Full opinion text
MEMORANDUM DECISION AND ORDER WINDER, District Judge. The court heard argument on defendant Atlantic Richfield Company’s (“ARCO”) motion to dismiss or for summary judgment on May 12, 1989. Plaintiff, Sinclair Oil Corporation (“Sinclair”), was represented by Richard W. Giauque, Melvin Gold-stein, and Scott M. Lilja. Defendant, ARCO, was represented by Robert A. Peterson and David L. Roll. Prior to the hearing the court had reviewed the memo-randa and exhibits filed by the parties. The court took the matter under advisement, and now being fully advised as to the facts and the law, the court renders the following memorandum decision and order. BACKGROUND Sinclair filed this lawsuit on July 19,1988 and is seeking treble damages for overcharges allegedly resulting from intentional violations by ARCO of the Economic Stabilization Act of 1970 (ESA), § 210, 12 U.S.C.A. § 1904 note, as incorporated by reference into the Emergency Petroleum Allocation Act of 1973 (EPAA), 15 U.S.C. § 751 et seq., § 754(a)(1). Pursuant to the EPAA, the Cost of Living Council passed pricing regulations which precluded a refiner from charging “a price for a covered product in excess of the maximum allowable price,” 10 C.F.R. § 212.81(a), where “maximum allowable price” was defined as [t]he weighted average price at which the product was lawfully priced in transactions with the class of purchaser concerned on May 15, 1973 computed in accordance with the provisions of § 212.83(a), plus increased product costs and increased non-product costs incurred between the month of measurement and the month of May 1973.... Id. § 212.82. The regulations were complex and comprehensive, setting forth the precise definitions, accounting methods, and subcalculations to be used under the general refiner price rule. The regulations were in effect from August 20, 1973 through January 28, 1981, and were periodically amended. A violation of any of these regulations potentially could result in an overcharge to the purchaser. Any such overcharges were recoverable by the injured purchaser under § 210 of the ESA. A person intentionally charged a price in excess of the maximum allowable price could sue to recover as much as three times the amount of the overcharge , ESA § 210(b). A person unintentionally overcharged “notwithstanding the maintenance of procedures reasonably adapted to the avoidance of such error” could sue to recover the amount of the actual overcharge, id. A specific instance of conduct by the refiner which violates one or more pricing regulations and causes an overcharge creates an ESA cause of action, Lerner v. Atlantic Richfield Co., 731 F.2d 898, 901 (Temp.Emer.Ct.App.1984). See also Go-Tane Service Stations, Inc. v. Clark Oil & Ref. Corp., 798 F.2d 481, 484 (Temp.Emer.Ct.App.1986) cert. denied 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986). “The statute of limitations begins to run when an act with decisive continuing effect causes intitial injury at a given time....” Go-Tane, 798 F.2d at 486; see also CPI Crude, Inc. v. Coffman, 776 F.2d 1546, 1552-53 (Temp.Emer.Ct.App.1985); Oerther v. Pennzoil Co., 763 F.2d 420, 421 (Temp.Emer.Ct.App.1985). The specific violation is not “continuing” for purposes of tolling the statute of limitations, Go-Tane, 798 F.2d at 485; CPI Crude, 776 F.2d at 1552-53; Oerther, 763 F.2d at 421. ARCO has moved to dismiss or for summary judgment on all of Sinclair’s claims on statute of limitations grounds. ARCO asserts that Sinclair’s treble damage claims have a one year statute. Sinclair responds that its claims have a four year limitations period, and that its lawsuit is timely because those statutory periods were tolled under either a fraudulent concealment theory or a class action theory, or both. TREBLE DAMAGE CIAIM LIMITATIONS PERIOD Because the ESA and the EPAA do not contain a specific statute of limitations, we must apply the most closely analogous state statute, CPI Crude, Inc. v. Coffman, 776 F.2d 1546, 1550 (Temp.Emer.Ct.App.1985). Resolution of this issue is a pure question of law. ARCO, relying primarily on Ashland Oil Co. of California v. Union Oil Co. of California, 567 F.2d 984 (Temp.Emer.Ct.App.1977), and Martin Oil Service, Inc. v. Koch Refining Co., 718 F.Supp. 1334 (N.D.Ill.1989), asserts that Sinclair's treble damage action is subject to Utah's one year limitations period for “an action upon a statute for a penalty,” Utah Code Ann. § 78-12-29(2). Sinclair, relying primarily on Carbone v. Gulf Oil Corp., 812 F.2d 1416 (Temp.Emer.Ct.App.1987) and U.S. Oil Co., Inc. v. Koch Ref. Co., Civ. No. 79-C-659 (E.D.Wisc.), contends that the treble damage action is subject to Utah’s four year limitations period for “an action for relief not otherwise provided for by law,” Utah Code Ann. § 78-12-25(2). A. Background. The TECA has addressed but not clearly resolved the question in point. In Ashland Oil Co. of California v. Union Oil Co. of California (1977) the TECA stated that the federal court selecting a state statute of limitations would “accept the state court interpretations of the state’s limitations statute, but the nature of the claims presented will be determined by federal law_” 567 F.2d at 990 (citations omitted). Analyzing the nature of the claim, the court acknowledged § 210’s dual purpose of providing “both remedy for and deterrence against the violation of pricing regulations,” id., but laid emphasis on its deterrent value, citing to portions of the Congressional Record. The TECA pointed to the treble damage claim’s requirement of “more stringent proof of additional elements than that warranting the award of merely compensatory relief,” id., and in a footnote stated that: Section 210 draws a clear distinction between remedial recovery of overcharges and treble damages for intentional violations in the nature of a penalty beyond compensation; and for each claim there is specified a prerequisite not applicable to the other. See Manning v. Univ. of Notre Dame Du Lac, 484 F.2d 501 (TECA 1973). 567 F.2d at 990 n. 12. After this brief analysis, the Ashland court characterized the federal nature of the action as one for a “penalty.” The TECA then considered the applicability of a California statute of limitation for actions “upon a statute for a penalty or forfeiture,” examining California court interpretations of “penalty” as used in their statutes of limitation. The TECA determined that under California law “actions for damages beyond or without reference to actual loss” were actions for a “penalty or forfeiture,” id. at 991, and finding that the treble damages claim fit within this definition, id., applied the penalty statute to bar the plaintiff’s ESA claim. Ten years later, in Carbone v. Gulf Oil Corp., 812 F.2d 1416 (1987), the TECA analyzed the nature of the actual damage claim “in keeping with the policy underlying creation of the federal statutory action,” id. at 1421. Based on legislative history, the court identified dual purposes of deterrence and compensation underlying § 210 actual damage claims, id. The court determined, however, that the basic nature of the actual damage claim was compensatory, stating: The authority to award treble damages, if in the action for damages under Section 210 the overcharge is willful, does not change the compensatory nature of the basic federal statutory action for the single amount of the overcharge under Section 210 to an action for a civil penalty.... 