Russell v. National Mediation Board, 764 F.2d 341 (5th Cir. 1985), withdrawn on other grounds, 775 F.2d 1284 (1985); McDonald v. Schweiker, 726 F.2d 311 (7th Cir. 1983). The same definition has been accorded in the Suits in Admiralty Act, 46 U.S.C. §§ 741, 748, and the Clayton Act, 15 U.S.C. § 16(a); see McDonald; Illinois v. Sperry Rand Corp., 237 F. Supp. 520 (N.D.Ill. 1965). In 1883, not long after the language we consider today was added to our statutory treasury, final judgment in a statute governing the execution of judgments against a revenue officer was taken to mean a judgment after affirmance on appeal. 28 U.S.C. § 2006 (Act Mar. 3, 1863, c. 76, § 12, 12 Stat. 741 (later R.S. 989)); Schell v. Cochran, 107 U.S. (17 Otto) 625, 27 L.Ed. 543 (1883).

As an example, the court compared Fed.R.Civ.P. 54(b) and 28 U.S.C. § 1291, in which finality refers to the pre-appellate proceedings, to "final judgment" in the Clayton Act, § 5(a), 15 U.S.C. § 16(a), which courts have constructed to mean when the time to appeal has run or the judgment has been affirmed by the court of last resort. See, e.g., State of Illinois v. Sperry Rand Corp., 237 F. Supp. 520, 523 (N.D.Ill. 1965); Twin Ports Oil Co. v. Pure Oil Co., Inc., 26 F. Supp. 366, 368 (D.Minn. 1939). The court in McDonald, however, based its conclusion upon the practical consequences of the position advanced by the government.

It is reasonable to assume at the pleading stage that commands not to reveal the conspiracy also carried whatever coercive force the conspiracy could muster as well. Courts have found that similar allegations were sufficient to sustain a charge of fraudulent concealment. Greenhaw v. Lubbock County Beverage Ass'n, 721 F.2d 1019, 1029 (5th Cir. 1983) ("secret agreements and covert price-setting sessions"), overruled on other grounds, International Woodworkers of Am. v. Champion Int'l Corp., 790 F.2d 1174, 1181 (5th Cir. 1986); King King Enters. v. Champlin Petroleum Co., 657 F.2d 1147, 1154 (10th Cir. 1981) (agreement and list of unreliable persons to whom conspiracy should not be revealed), cert. denied, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1982); In re Vitamins, 2000 WL 1475705 at *2 (secret meetings); Illinois v. Sperry Rand Corp., 237 F. Supp. 520, 523-24 (N.D.Ill. 1965) (same). In fact, "Proof of fraudulent concealment is found with any evidence of efforts designed to keep price fixing activities secret."

1995) (Gibson, J.) (bid-rigging scheme constituted affirmative acts under Pinney Dock); Louis Trauth Dairy, 856 F. Supp. at 1237 ("We are satisfied that the allegation of the use of prearranged rigged bids, which were secretly negotiated and subsequently concealed is sufficient to meet the affirmative misconduct requirement of fraudulent concealment."). Accord, Com. of Pa. v. Milk Indus. Management Corp., 812 F. Supp. 500, 504 (E.D.Pa. 1992) (bid-rigging scheme may establish affirmative acts); Bethlehem Steel Corp. v. Fischbach and Moore, Inc., 641 F. Supp. 271, 274-75 (E.D.Pa. 1986) (bid-rigging activity equivalent to affirmative acts); State of Illinois v. Sperry Rand Corp., 237 F. Supp. 520, 523-24 (N.D.Ill. 1965) (specifically agreed-upon, calculated, bids constitute an affirmative act to conceal the conspiracy). Defendants cite Floms Corp., 841 F. Supp. at 212, for the proposition that bid-rigging conspiracies are self-concealing, and do not establish the affirmative acts of concealment under Pinney Dock.

In this context, Congress intended the word "final" to mean that "the time to appeal must have run or the judgment [must have been] affirmed by the court of last resort". Illinois v. Sperry Rand Corp., 237 F. Supp. 520, 523 (N.D.Ill. 1965). Consequently, "[a] judgment appealed from is not a final judgment," Twin Ports Oil Co., 26 F. Supp. at 369, and the entry of a judgment becomes a final judgment only" upon expiration of the time to appeal."

