Commercial Litigation Update

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.