812 F.2d at 1421 (emphasis added). The TECA refused to rule on the nature of the treble damage claim and remanded that issue with a directive to the lower court to determine the issue in light of the federal policies discussed in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1984), and the antitrust cases cited by the Wilson Court in footnote 19. Although Carbone did not expressly overrule Ashland, it clearly indicated the TECA’s discomfort with the earlier ruling. We now examine the Wilson decision and the antitrust cases cited therein. In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1984), the United States Supreme Court characterized actions under 42 U.S.C. § 1983 for the purpose of borrowing an appropriate state statute of limitations. Such characterizations are to be “derived from the elements of the cause of action, and Congress’ purpose in providing it,” id. at 269, 105 S.Ct. at 1943, and are “ultimately a question of federal law,” id. at 270, 105 S.Ct. at 1944. Expounding on this “federal law” approach, the Wilson Court approvingly cited “better reasoned authority” which had treated statute of limitation questions in the antitrust treble damage area “as a matter of federal law”: The problem we address today often arose in treble-damages litigation under the anti-trust laws before Congress enacted a federal statute of limitations.... The question whether antitrust claims were more analogous to penal claims or to claims arising in tort, contract, or on a statute, was treated as a matter of federal law by the better reasoned authority. See e.g. Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80, 83 (CA2) cert. denied, 368 U.S. 821 [82 S.Ct. 39, 7 L.Ed.2d 26] (1961); Fulton v. Loew’s, Inc. 114 F.Supp. 676, 678-682 (Kan.1953); Electric Theater Co. v. Twentieth Century-Fox Film Corp., 113 F.Supp. 937, 941-942, (WD Mo.1953); Wolf Sales Co. v. Rudolph Wurlitzer Co., 105 F.Supp. 506, 509 (Colo.1952). Wilson, 471 U.S. at 269 n. 19, 105 S.Ct. at 1943 n. 19. It was in reaction to this footnote that the TECA in Carbone expressed concern about the Ashland decision and directed trial courts to examine the Wilson decision. We now examine in some detail the “better reasoned” antitrust cases cited by the Wilson Court to see what “treatment as a matter of federal law” entailed in this highly analogous area of law and to better understand the Wilson Court’s approach to the limitations question. The Antitrust “Better Reasoned” Cases. These antitrust cases support a two-step choice of limitations analysis: first, the court looks to federal law to determine the nature of the claim; second, the court selects from the state limitations statute the period “accorded an action of a same or similar nature which arises under the law of the forum.” Wolf Sales Co. v. Rudolph Wurlitzer Co., 105 F.Supp. 506, 508 (D.Colo.1952); see Electric Theater Co. v. Twentieth Century-Fox Film Corp., 113 F.Supp. 937, 941 (W.D.Mo.1953); Fulton v. Loew’s, Inc., 114 F.Supp. 676, 682 (D.Kan.1953); Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 83 (2d Cir.1961). These cases did not spend much time independently analyzing the nature of the federal antitrust claim, as that question had been well-addressed and resolved through Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892), and its progeny. The courts cited the Huntington line of cases, and held that the federal nature of the antitrust claim was compensatory. More effort was expended, however, on determining whether state limitations statutes for “penalty” actions could nonetheless apply to the “compensatory” federal claim if state actions for enhanced damages fell under those “penalty” statutes. Further exploration of both of these analytical steps is helpful. We find the analysis of the nature of the federal claim contained in the Huntington line of cases particularly helpful and relevant to the case at bar. In Huntington v. Attrill, the Supreme Court fully discussed the meaning of “penal” in the context of the international rule against execution of another country’s penal laws. The Court cautioned against “the danger of being misled by the different shades of meaning allowed to the word ‘penal’ in our language,” 146 U.S. at 667, 13 S.Ct. at 227, and determined that “penal” was properly defined strictly: Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon. Statutes giving a private right of action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal. Id. The Court stated that the test for a “penal law” was “whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual,” 146 U.S. at 668, 13 S.Ct. at 228, and approvingly cited cases in which the courts held that statutes giving accumulative damages to the injured party for his own use were not “penal actions.” Id. These cited cases acknowledged that enhanced amounts gave a “penalty” but because it was given “to the party grieved” for “his own use” the cases held the actions to be remedial rather than penal. In Brady v. Daly, 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109 (1899) the Supreme Court applied the Huntington analysis to the antitrust treble damage claim and characterized the claim as non-penal. The Brady Court stated: Where the statute provides in terms, as the one before us does, for a recovery of damages for an act which violates the rights of the plaintiff and gives the right of action solely to him, the fact that it also provides that such damages shall not be less than a certain sum, and may be more, if proved, does not, as we think, transform it into a penal statute. 175 U.S. at 156, 20 S.Ct. at 65. See also Chattanooga F. & P. Works v. Atlanta, 203 U.S. 390, 397, 27 S.Ct. 65, 66, 51 L.Ed. 241 (1906) (“The construction of the phrase ‘suit for a penalty,’ and the reasons for that construction, have been stated so fully by this court that it is not necessary to repeat them.”); Sullivan v. Associated Billposters and Distributors, 6 F.2d 1000, 1009 (2d Cir.1925) (“A statute may be penal in one part and remedial in another. If a statute which is penal in part gives a remedy for an injury to the person injured to the extent that it gives such remedy it is a remedial statute, irrespective of whether it limits the recovery to the amount of actual loss sustained or as cumulative damages as compensation for the injury.... But in so far as the statute authorizes a third person, not the loser, to recover treble damages or the money lost, the statute is pe-nal_” (citations omitted) (emphasis added)); Baush Mach. Tool Co. v. Aluminum Co. of Amer., 63 F.2d 778, 780 (2d Cir.1933) (citations omitted) (“An action for damages under the Anti-trust Laws is not one for a penalty. The suit is between private parties, and the enlargement of the damages does not convert it into a prosecution for a penalty.”). The Brady Court also recognized the “punishment” aspect of the antitrust treble damages, but stated, “Although punishment, in a certain and very limited sense, may be the result of the statute before us so far as the