While it is clear that fraudulent concealment of an anti-trust action would toll the four year period of limitation, Allis-Chalmers Mfg. Co. v. Commonwealth Edison Co., 315 F.2d 558 (7th Cir. 1963), plaintiff has failed to allege any acts on the part of defendants which would constitute fraudulent concealment. Plaintiff has cited State of Illinois v. Sperry Rand, 237 F. Supp. 520 (N.D.Ill. 1965) for the proposition that wrongdoers' who cloak their unlawful activities with secrecy should be barred from using a Statute of Limitations defense. On the other hand, it is settled that the mere failure of an injured party to timely discover the existence of a cause of action does not toll the Statute.

Between the extremes are perhaps as many variations as there are judges. (See the procedures outlined in Judge Wills' opinion in State of Illinois v. Sperry Rand Corporation, D.C., 237 F. Supp. 520.) While public policy arguments may abound with regard to the plea of nolo contendere and then be enhanced by civil suits such as those under the Clayton Act, it appears to this Court that the most important and persuasive public policy involves the integrity of the plea itself.

The holdings are quite uniform that such allegations must be stricken. City of Burbank v. General Electric Co., 329 F.2d 825 (9th Cir. 1964); State of Minnesota v. United States Steel Corp., 44 F.R.D. 559 (D.Minn. 1968); State of Illinois v. Sperry Rand Corp., 237 F. Supp. 520 (N.D.Ill. 1965); N.W. Electric Power Coop., Inc. v. General Electric Co., 30 F.R.D. 557 (W.D.Mo. 1961); Polychrome Corporation v. Minnesota Mining Mfg. Co., 263 F. Supp. 101 (S.D.N.Y. 1966); Atlantic City Elec. Co. v. General Electric Co., 207 F. Supp. 620 (S.D.N.Y. 1962). It is said that these pleas are the equivalent of consent decrees under Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a). City of Burbank v. General Electric Co., supra 329 F.2d at p. 831; Polychrome, supra 263 F. Supp. at p. 103.

Since rule 9(b), Fed.R.Civ.P., requires particularity in pleading fraud, plaintiffs submit that the government proceeding must be pled.           On the authority of State of Illinois v. Sperry Rand Corp., 237 F.Supp. 520 (N.D.Ill.1965) and N.W. Elec. Power Cooperative v. General Elec. Co., 30 F.R.D. 557 (W.D.Mo.1961), the court disagrees with plaintiffs and accordingly grants the defendants' motions to strike all allegations in the original or amended complaints relating to the above discussed matters. Plaintiffs may continue to plead that the date of discovery was not until February 10, 1964, but no reference should be made otherwise to the criminal proceedings.

It has made no specific showing on this appeal that, before it posted such bonds, it considered or sought application of section 91 or the federal authorities predating the bond posting and cited by Lemaire (see fn. 8, ante). The Fifth Circuit Court of Appeals there reasoned, inter alia, that the Supreme Court in 1883, in considering 28 United States Code section 2006 regarding execution of judgments against a revenue officer, interpreted the term "final judgment" in an analogous context as meaning a judgment after affirmance on appeal, citing Schell v. Cochran (1883) 107 U.S. 625 [27 L.Ed. 543, 2 S.Ct. 827]; that the same definition and meaning had been followed by the Seventh Circuit in construing the Equal Access to Justice Act ( 28 U.S.C. § 2412(d)) and the Suits in Admiralty Act (46 U.S.C. appen. §§ 741, 748) ( McDonald v. Schweiker (7th Cir. 1983) 726 F.2d 311), and by the Northern District of Illinois in construing the Clayton Act ( 15 U.S.C. § 16(a)) ( State of Illinois v. Sperry Rand Corporation (N.D.Ill. 1965) 237 F. Supp. 520, 523). Additionally, the Supreme Court in a case not involving construction of a statute interpreted the term "final judgment" as meaning judgment after appeal in a discussion of collateral attack on a "final judgment" for purposes of retroactive statutory application.