitly authorize class action suits. However, given that the Third Circuit implied the Commission would be the proper venue for the Complainants’ claims when dismissing their federal and state court claims, it seems an open question whether the Commission must allow such class action suits given that it seems there is no other venue for them. Again, the guidance of Congress may be required to determine where similarly situated plaintiffs should bring their class action claims, so that injuries that occur against class action litigants may be adjudicated on their merits.

It is regrettable that the merits of this case will not be considered by the Commission. I hope that this case brings to light some areas of the Shipping Act and the Commission’s jurisprudence that are ripe for clarification so that future parties do not find themselves in the unfortunate position of not having a venue for their potentially valid complaints.”

Daniel B. Maffei is a Commissioner with the U.S. Federal Maritime Commission. The thoughts and comments expressed here are his own and do not represent the position of the Commission.