wrongdoer is concerned, yet we think it clear such is not its chief purpose, which is the award of damages to the party who had sustained them....” 175 U.S. at 156, 20 S.Ct. at 65. As seen above, to whom the cause of action is given is fundamental to the federal “penalty” characterization. If an aggrieved individual can sue for actual injuries he sustained, the action, regardless of enhanced “punitive-type” damage provisions, is remedial. Thus, for federal characterization purposes, even if the action is in part intended to deter or punish, the basic compensatory nature of the action is not changed. We now turn to the second aspect of the limitations analysis, the selection of the state limitations period which applies to actions “of a same or similar nature which arise under the law of the forum.” Unfortunately, on this point the cases cited by the Supreme Court reveal two contrasting approaches. The courts in three of the four cases cited, Wolf Sales Co. v. Rudolph Wurlitzer Co., 105 F.Supp. 506 (D.Colo.1952), Electric Theater Co. v. Twentieth Century-Fox F. Corp., 113 F.Supp. 937 (W.D.Mo.1953), and Fulton v. Loew’s, Inc., 114 F.Supp. 676 (D.Kan.1953), followed a somewhat simple “labelling” approach: if the federal nature is non-penal, a state statute of limitations for “penalty” actions cannot apply. This approach evidences a concern that an exploration into the substance of the state claims covered by the limitation statute in order to determine whether they were in fact “of a similar nature” would result in a “state” rather than “federal” characterization of the federal claim. The rationale is most clearly stated by the Electric Theater court: It is true that a federal court will, particularly in diversity cases, apply state court construction to a state-derived cause of action. But when state court construction, even of its own statutes, invades the province of characterization in a field divorced from state regulation, then clearly such an invasion of the federal judicial province is entitled to no consideration. The line of demarcation between statutory construction and characterization is often elusive and distressingly vague. Yet, we cannot ignore the distinction. Although by federal law we are directed to the state statute of limitations in cases of this kind, we do not think that such procedural directive transforms state adjective law into a springboard from which state courts can assert a formative influence on federal substantive law. Regardless of defendants’ protestations to the contrary, to allow an anti-trust action to be characterized as one for a penalty or forfeiture, depending on state court stare decisis, would involve considerably more than “statutory construction” for a limited procedural purpose. 113 F.Supp. at 941. See also Wolf, 105 F.Supp. at 509; Fulton, 114 F.Supp. at 682 (“The cases taking the ‘federal’ approach seem to apply the state statute of limitations to the cause of action given under the Sherman Act as if the construction of that Act by the Supreme Court were a part of it.”) In contrast to these three cases, the court in the other case cited by the Wilson Court, Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80 (2d Cir.1961), took a more complicated “substance” approach: if the federal nature was non-penal, the state “penalty” statute still was examined to see if state law applied it to state actions which the state called “penal” but were really similar in substance to the federal “non-penal” action. In the court’s words: In dealing with federally created claims both federal and state law must sometimes be consulted to determine whether the borrowed period has run. Thus, when a state has established different periods of limitation for different types of action, a federal court enforcing a federally created claim looks first to federal law to determine the nature of the claim and then to state court interpretations of the statutory catalogue to see where the claim fits into the state scheme. 288 F.2d at 83 (emphasis added). Although the meaning of the underlined language is not clear from this brief statement, the Moviecolor court cites to Bertha Bldg. Corp. v. National Theatres Corp., 269 F.2d 785, 788-89 (2d Cir.1959), another anti-trust case, which makes the Movieco-lor court’s intended role of state court interpretation evident. The Bertha court stated: Whether the three year or six year statute is to be applied by the federal court, the latter must accept the statutes as construed and interpreted by the New York courts. It is for them to determine what is meant by the word “penalty” in the three year statute. But the purposes attributable to the federal anti-trust laws must be governed by federal law.... Considered in the light of these principles, the Supreme Court’s decision in Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390 [27 S.Ct. 65, 51 L.Ed. 241 (1906) ] ... is not decisive of this case. There the Supreme Court held that an action for treble damages under the anti-trust laws was not an action for a penalty within the meaning of the federal statute of limitations for penal suits. But the word “penalty” in a federal statute has a different meaning than the same word in the New York statute. 269 F.2d at 788 (footnote omitted). Obviously, the state court determination permitted under this approach is at odds with the approach taken in Wolf, Electric Theater, and Fulton. We see no logical way to reconcile the cases. Fortunately, we do not have to select the intended approach because the outcome in this case is the same under either. We turn now to the case at bar. B. Limitations Analysis. 1. The Federal Nature of § 210 Treble Damage Claims. It is clear that the first step in the limitations analysis is to determine the nature of the § 210 treble damage claim as a matter of federal law. We believe the “penalty” analysis in the Huntington line of cases is applicable here. The antitrust cases are closely analogous to the ESA claim at bar and clearly establish the proper meaning of “penal” or “penalty” in the federal context. If we are to determine whether the ESA claim can be called a federal “penalty statute” this line of cases cannot be ignored. The focus of the federal penalty analysis is primarily on to whom the cause of action is given. The ESA § 210 treble damage action is a private cause of action by the individual who suffered actual injury due to overcharges. Although it is clear that Congress provided enhanced damages in part to deter violations, Ashland, 567 F.2d at 990, the enhanced amount does not change the basic remedial purpose of the underlying action to recover the overcharges suffered. We believe the federal nature of the action is non-penal. The existence of both an “actual damage” claim and a “treble damage” claim under § 210 supports the compensatory result. These separate claims are more accurately described as an action for an unintentional violation made by bona fide mistake, and an action for an intentional violation. The claims have different elements of proof, and allow different recoveries. If an unintentional violation resulting from bona fide mistake occurs, the injured party may sue for his actual damages. If the violation is intentional, the