A former naval engineer accusing shipbuilders of conspiring to suppress industry wages has told the U.S. Supreme Court that their petition for review of a Fourth Circuit decision reviving her proposed class action rests on a rule the panel never adopted.

Susan Scharpf said in a brief Friday that although General Dynamics, Huntington Ingalls and other shipbuilders argued the panel adopted a rule under which Scharpf's mere claim that their alleged no-poach deal is unwritten is enough to establish fraudulent concealment and delay the statute of limitations, the Fourth Circuit didn't do so.

"Instead, it applied a factbound, consensus standard under which: (a) affirmative acts to cover up an antitrust conspiracy can be sufficient to allege fraudulent concealment; and (b) a wide range of conduct can be evidence of an affirmative cover up, including efforts to conceal evidence and avoid a paper trail," Scharpf said.

That's the same rule applied by other circuit courts the shipbuilders asserted the Fourth Circuit split from, Scharpf said. Moreover, the panel also expressly rejected the rule the shipbuilders said it adopted, Scharpf stated, adding that the panel held that even if a plaintiff adequately claims there was an unwritten agreement they must also allege facts sufficient to infer that the defendants intended to prevent others from uncovering their scheme.

"This is plain from the face of the opinion," Scharpf said, explaining that the panel wrote the shipbuilders affirmatively acted to cover up their conspiracy by avoiding putting anything in writing and using coded language, as well as enforced their conspiracy through private phone calls between high-level executives and unofficial retribution.

"Because the petition's arguments about a circuit split, importance, and the merits all rest on a supposed rule that the court below never adopted — and because those arguments are wrong on their own terms in any event — the petition for a writ of certiorari should be denied," Scharpf said.

The case stems from a proposed class action by former naval engineers and architects, Scharpf and Anthony D'Armiento, who accuse General Dynamics, Huntington Ingalls and 18 other companies of suppressing industry wages by illegally scheming for decades to not actively recruit, or poach, each other's employees. The suit, filed in Virginia federal court in 2023, aims to represent a class of people employed by the companies as naval architects, marine engineers, or both, from Jan. 1, 2000.

Although a Virginia federal judge found their claims fell outside the four-year statute of limitations and dismissed the suit in April 2024, a split Fourth Circuit panel reversed that decision in May. The majority held that Scharpf and D'Armiento had adequately pled they were kept in the dark about the alleged conspiracy within the statutory period because the employers were deliberately trying to conceal it. D'Armiento has since withdrawn as a plaintiff from the case.

The shipbuilders filed their petition before the Supreme Court in September, arguing the Fourth Circuit panel's decision conflicts with prior rulings by the Fifth, Sixth and Ninth circuits, which have explained that mere silence or unwillingness to admit wrongful activities is insufficient to establish fraudulent concealment. They also said the decision flouts the statute of limitations period Congress contemplated.

The U.S. Chamber of Commerce and the Shipbuilders Council of America filed amicus briefs in October in support of the shipbuilders' petition.

Counsel for the parties did not immediately respond to requests for comment Monday.

The shipbuilders are represented by Donald B. Verrilli Jr. and Ginger D. Anders of Munger Tolles & Olson LLP, Matthew S. Hellman, Douglas E. Litvack, Elizabeth B. Deutsch, Michael A. Doornweerd and Gabriel K. Gillett of Jenner & Block LLP, Adam Block Schwartz, Todd Stenerson and Joseph P. Samuels of Allen Overy Shearman Sterling, Sima Namiri-Kalantari and Chahira Solh of Crowell & Moring LLP, David G. Barger of Greenberg Traurig LLP, Attison L. Barnes III, Krystal B. Swendsboe, Scott M. McCaleb and Jon W. Burd of Wiley Rein LLP, Brian A. Hill and Brian J. Whittaker of Nixon Peabody LLP, Benjamin L. Hatch, Casey E. Lucier, J. Brent Justus, Nicholas J. Giles, Joshua D. Wade and W. Cole Geddy of McGuireWoods LLP, Allison W. Reimann, Sean O'D. Bosack and Christie B. Carrino of Godfrey & Kahn SC, Christopher C. Brewer, Ryan P. Phair, Michael F. Murray and Craig Y. Lee of Paul Hastings LLP, Perry A. Lange, Jennifer Milici and John W. O'Toole of WilmerHale, William DeVinney of William DeVinney PLLC, Matthew J. MacLean and Alvin Dunn of Pillsbury Winthrop Shaw Pittman LLP, and William E. Lawler III and Amanda C. DeLaPerriere of Blank Rome LLP.

The proposed class is represented by Brent W. Johnson, Steven J. Toll, Robert W. Cobbs, Alison S. Deich, Zachary R. Glubiak, Sabrina S. Merold and Callie C. Bruzzone of Cohen Milstein Sellers & Toll PLLC, Deepak Gupta and Thomas Scott-Railton of Gupta Wessler LLP, Shana E. Scarlett, Rio S. Pierce, Steve W. Berman, Kevin K. Green and Elaine T. Byszewski of Hagens Berman Sobol Shapiro LLP, George F. Farah, Nicholas J. Jackson and Simon A. Wiener of Handley Farah & Anderson PLLC, Candice J. Enders and Julia R. McGrath of Berger Montague, and Brian D. Clark, Stephen J. Teti, Arielle S. Wagner and Eura Chang of Lockridge Grindal Nauen PLLP.

The case is General Dynamics Corp. et al. v. Susan Scharpf et al., case number 25-293, in the Supreme Court of the United States.