PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 19-2233
`
`
`
`
`
`Plaintiffs - Appellants,
`
`
`
`v.
`
`
`MAYOR AND CITY COUNCIL OF BALTIMORE; GOVERNMENT EMPLOYEES
`HEALTH ASSOCIATION, on behalf of itself and all others similarly situated,
`
`
`
`
`
`ACTELION PHARMACEUTICALS LTD.; ACTELION PHARMACEUTICALS US,
`INC.; JANSSEN RESEARCH & DEVELOPMENT, LLC,
`
`
`
`
`
`ACTELION CLINICAL RESEARCH, INC.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Defendants - Appellees,
`
`and
`
`
`
`Defendant.
`
`
`Appeal from the United States District Court for the District of Maryland, at Baltimore.
`George L. Russell, III, District Judge. (1:18-cv-03560-GLR)
`
`
`
`
`Submitted: January 29, 2021
`
`
`Before NIEMEYER, WYNN and FLOYD, Circuit Judges.
`
`
`
`Decided: April 13, 2021
`
`
`
`Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which
`Judge Wynn and Judge Floyd joined.
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 19-2233
`
`
`
`
`
`Plaintiffs - Appellants,
`
`
`
`v.
`
`
`MAYOR AND CITY COUNCIL OF BALTIMORE; GOVERNMENT EMPLOYEES
`HEALTH ASSOCIATION, on behalf of itself and all others similarly situated,
`
`
`
`
`
`ACTELION PHARMACEUTICALS LTD.; ACTELION PHARMACEUTICALS US,
`INC.; JANSSEN RESEARCH & DEVELOPMENT, LLC,
`
`
`
`
`
`ACTELION CLINICAL RESEARCH, INC.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Defendants - Appellees,
`
`and
`
`
`
`Defendant.
`
`
`Appeal from the United States District Court for the District of Maryland, at Baltimore.
`George L. Russell, III, District Judge. (1:18-cv-03560-GLR)
`
`
`
`
`Submitted: January 29, 2021
`
`
`Before NIEMEYER, WYNN and FLOYD, Circuit Judges.
`
`
`
`Decided: April 13, 2021
`
`
`
`Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which
`Judge Wynn and Judge Floyd joined.
`
`
`
`
`
`
`
`
`
`Sharon K. Robertson, David O. Fisher, COHEN MILSTEIN SELLERS & TOLL, New
`York, New York, for Appellants. Gregory T. Lawrence, LAWRENCE LAW, LLC,
`Baltimore, Maryland; Katherine B. Forrest, Damaris Hernández, CRAVATH, SWAINE &
`MOORE LLP, New York, New York, for Appellees.
`
`
`
`
`
`
`
`2
`
`
`
`NIEMEYER, Circuit Judge:
`
`The plaintiffs1 commenced this antitrust class action against Actelion,2 alleging that
`
`Actelion extended its patent monopoly for its branded drug Tracleer — a drug to treat
`
`pulmonary artery hypertension — beyond the patent’s expiration date. They alleged that
`
`Actelion did so “through illegitimate means” with the intent of precluding competition
`
`from generic drug manufacturers and charging supracompetitive prices for Tracleer, in
`
`violation of federal and state antitrust laws. They claim that as a result of Actelion’s illegal
`
`monopolization, they were injured by having to pay supracompetitive prices for Tracleer
`
`for some three years after Actelion’s patent for Tracleer expired.
`
`On Actelion’s motion, the district court dismissed the plaintiffs’ complaint under
`
`Federal Rule of Civil Procedure 12(b)(6), ruling that all but four of the plaintiffs’ claims
`
`were barred by the applicable four-year statutes of limitations because the action was
`
`commenced on November 19, 2018, more than four years after “Actelion’s last overt
`
`anticompetitive act” in February 2014. The court identified that act as the consummation
`
`of settlement agreements between Actelion and several generic manufacturers, resulting in
`
`the dismissal of the manufacturers’ antitrust actions against Actelion. With respect to the
`
`four claims that it held were not barred by limitations — claims made under the laws of
`
`Maine, Minnesota, Vermont, and Wisconsin — the court ruled that the plaintiffs lacked
`
`
`1 Mayor and City Council of Baltimore and Government Employees Health
`Association.
`2 Actelion Pharmaceuticals Ltd.; Actelion Clinical Research, Inc.; Actelion
`Pharmaceuticals US, Inc.; and Janssen Research & Development, LLC, collectively,
`“Actelion.”