injured party may sue for damages and recover the actual overcharge plus up to twice that amount. In either situation, there must first be an injury to the party suing. Thus, each separate claim falls squarely within the federal “penalty” analysis. Any “punishment” that results from the treble damage award does not so heavily outweigh the compensatory purpose that a non-penal characterization is rendered implausible. The statutory section does not compel the court to award three times the damages if an intentional violation is found. Instead, the court “may” award “an amount not more than three times the amount of the overcharge,” § 210(b)(1). Accordingly, in its exercise of discretion and having considered all of the equities of the case, there is no guarantee that the court would find warranted a damage award greatly in excess of the actual overcharges. In fact, the enhanced amount could be relatively minimal. In such a situation, the “compensatory” purpose would far outweigh the “penal” one, causing us to doubt that a once-and-for-all “penal” characterization of the nature of the treble damage claim would be appropriate. Indeed, a “compensatory” label is far more appropriate for all circumstances as it is certain that the compensatory purpose will always be served. Finally, the argument that Congress intended a penalty in this section is undermined by § 208 of the ESA, entitled “Sanctions; criminal fine and civil penalty.” In that section Congress expressly used a “penalty” label and statutorily set the amount of punishment, giving no discretion to the court. 12 U.S.C.A. § 1904 note. Our approach to characterization of the claim was not taken by either of the parties in this case, nor by the TECA in Ashland. We believe, however, that after Carbone, this approach is correct. Other district courts ruling on the issue after Carbone have not approached the issue as we have. Therefore, we now briefly discuss the post-Carbone district court case upon which ARCO has primarily relied for its argument that the treble damage claim is one for a penalty, Martin Oil Service, Inc. v. Koch Refining Co., 718 F.Supp. 1334 (N.D.Ill.1989), and respectfully voice our disagreement with it. The Martin Oil court determined that “punitive damage claims brought pursuant to § 210 ... are more analogous to a penalty than are antitrust treble damages,” and applied the two year Illinois statute of limitations for penalties. Id. 718 F.Supp. at 1363-64. The court portrayed the ESA as being more punitive than the antitrust action because: (1) the ESA treble damages are only available if the violation was intentional, while antitrust treble damages are compulsory regardless of mental state, id. at 1362; (2) the court is given discretion in the amount of the damages, presumably thus being better able to match the “punishment” with the evilness of the violation, id. at 1363; and (3) the antitrust damages are required to fully compensate the antitrust plaintiff because proving actual damages resulting from price-fixing is extremely difficult, id. at 1363. In making these distinctions, the court clearly believed the “punishment” rendered through the ESA treble damage claim was a sufficient basis for calling the claim a “penalty” action. We believe the Martin Oil court’s analysis is flawed, primarily due to the court’s failure to recognize and deal with the Huntington line of cases. As a result, the Martin Oil court attempts to distinguish the ESA claim from the antitrust claim on points that played no role in the characterization of the antitrust claims as “non-penal.” The antitrust claim characterization was solidly based on the historical federal definition of “penalty,” the critical factor being to whom the cause of action was given. Therefore, to the extent that the Martin Oil court’s distinctions between the ESA and anti-trust claims are valid, they are distinctions that do not affect the characterization. We also are unconvinced that these distinctions significantly separate the antitrust action from the ESA claim. For instance, the Martin Oil court asserts that the antitrust treble award, unlike the ESA treble award, “compensates” for the difficulty of proving actual damages. We have found no suggestion of this intended purpose in the antitrust cases. Instead, the antitrust cases make clear that the enhanced award was primarily intended as an enforcement tool to stimulate “private initiative and diligence,” see e.g. Mechanical Contractors Bid Depository v. Christiansen, 352 F.2d 817, 821 (10th Cir.1965), and to deter violators and others from future illegal acts, see e.g. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 131, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969) (“[t]he purpose of giving private parties treble damage ... remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws”). Further, to the extent a difficulty of proof exists, courts have recognized it and have dealt with it by imposing a somewhat lenient standard of proof for damages actually suffered, see e.g. Zenith v. Hazeltine, 395 U.S. at 123-24, 89 S.Ct. at 1576-77 (1969); E.J. Delaney Corp. v. Bonne Bell, Inc., 525 F.2d 296, 303 (10th Cir.1975); Rosebrough Monument Co. v. Memorial Park Cemetery Ass’n, 666 F.2d 1130, 1146 (8th Cir.1981); City of Mishawaka, Inc. v. American Elec. Power Co., Inc., 616 F.2d 976, 987 (7th Cir.1980) cert. denied 449 U.S. 1096, 101 S.Ct. 892, 66 L.Ed.2d 824 (1981). We doubt the courts would have made this accommodation if Congress intended the treble damage provision to rectify a difficulty of proof. We also note that the antitrust action allows proof of “damages” in the ordinary sense — a plaintiff can recover for any damages which he can show were caused by the price-fixing — while the ESA action limits the remedy to the difference between what the purchaser was charged and what he legally should have been charged. The ESA remedy forecloses the recovery of any other provable damages which may have resulted from the overcharge. Thus, the antitrust actual damages may compensate more fairly than the ESA actual damages do. This weakens the argument that an enhanced damage amount is more necessary to compensate the antitrust plaintiff than the ESA plaintiff. We also question the Martin Oil court’s theory that ESA § 210 is more like a “penalty” than the antitrust action because ESA limits treble damages to intentional behavior, reflecting a decision to “punish” only “bad” violators, while the antitrust remedy broadly applies treble damages to all antitrust violations, presumably removing a “punishment” motive. “Penalties” are indeed fashioned to “punish” individuals for committing socially undesirable acts. They do not, however, by definition require an “evil” state of mind. Many penal statutes impose strict liability if the determination is made that the act itself is unacceptable. Therefore, it could be argued that the antitrust treble damages were also intended to punish, perhaps because Congress believed the societal effects flowing from restraint of trade are serious enough to warrant punishment of those who conduct business oblivious to the anticompetitive effect of their actions. Finally, even if one views the ESA treble damage action as linked to “bad” behavior, we believe its joint remedial and “punitive” aspects make it more similar to a “compensatory” action in which punitive damages are available, than to a “penalty” action. The ESA action for intentional violation is only given to injured individuals, who will recover their actual damages and an additional amount up to treble the overcharge should the court in its discretion determine that the circumstances warrant it. These circumstances will include the nature of the defendant’s behavior. Similarly, punitive damages are available in some compensatory actions when the defendant’s actions causing actual damage were sufficiently egregious. It is well established that punitive damages are not an independent cause of action, but a remedy. Accordingly, there are not statutes of limitation separately applicable to causes of action because the plaintiffs have requested punitive damages, or to the punitive damage amounts themselves. The punitive damage remedy expires with the underlying cause of action, no sooner and no later. We respectfully disagree with the Martin Oil decision. We believe that the historical federal “penalty” analysis is material to determining the federal nature of ESA § 210, and that under that analysis the nature of the treble damage claim is “remedial” or “compensatory” rather than “penal” as a matter of federal law. 2. Selection of the State Statute. Because the approach intended by the Wilson Court is unclear, we analyze the selection issue in two ways. First, under the approach of the Wolf, Electric Theater, and Fulton antitrust cases cited by the Wilson Court, our determination that the ESA claim is not penal forecloses application of the Utah one year limitation period for “an action upon a statute for a penalty,” Utah Code Ann. 78-12-29(2) (1953). There being no specific tort statute more closely analogous to the claim, Utah’s four year statute of limitations for “an action for relief not otherwise provided for by law,” Utah Code Ann. § 78-12-25(2) (1953), is the applicable statute. Under the second approach, supported by the Moviecolor case, our “non-penal” determination does not automatically foreclose application of Utah’s “penalty” statute, Utah Code Ann. 78-12-29(2). Instead, we must determine how Utah law defines “an action upon a statute for a penalty” and then see whether that definition includes otherwise remedial or compensatory actions which allow enhanced damages. Sinclair has cited us to Christensen v. Paramount Pictures, 95 F.Supp. 446 (D.Utah 1951), in support of its position that § 210 treble damage claims are not “penal” under Utah law. There, the Utah federal district court was determining whether Utah Code Annotated § 104-2-26(2) (1943), which provided a one year limitations period for “an action upon a statute for a penalty or forfeiture where the action is given to an individual, or to an individual and the state,” applied to treble damage claims under the Sherman and Clayton Antitrust Acts. In ruling that it did not, the court stated, The word “penalty” covers a whole range of meanings. At one extreme it may mean a punishment imposed upon an offender against the criminal laws. At the other, it may mean simply the means by which a private right is made secure. It is the judgment of this court that the Utah statute uses the word in the former sense and that the treble damage sanction in the anti-trust laws was intended primarily to protect private rights. Id. at 449-50 (emphasis added). The limitations provision at issue in this case is a successor to the 1943 provision. Passed in 1951 and still in effect, the language of Utah Code Annotated § 78-12-29(2) is identical to the 1943 provision. Like the 1943 law, the 1951 version applies to “an action upon a statute for a penalty or forfeiture where the action is given to the individual, or to an individual and the state.” Given the lack of Utah case law defining “an action upon a statute for a penalty,” we see no reason to depart from the analysis or conclusion of the Christensen court. We hold that the Utah “penalty” statute, Utah Code Ann. § 78-12-29(2), was not intended to apply to remedial actions which allow enhanced damages to the injured individual. Accordingly, § 78-12-29(2) is not applicable to plaintiffs ESA § 210 treble damage claim. As a result, the outcome in this case is the same under both the Moviecolor approach and the Wolf, Electric Theater, and Fulton approach. Because there is no other specific tort statute more closely analogous to the ESA claim, Utah’s four year statute of limitations for “an action for relief not otherwise provided for by law,” Utah Code Ann. § 78-12-25(2) (1953), is the applicable statute. This statute expired at the latest on January 28, 1981, unless the statue was tolled under either the fraudulent concealment or class action tolling doctrine. TOLLING THEORIES I. Standard of Review. Although the parties have moved to dismiss or for summary judgment, they have submitted helpful materials beyond the pleadings on both the fraudulent concealment and class action tolling doctrine issues. Therefore, the court will consider the motion regarding these issues as one for summary judgment. Rule 12(b), Fed.R.Civ.P. The standard for this court to rule on summary judgment motions is set forth in Rule 56(c), Fed.R.Civ.P. Summary judgment shall be granted when the material facts are undisputed and judgment in favor of the movant is appropriate as a matter of law. The movant can show the absence of a factual dispute by demonstrating that in the “pleadings, depositions, answers to interrogatories, admissions on file, and affidavits ... there is [no] evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the movant has carried this burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by ... affidavits or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. at 2553. The non-moving party must “make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. at 2552. To be considered, the evidence must be admissible under the evidentiary standard that would be applied at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. at 2505, 2512, 91 L.Ed.2d 202 (1986). In considering a summary judgment motion, however, this court does not weigh the evidence but instead inquires whether “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249, 106 S.Ct. at 2510. To determine if sufficient evidence exists “the inferences to be drawn from the underlying facts [in the admissible record] ... must be viewed in the light most favorable to the [nonmoving] party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). Finally, any admissible facts asserted by the party opposing the motion that are not controverted must be regarded as true. II. Fraudulent Concealment Tolling Doctrine. In their memoranda, the parties appear to agree that a party asserting the fraudulent concealment doctrine in the Tenth Circuit must show (1) the use of fraudulent means by the party who raises the ban of the statute; (2) successful concealment from the injured party; and (3) that the party claiming fraudulent concealment did not know or by the exercise of due diligence could not have known that he might have a cause