`
`
`
`3
`
`
`
`standing to assert them because the plaintiffs made no purchases of Tracleer in those States
`
`and thus suffered no harm that implicated their laws.
`
`On appeal, we vacate and remand, concluding that the plaintiffs’ antitrust claims did
`
`not accrue until the plaintiffs were injured by paying supracompetitive prices for Tracleer
`
`after the patent expired in November 2015. Therefore, their action commenced in
`
`November 2018 was timely. Moreover, even if the February 2014 date, when Actelion
`
`entered into agreements settling the generic manufacturers’ antitrust claims, marked the
`
`last anticompetitive act, damages could not then have been recovered by plaintiffs because
`
`their claims would not have been ripe for judicial resolution in view of the speculative
`
`nature of future conduct that might have thereafter occurred. Therefore, limitations would
`
`not begin to run until the claims became ripe. And in any event, because the plaintiffs
`
`alleged that Actelion continued with anticompetitive acts after November 2015 in selling
`
`Tracleer at supracompetitive prices, new limitations periods began to run from each sale
`
`that caused the plaintiffs damages. Accordingly, we vacate the district court’s limitations
`
`ruling.
`
`As to the district court’s standing ruling, we largely agree with the district court.
`
`But while the plaintiffs cannot for that reason seek relief under the laws of States in which
`
`they made no purchases of Tracleer — i.e., Maine, Minnesota, Vermont, and Wisconsin,
`
`as well as others — they nonetheless might, if a class is certified under Rule 23(c), be able
`
`to advance claims under those laws on behalf of class members who purchased Tracleer in
`
`those States. Accordingly, we conclude that the allegations asserting violations of the laws
`
`in States where plaintiffs did not purchase Tracleer may yet be considered when
`4
`
`
`
`
`
`determining whether the plaintiffs can, based on a Rule 23 analysis, represent class
`
`members who purchased Tracleer in those States, and if they can, then whether the
`
`plaintiffs can include those claims.
`
`
`
`I
`
`The facts alleged in the complaint are, for purposes of this appeal, taken as true, as
`
`the district court’s dismissal order was based on Federal Rule of Civil Procedure 12(b)(6).
`
`The complaint alleges that Actelion is a pharmaceutical company that obtained an
`
`exclusive license under a patent for Tracleer — U.S. Patent No. 5,292,740 (Patent ’740)
`
`— which was issued in 1994 to Hoffman-LaRoche, Inc. Tracleer, which contains the
`
`compound bosentan, is the only oral treatment for pulmonary arterial hypertension, and
`
`Actelion made billions of dollars in profits from sales of the drug. Patent ’740 expired on
`
`November 20, 2015.
`
`For some three years after Patent ’740 expired, no competitor brought a generic
`
`version of Tracleer to market, and Actelion was thus able to continue to charge the same
`
`supracompetitive prices for Tracleer that it had charged before the patent expired. In their
`
`complaint, the plaintiffs alleged that this absence of competition was attributable to a multi-
`
`year scheme by Actelion to block at least four generic manufacturers from filing
`
`applications for approval of a generic version of Tracleer with the intent to maintain its
`
`patent monopoly power beyond the expiration date, in violation of the antitrust laws. As
`
`alleged, the generic drug manufacturers sought to obtain from Actelion, beginning in 2009,
`
`samples of Tracleer to enable them to develop a generic drug. This was necessary because
`
`
`
`5
`
`
`
`a generic manufacturer is not permitted to simply manufacture its own sample, even if it
`
`knows how to; it must create a generic product that is proven to be bioequivalent to the
`
`branded product, which requires that it have samples of that branded product. The four
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`generic manufacturers — Zydus Pharmaceuticals (USA) Inc., Apotex Inc., Actavis Inc.,
`
`and Roxane Laboratories, Inc. — repeatedly, over the period from 2009 to 2012, requested
`
`to purchase samples from Actelion, and on each occasion Actelion refused, stating that it
`
`“ha[d] the right to choose with whom it d[id] business and to whom it [would] sell its
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`products.” At the same time, Actelion also, by contract, restricted its own distributors from
`
`selling samples of Tracleer to generic drug manufacturers.
`
`When the generic drug manufacturers threatened to sue Actelion for violation of the
`
`antitrust laws, Actelion filed a preemptive action in September 2012 against Apotex and
`
`Roxane, seeking a declaratory judgment that it had the right to choose with whom it would
`
`do business and to whom it would sell its products, and that it had no duty to deal with
`
`Apotex or Roxane. Apotex and Roxane filed a counterclaim alleging that Actelion’s
`
`conduct violated the antitrust laws, and Actavis and Zydus intervened to join in that claim.
`
`In denying Actelion’s motion to dismiss the antitrust counterclaim, the district court
`
`indicated that it would be preparing a substantial written opinion to support its ruling. In
`
`so indicating, the court stated, “[W]hat I’m having difficulty [with] is . . . the notion that
`
`[Actelion’s interpretation] somehow would allow a brand name manufacturer who has, I
`
`will call it, Section 2 [of the Sherman Act] intent to . . . confer upon them some kind of
`
`Section 2 immunity where . . . conduct beyond . . . a mere refusal to sell suggests an intent
`
`to extend or maintain a monopoly.” Before the district court could issue its opinion,
`6
`
`
`
`
`
`however, Actelion entered into settlement agreements with the generic drug manufacturers
`
`in February 2014, the terms of which have not been disclosed. The plaintiffs alleged in
`
`their complaint that “[t]he settlements themselves [were] consequences of Actelion’s
`
`anticompetitive actions.”
`
`Thereafter, Actelion continued — up to and beyond the expiration date of Patent
`
`’740 — to refuse to sell samples to different generic companies who requested them.
`
`The complaint alleged, “But for Actelion’s refusal to allow the generic[]
`
`[manufacturers] to purchase samples, one or more generics would have been available in
`
`November 2015” to provide competition and competitive prices. It contended further that
`
`Actelion’s refusal to do business with the generic manufacturing companies was
`
`irrational but for its anticompetitive effects. . . . There is no legitimate, non-
`pretextual, procompetitive business justification for Actelion’s refusal to sell
`samples of Tracleer to generic manufacturers. . . . Actelion’s scheme was
`intended to impede generic competition to Tracleer, and it succeeded in
`doing so.
`
`Thus, it alleged that Actelion possessed monopoly power and that,
`
`[t]hrough its overarching anticompetitive scheme . . . willfully maintained its
`monopoly power in the relevant market using restrictive or exclusionary
`conduct . . . . Actelion’s anticompetitive conduct was done with the specific
`intent to maintain its monopoly in the market for bosentan in the United
`States.
`
`The complaint summarized that Actelion’s anticompetitive scheme was successful in
`
`“extend[ing] its dominance in [the relevant] market, maintain[ing] Tracleer’s prices at
`
`supracompetitive levels,” and “depriv[ing] the market of competition.” According to the
`
`complaint, this illegal monopolization not only harmed competition but caused the
`
`
`
`7
`
`
`
`plaintiffs to pay supracompetitive prices for some three years after Actelion’s patent
`
`expired. As alleged:
`
`Actelion’s anticompetitive scheme has been 100% effective. Nearly three
`years after the expiration of the Tracleer patent, no generic Tracleer is
`available in the United States.
`
`Actelion’s scheme has forced Plaintiffs and other purchasers to pay higher
`prices for bosentan for far longer than they otherwise would have. Without
`Actelion’s years-long blockade, at least one generic version of Tracleer
`would have been available in the [United States] at or around the expiration
`of Tracleer’s patent protection in November 2015. [Actelion’s] unlawful
`conduct has barred generic versions of Tracleer from the market, prevented
`competition, and cost purchasers hundreds of millions of dollars in
`overcharge damages.
`
`More particularly, the complaint alleged that the plaintiff City of Baltimore
`
`“purchased, paid, and/or provided reimbursement for some or all of the purchase price of
`
`Tracleer in Maryland” and “[a]bsent the unlawful conduct alleged herein, the City of
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`Baltimore would have purchased less expensive generic alternatives rather than branded
`
`Tracleer.” And it alleged the same for the plaintiff Government Employees Health
`
`Association, which was providing benefits to 1.5 million people residing in all 50 States as
`
`well as the District of Columbia and Puerto Rico.
`
`The complaint concluded with allegations that Actelion violated § 2 of the Sherman
`
`Act, 15 U.S.C. § 2, as made privately enforceable through §§ 4 and 16 of the Clayton Act,
`
`id. §§ 15, 26. It also alleged violations of 25 state antitrust statutes and 20 state consumer
`
`protection statutes.