of action. King & King Enterprises v. Champlin Petroleum Co., 657 F.2d 1147, 1154 (10th Cir.1981) (quoting trial court in King & King, 446 F.Supp. 906, 911 (E.D.Okl.1978)). The parties do not agree that summary disposition of a statute of limitation question is appropriate where fraudulent concealment is allegedly involved. The fraudulent concealment issue is treated like any other on a motion for summary judgment. If the undisputed facts show that judgment is appropriate as a matter of law, the motion will be granted. Similar to a negligence issue, however, the objective reasonableness test embodied in the due diligence element of fraudulent concealment raises some concern. The court is not the fact-finder on a motion for summary judgment and must be cautious not to assume that role. Only if reasonable minds could not differ on the present set of undisputed facts as to whether Sinclair “by the exercise of due diligence could not have known that [it] might have a cause of action,” can the court rule on the third fraudulent concealment element as a matter of law. We now consider the evidence on each element of fraudulent concealment. A. The First Element: The Use of Fraudulent Means. Sinclair asserts that ARCO overcharged it and filed false Refiner’s Monthly Cost Allocation Reports (RMCARs) with the DOE to conceal the overcharges. In addition, ARCO allegedly “resisted efforts by purchasers to obtain access to the reports [under the Freedom of Information Act (FOIA)] which ARCO filed with the DOE,” by arguing to the DOE that the documents fell within certain confidentiality exceptions. Finally, Sinclair asserts that ARCO has consistently required that any cost, price, and compliance information produced in connection with litigation be placed under seal and not be revealed to other purchasers. For purposes of this motion ARCO concedes that this first element has been met. ARCO asserts, however, that even if it did “conceal” the overcharges, Sinclair cannot establish the second and third elements. B. The Second Element: Successful Concealment from the Injured Party. Sinclair asserts that ARCO’s concealment was successful because Sinclair did not know of its cause of action against ARCO before it received the class action notice in Van Vranken, Sinclair summarily states that ARCO may “claim that it was unsuccessful in concealing the violation of the pricing regulations ... [h]owever, it cannot obtain summary judgment on that matter.” Sinclair Memo.Oppo. at 33-34. ARCO asserts that as a matter of law Sinclair cannot establish successful concealment. ARCO argues that its affirmative acts of concealment are not causally connected to Sinclair’s failure to discover its cause of action, for three reasons. First, ARCO asserts that even if it filed false reports, the reports had “nothing whatever to do with the discoverability of Sinclair’s cause of action” because “each and every one of the DOE enforcement allegations upon which Sinclair’s complaint is based were publicly available and summarized in the Federal Register before May 1984.” ARCO Rep.Memo. at 16. Second, ARCO asserts that because the false filings did not prevent DOE from issuing enforcement actions against ARCO during the period 1979-1983, it is crystal clear that the so-called false filings could not have frustrated even minimal efforts by Sinclair to discover its cause of action. Id. at 17. Third, ARCO states that Sinclair completely undercuts its own claim of fraudulent concealment based on the alleged “false filings.” ... Sinclair insists that it has never seen most of the information in the alleged false filings. [Therefore,] Sinclair could not possibly have been affirmatively misled by false filings which it says it never saw.” Id. at 18. As ARCO has recognized, there is a causation requirement in this element of the fraudulent concealment doctrine. The defendant must act to hide the cause of action and the plaintiff must not find it because it was hidden. Only in such a causal circumstance does the equitable fraudulent concealment tolling principle make sense. Statutes of limitation are passed by legislatures to bar stale claims. They provide plaintiffs with what the legislature determines to be adequate time to discover, investigate, and bring causes of action. They enable defendants to intelligently plan future conduct free from the risk of financial liability or heightened legal expenses for long-past conduct. Once the legislature has determined what statutory timeframe strikes a balance between plaintiffs and defendants, courts should not lengthen it unless equity so requires. Therefore, in order for “successful concealment” to be present there must be a causal connection between ARCO’s “concealment acts” of false filings, interference with FOIA requests, and protective orders, and Sinclair’s lack of knowledge about its cause of action for overcharges. ARCO’s first two arguments on this element, that its false reports were not successfully concealed from Sinclair because the DOE allegations were publicly available before May 1984, and that the DOE saw through the false filings and therefore the reports could not have fooled Sinclair, are misdirected. Both arguments are properly arguments going to the third element of whether a duly diligent party could have discovered the cause of action. The second element is only a cause in fact test. All that is required to meet it is that ARCO’s concealment in fact fooled Sinclair. Whether it should have fooled Sinclair or whether Sinclair should have discovered the cause of action despite the concealment, is covered under the third element. ARCO’s third argument, however, raises the proper concern — a lack of causation. We have made an exhaustive review of the evidentiary record, mindful of the burden on the movant, ARCO, and of drawing reasonable inferences in Sinclair’s favor. Having done so, we find the required causal element lacking. The proof of record on this issue is as follows. In its second amended complaint, after Sinclair alleges the fraudulent actions to conceal taken by ARCO, Sinclair makes the following relevant allegations: 29. As a result of ARCO’s pattern of fraudulent concealment, Sinclair has been prevented and precluded from learning of ARCO’s violations of the DOE Regulations. In fact, as a result of ARCO’s pattern of fraudulent concealment, Sinclair did not learn of ARCO’s violation of the DOE Regulations and of the overcharges which ARCO had imposed on Sinclair until July 14, 1987.... 30. At all times prior to July 14, 1987, Sinclair exercised due diligence in attempting to discover the facts with respect to its overcharge claim against ARCO. ARCO’s fraudulent concealment, however, prevented Sinclair from doing so. Furthermore, as a result of ARCO’s pattern of fraudulent concealment, Sinclair could not, in the exercise of reasonable diligence, have discovered those operative facts involved in its cause of action. Second Amend.Comp. at 17-18. As can be seen, Sinclair has vaguely alleged causation: that ARCO’s actions “prevented and precluded” Sinclair from learning of its cause of action. Glaringly absent from these allegations is any assertion that Sinclair looked at the RMCARs and was misled by them to believe that it had not been overcharged. Nor is there any allegation that Sinclair attempted to get and was precluded by ARCO’s interference or objection from getting the RMCARs or any other DOE enforcement documents from the DOE. Also lacking is any allegation that Sinclair was timely aware of other lawsuits and attempted to get but was precluded by ARCO’s protective order from getting RMCARs and other DOE documents of record. As a result, we do not believe that Sinclair has alleged facts sufficient to establish a prima facie case on the second element. A more compelling reason to grant summary judgment, however, is that ARCO has shown facts sufficient to negate the causation element and Sinclair has failed to meet its burden to go beyond its pleadings and show an actual dispute of fact on the issue. Sinclair has asserted that false filings, interference by ARCO with FOIA requests, and protective orders resulted in successful concealment from Sinclair. ARCO submits evidence, however, consisting primarily of the affidavit testimony of Mr. Morse and Mr. Roll, that from at least 1980 forward, Sinclair did not request nor obtain from ARCO nor the DOE the RMCARs or other DOE enforcement documents. This evidence suffices to shift the burden to Sinclair to show that within the limitations period it received the false RMCARs and was fooled by them, or that it requested information and was prevented from getting it by ARCO. Such evidence would establish a factual dispute on the issue of causation under the “successful concealment” element. Sinclair’s evidence does not create such a factual dispute. Sinclair has submitted affidavits of Mr. Johnson, Sinclair’s vice-president of administration, and Mr. Goldstein, its lawyer and past administrative law judge for the DOE, in support of its position. Neither of these contradicts directly or by inference the lack of causation. Mr. Johnson establishes in his affidavit that he was intimately involved with the price control situation as part of his position with Sinclair, Johnson Aff. at 1Í1T 2 & 10 (Sinclair’s Memo.Oppo., Exh. A). He states that Sinclair was unaware of its cause of action until July 14, 1987 when it received notice of the Van Vranken case, id. at 115. After that date, Sinclair acquired information about the claims being asserted and received information sufficient to evaluate its cause of action, id. Prior to the Van Vranken notice, Sinclair was not aware of the DOE Notices of Proposed Violations or Proposed Remedial Orders against ARCO, id. at IMF 8 & 9. Mr. Johnson states that it was never Sinclair’s practice to monitor the information available throughout the entire DOE enforcement field office network, id. at 118. Absent from Mr. Johnson’s testimony is any statement that Sinclair reviewed and mistakenly relied upon ARCO’s RMCARs. Also missing is any statement that Sinclair requested the RMCARs or other DOE enforcement documents under the FOIA and did not receive them due to ARCO’s interference. In fact, Mr. Johnson’s statement that Sinclair never had a practice to monitor the DOE information suggests that such a FOIA request was not made. Mr. Goldstein’s affidavit, Sinclair Memo. Oppo. Exh. F, suffers from several defects. His testimony is on “knowledge, information and belief” rather than on personal knowledge as required under Rule 56(e), Fed.R.Civ.P. Some of his statements obviously lack foundation, such as: “ARCO has consistently attempted to withhold the information contained on these forms from its purchasers of refined petroleum products,” Goldstein Aff. at 112; “The Steptoe and Johnson position is identical to the position which ARCO has taken over the past 15 years,” id. at 114; and, “ARCO has consistently refused to permit any purchaser of refined petroleum products access to the forms which ARCO used to determine the prices which it charged those firms and has refused to permit its purchasers to examine complete and unexpurgated copies of the charges which the DOE made in [NOPYs and PROs] that ARCO has violated the DOE price regulations,” id. Even if these statements were admissible, however, they would not establish a causal connection between what ARCO did to conceal the overcharges and Sinclair’s lack of knowledge about the cause of action. Mr. Goldstein does not testify that Sinclair got or attempted to get any information from ARCO or the DOE prior to 1988. Mr. Goldstein only testifies about what ARCO did to others, not to Sinclair. For instance, Mr. Goldstein offers evidence of ARCO’s interference with USA Petroleum’s FOIA request, id. at Exhs. 4 & 5. There is no causal link between that and Sinclair, however, because Mr. Goldstein does not assert that Sinclair timely knew of ARCO’s interference with USA Petroleum’s request and abandoned as futile its own attempt to get the information. It is also obvious from the June 1987 date of USA Petroleum’s FOIA request that such a scenario is impossible, id. Mr. Goldstein’s evidence about the protective orders is also inadequate. There is no testimony that Sinclair attempted to get documents which were part of the record in those cases and was prevented from doing so by the protective orders. Further, the Rookwood protective order was not entered until March 17, 1986 and, therefore, could not have prevented Sinclair from obtaining any information about its own cause of action until after Sinclair’s statutory period had expired. Nor can Sinclair establish causation through the Van Vranken protective order. That order was entered February 4, 1985, more than four years after the last overcharge could have occurred, on January 28, 1981. Further, Mr. Johnson has testified that Sinclair was not aware of the existence of the NOPVs and PROs, or, by implication, of the Van Vranken case itself, until after it received the class action notice on July 14, 1987, id. at ¶¶ 5, 8, & 9. The affidavits and exhibits filed by Sinclair contain no evidence to contradict ARCO’s evidence that causation is lacking. Sinclair has not met its burden of showing a factual issue on the “successful concealment” element. This element lacking, the fraudulent concealment doctrine cannot operate to toll the statute of limitations and there is no need to address the due diligence element. Accordingly, unless Sinclair’s class action tolling argument is meritorious, summary judgment is appropriate for ARCO. III. Class Action Tolling Doctrine. Sinclair asserts that its class member status in the Van Vranken case has tolled the limitations period on all of its ESA claims, making Sinclair’s 1988 filing of this suit timely. ARCO asserts that Sinclair’s current class member status excludes it from the benefits of class action tolling, and that in any event class action tolling would not be equitable. Inherent in a class action suit are the possibilities that after the statutory limitations period on the class claims has expired the class will not be certified or some class members will opt out of the suit in order to better pursue their individual claims. In either event, the class member desiring to proceed individually, either through intervention in the original suit or by filing a separate action, will seek to do so at a time when he is technically