`
`Actelion filed a motion to dismiss the complaint under Federal Rule of Civil
`
`Procedure 12(b)(6), raising several arguments for dismissal, including the two that are at
`
`
`
`8
`
`
`
`issue in this appeal. It contended that all but four of the plaintiffs’ claims were time-barred
`
`by four-year statutes of limitations because the last overt act alleged by the plaintiffs
`
`occurred in February 2014, when the settlement agreements were reached, and the
`
`plaintiffs’ complaint was filed more than four years later, in November 2018. It also
`
`contended that the plaintiffs lacked standing to pursue claims under the laws of States in
`
`which they themselves had not purchased Tracleer.
`
`The district court granted Actelion’s motion to dismiss, relying on both grounds. It
`
`characterized the plaintiffs’ complaint as a refusal-to-deal case in which Actelion’s alleged
`
`refusals spanned from 2009 to February 2014. And it concluded that “when [a] plaintiff
`
`charges a continual refusal to deal, the statute of limitations commences to run from the
`
`last overt act causing injury to the plaintiff’s business” (quoting Charlotte Telecasters, Inc.
`
`v. Jefferson-Pilot Corp., 546 F.2d 570, 572 (4th Cir. 1976)), which it identified as the
`
`February 2014 settlements. The court rejected the plaintiffs’ argument that their claims
`
`accrued on November 20, 2015, because the “expiration of the Patent is not an overt act by
`
`Actelion.” It also rejected the plaintiffs’ alternative argument that Actelion was engaged
`
`in a continuing violation such that the statutes of limitations began to run from each sale
`
`of Tracleer at supracompetitive prices. In doing so, the court concluded — mistakenly —
`
`that the complaint did not allege that Actelion “actually” charged supracompetitive prices
`
`or that it engaged in “illegal price fixing or predatory pricing,” which traditionally have
`
`involved continuing violations.
`
`As to the plaintiffs’ four remaining claims — those alleging violations of the laws
`
`of Maine, Minnesota, Vermont, and Wisconsin (which have six-year statutes of limitations)
`9
`
`
`
`
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`— the district court held that the plaintiffs lacked standing to bring those claims because
`
`they failed to allege that they “suffered any specific harm in Maine, Wisconsin, Minnesota,
`
`and Vermont” so as to implicate those States’ statutes.
`
`From the district court’s order of dismissal dated September 30, 2019, the plaintiffs
`
`filed this appeal.
`
`
`
`II
`
`With respect to the district court’s statute-of-limitations ruling, the plaintiffs
`
`contend that the district court committed “three serious errors.” First, the court erroneously
`
`concluded that “the statute of limitations began to run against [the plaintiffs] before [they]
`
`suffered any injury, in clear contravention of the standard antitrust accrual rule.” Under
`
`that rule, the statute of limitations would begin to run once the plaintiffs were actually
`
`injured — that is, once Actelion’s patent expired and the plaintiffs paid supracompetitive
`
`prices for Tracleer. Second and similarly, the court failed to accept that an action “does
`
`not accrue with respect to a plaintiff’s damages until those damages become more than
`
`speculative,” citing Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S. 321, 339 (1971).
`
`And third, the court “failed to apply the continuing-violation doctrine,” under which the
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`statutes of limitations would begin to run from each sale after November 2015 that Actelion
`
`made at supracompetitive prices.
`
`Addressing the limitations issues requires an understanding of the nature of the
`
`plaintiffs’ causes of action and when they accrued. The plaintiffs’ principal cause of action
`
`is brought under § 4 of the Clayton Act, which provides that “any person who shall be
`
`
`
`10
`
`
`
`injured in his business or property by reason of anything forbidden in the antitrust laws
`
`may sue therefor,” 15 U.S.C. § 15(a) (emphasis added), and § 2 of the Sherman Act, which
`
`prohibits the willful maintenance of monopoly power, see id. § 2. Section 4B of the
`
`Clayton Act provides that any such action is “barred unless commenced within four years
`
`after the cause of action accrued.” Id. § 15b (emphasis added).3 The Supreme Court has
`
`held that “[g]enerally, a cause of action accrues and the statute begins to run when a
`
`defendant commits an act that injures a plaintiff’s business.” Zenith, 401 U.S. at 338
`
`(emphasis added). Because a cause of action under § 4 of the Clayton Act vindicates one
`
`who is injured by a violation of the antitrust laws, it accrues when the plaintiff first suffers
`
`injury. See id. at 339. Thus, when “a plaintiff feels the adverse impact of an antitrust
`
`conspiracy on a particular date, a cause of action immediately accrues to him.” Id. Indeed,
`
`without injury, a cause of action does not exist and therefore cannot accrue. Following this
`
`principle, the Zenith Court described its task as determining “whether Zenith could have
`
`recovered . . . damages [it suffered during the 1959–1963 period] if it had brought suit for
`
`them in 1954, for if it could not, it would follow for the reasons stated above that it must
`
`be permitted to recover them now.” Id. at 340.
`
`In this case, according to the plaintiffs’ complaint, the plaintiffs had no cause of
`
`action as of February 2014 — when, according to the district court, the last overt act took
`
`place. The district court reasoned that this was a refusal-to-deal case and all refusals took
`
`place before the 2014 settlements, which were more than four years before suit was filed.
`
`
`3 We proceed with the understanding that analysis of the statute of limitations under
`the Clayton Act is the same for each relevant state statute.
`11
`
`
`
`
`
`But the court did not address whether those refusals on or before the February 2014
`
`settlements injured the plaintiffs at that time. The district court’s reasoning resulted from
`
`a misunderstanding of the nature of the causes of action alleged in the plaintiffs’ complaint
`
`and of the nature of the injury alleged.
`
`The plaintiffs’ federal antitrust claims rest on § 2 of the Sherman Act, 15 U.S.C.
`
`§ 2, which requires them to show (1) that Actelion possessed monopoly power in a relevant
`
`market — i.e., the power to control prices or exclude competition — and (2) that it willfully
`
`acquired or maintained that power. See United States v. Grinnell Corp., 384 U.S. 563,
`
`570–71 (1966). They would also have to show under § 4 of the Clayton Act that they were
`
`directly — not proximately — injured by the violation. See 15 U.S.C. § 15; Associated
`
`Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 540–46
`
`(1983).
`
`While the plaintiffs’ complaint acknowledged that Actelion possessed legal
`
`monopoly power during the period of its patent license, it alleged that monopolization in
`
`violation of § 2 of the Sherman Act occurred following the expiration of the patent in
`
`November 2015 and continued for at least three years thereafter, during which Actelion
`
`was able to control prices. The complaint alleged that Actelion was able to do so by
`
`deliberately delaying competition from generic manufacturers by blocking their ability to
`
`develop generic drugs by refusing to sell them the needed samples. While Actelion’s
`
`refusals might have amounted — at least as claimed by the generic manufacturers — to an
`
`abuse of patent monopoly power that injured the generic manufacturers, patent abuse is not
`
`the nature of the plaintiffs’ alleged claims. The plaintiffs alleged that Actelion willfully
`12
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`
`
`
`
`maintained illegal monopoly power beginning in November 2015 (after the patent expired)
`
`by having excluded competition.
`
`Thus, the antitrust violations alleged by the plaintiffs are that Actelion maintained
`
`monopoly power beginning in November 2015, as manifested by the supracompetitive
`
`prices it charged them for Tracleer beginning at that point. And as important, the plaintiffs
`
`did not allege that Actelion’s refusals to provide samples to the generic manufacturers
`
`caused them their injury. Rather, that was the means by which Actelion was able to extend
`
`illegally its patent monopoly following the patent’s expiration. Stated differently, the
`
`complaint alleged that Actelion began its anticompetitive scheme before the expiration of
`
`its patent, when it still had legal monopoly power over sales of Tracleer, but that the scheme
`
`had no illegal effect until it exercised its monopoly power beyond November 2015, when
`
`the patent expired and it was yet able to charge monopoly prices. Accordingly, it was also
`
`only then — in November 2015 — that the plaintiffs could have been injured as a result of
`
`Actelion’s monopolistic prices. In short, because the plaintiffs were not injured in 2014,
`
`they had no cause of action in 2014, and thus limitations could not have begun to run in
`
`2014.