barred by strict application of the statute of limitations. Strict application of the statutory period in these circumstances can be inequitable if the class member is cut off without a remedy despite his diligent pursuit of his claims through the class action and despite the fact that the defendant is not significantly prejudiced by simply changing the form of the suit from a class action to a joint or individual action. See American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554-55, 94 S.Ct. 756, 766-67, 38 L.Ed.2d 713 (1973). The class action tolling doctrine was developed to prevent this inequity. Under this tolling doctrine, the statutory limitations period is tolled for putative class members upon the filing of the class action complaint, preserving for individual class members the portion of the limitations period that remained at the time the class action was instituted. See id. at 538, 94 S.Ct. at 758. The limitations period resumes running, depending on the circumstance, either upon the denial of class certification, Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 2398, 76 L.Ed.2d 628 (1983), or upon the class member’s decision to “opt out” of the class, Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir.1985). The class member then must intervene or file a separate suit within the remaining limitations time or be barred. The Supreme Court has emphasized the need to reconcile the purpose behind the tolling doctrine with the purpose behind statutes of limitation. The Court has explained that statutes of limitations are “designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” American Pipe, 414 U.S. at 554, 94 S.Ct. at 766 (quoting Order of R.R. Tel. v. Railway Express Agency, 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788.) The Court has determined that class action tolling is not inconsistent with this right-balancing purpose when a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors. 414 U.S. at 554-55, 94 S.Ct. at 766-67 (emphasis added). See also Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353, 103 S.Ct. 2392, 2397, 76 L.Ed.2d 628 (1983) (class complaint notifies defendant). The adequacy of the notice is critical to the tolling question. Justice Powell warned courts that abuse can result if courts do not ensure that the notice is adequate: The rule should not be read ... as leaving a plaintiff free to raise different or peripheral claims following denial of class status. It is important to make certain ... that American Pipe is not abused by the assertion of claims that differ from those not raised in the original class suit.... [W]hen a plaintiff invokes American Pipe in support of a separate lawsuit, the district court should take care to ensure that the suit raises claims that “concern the same evidence, memories, and witnesses as the subject matter of the original class suit,” so that “the defendant will not be prejudiced.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 355, 103 S.Ct. 2392, 2398, 76 L.Ed.2d 628 (1983) (Powell, J. concurring) (quoting American Pipe, 414 U.S. at 562, 94 S.Ct. at 770 (Blackmun, J. concurring)). Three requirements for adequate notice can be gleaned from American Pipe and Crown, Cork & Seal. First, the notice contemplated by the Supreme Court is notice that a class of persons, the individual class member included, is through that lawsuit exercising its right to recover from the defendant for specified harms it suffered due to specified acts by the defendant. At the risk of overstating the obvious, the required notice is actual notice of the sued-upon claims, not some “notice,” derivative by implication from the claim asserted, that these plaintiffs may have been overcharged as a result of other pricing violations at other times and that they may also see fit to sue for those at some time. Second, the notice of the individual’s claim is to come from the allegations of the complaint filed in the class action. This is logical, for it is in the complaint that notice of the nature of the class claims sued upon is stated. The class action complaint defines the specific parameters of the class action, and thus the parameters of each individual member’s claims. Third, the notice contemplated is to be given within the limitations time. Thus, notice could come from amendments to the complaint which were made within the limitations period, or from amendments which relate back to the original date of filing under Rule 15, Fed.R.Civ.P. With these principles in mind, we now examine the applicability of class action tolling to the case at bar. This situation obviously differs from the tolling cases addressed above in that Sinclair is simultaneously involved as the plaintiff in this suit and as a class member in the Van Vranken class action. In Van Vranken, the class has alleged in its original, first, and second amended complaints that in May 1976 ARCO changed its method of accounting for the cost of crude oil involved in interaffiliate transactions from an “internal transfer price” method to a “tax reference price” method, intentionally violating § 212.83(b) of the EPAA pricing regulations, which resulted in overcharges to the class from 1976 through 1981. Based on this regulatory violation, the Van Vranken class seeks to recover treble damages under § 210 of ESA. In the case at bar, Sinclair’s allegations include the intentional EPAA violation alleged in Van Vranken, as well as other specific intentional EPAA violations resulting in overcharges to Sinclair and thus actionable under ESA § 210. ARCO has argued for summary judgment in part on the ground that Sinclair’s current status as a Van Vranken class member excludes it from the benefits of class action tolling. We do not believe that summary judgment for ARCO can be granted on that ground. Because Sinclair is a Van Vranken class member, the filing of the original Van Vranken complaint tolled the statute of limitations for all of Sinclair’s individual claims which were adequately set forth therein. Because the Van Vranken class has been certified and because Sinclair has not been required to exercise its right to opt out of the suit, the limitations period has not resumed running. Therefore, the period has not yet expired and Sinclair’s claims are not too late. If we were today to deny class action tolling because Sinclair is a class member, we would be ruling that all of Sinclair’s claims are too late. However, if Sinclair were to opt out of Van Vranken tomorrow and we revisited this question, tolling would clearly be appropriate for those causes of action of which ARCO had adequate notice. Thus, we see no sense in barring today as “too late” a cause of action which is really “too early.” We move, then, to the issue of notice. It is undisputed that the Van Vranken complaint gave ARCO notice of Sinclair’s ESA claim for treble overcharges resulting from ARCO’s alleged May 1976 change in the method of accounting for the price of crude oil from an “internal transfer price” method to a “tax reference price” method. This is the claim expressly at issue in Van Vranken and set forth at paragraph 16(f) of Sinclair’s complaint in this action. As to this claim, we find that the limitations perio