`
`Even were we to assume that in February 2014 the plaintiffs had some form of action
`
`— which they did not allege — their claim at that time could only have been for future
`
`damages occurring after November 2015, and those damages would have been too
`
`speculative to recover. In that situation, as Zenith teaches, the cause of action would accrue
`
`only when such damages occurred:
`
`
`
`13
`
`
`
`In antitrust . . . actions, refusal to award future [damages] as too speculative
`is equivalent to holding that no cause of action has yet accrued for any but
`those damages already suffered. In these instances, the cause of action for
`future damages, if they ever occur, will accrue only on the date they are
`suffered; thereafter the plaintiff may sue to recover them at any time within
`four years from the date they were inflicted.
`
`Zenith, 401 U.S. at 339; see also Charlotte Telecasters, 546 F.2d at 573 (“[A] cause of
`
`action for future damages does not accrue until the damages become reasonably
`
`ascertainable and, therefore, capable of proof”); South Carolina v. United States, 912 F.3d
`
`720, 726, 730 (4th Cir. 2019) (“[A] plaintiff’s claim is not ripe for judicial review ‘if it
`
`rests upon contingent future events that may not occur as anticipated, or indeed may not
`
`occur at all’” (quoting Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 270
`
`(4th Cir. 2013))).
`
`To avoid the consequences of applying these principles, Actelion argues that in
`
`February 2014, the plaintiffs “suffered an injury to their future economic interests”
`
`(emphasis added), thus causing limitations to begin running in 2014. Such an argument,
`
`however, would require anticipation of (1) a future antitrust violation, as the plaintiffs
`
`alleged, (2) the continued exclusion of generic manufacturers after November 2015, and
`
`(3) Actelion’s continuing ability to charge supracompetitive prices. Relying on “future
`
`economic interests” that were dependent on such future events would simply be untenable.
`
`If merely an overt act in 2014 without injury were to be the starting gate for limitations to
`
`run, then all those who would first suffer antitrust injury more than four years after that
`
`overt act “would be forever incapable of recovery.” Zenith, 401 U.S. at 340. Such a
`
`proposition makes no sense, as recognized in Zenith.
`
`
`
`14
`
`
`
`At bottom, the plaintiffs’ cause of action, as defined by 15 U.S.C. §§ 2 and 15,
`
`accrued when they were injured, and, as they alleged, they were first injured in November
`
`2015. As we have stated, “the four-year statute of limitations began to run [from] the date
`
`of the injury.” Detrick v. Panalpina, Inc., 108 F.3d 529, 540 (4th Cir. 1997) (emphasis
`
`added); see also Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211,
`
`220 (4th Cir. 1987); Klehr v. A.O. Smith Corp., 521 U.S. 179, 198, 201 (1997) (Scalia, J.,
`
`concurring).
`
`Quite apart from application of the standard antitrust accrual rule and the correlative
`
`speculative-damages doctrine, which render the plaintiffs’ action timely, the continuing-
`
`violation doctrine would also entitle the plaintiffs to recover damages for each
`
`supracompetitive sale that Actelion made after November 2015. As explained in Zenith,
`
`“[i]n the context of a continuing conspiracy to violate the antitrust laws,” the statute of
`
`limitations begins to run from “each time a plaintiff is injured by an act of the defendants.”
`
`401 U.S. at 338. Specifically, in cases “involving allegations of ‘a price-fixing conspiracy
`
`that brings about a series of unlawfully high priced sales over a period of years, each overt
`
`act that is part of the violation and that injures the plaintiff, e.g., each sale to the plaintiff,
`
`starts the statutory period running again.’” In re Cotton Yarn Antitrust Litig., 505 F.3d
`
`274, 290–91 (4th Cir. 2007) (emphasis added) (quoting Klehr, 521 U.S. at 189); see also
`
`Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir. 1979) (“[E]ach time
`
`a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover
`
`the damages caused by that act”). Similarly, according to the complaint in this case, each
`
`time that Actelion sold Tracleer at a supracompetitive price after its patent expired, it
`15
`
`
`
`
`
`illegally exercised monopoly power — i.e., willfully maintained monopoly power,
`
`Grinnell, 384 U.S. at 570–71 — thus committing an overt act that caused injury and
`
`violated the antitrust laws. Accordingly, a new limitations period began to run from each
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`such sale.
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`Actelion argues, nonetheless, that these “sales at supracompetitive prices” were
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`merely a holdover “effect” of its earlier settlements in February 2014 and that the sales
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`themselves were not unlawful acts that gave rise to new causes of action. It maintains, as
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`the district court did, that this is a refusal-to-deal case and that post-patent sales to the
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`plaintiffs were not refusals to deal and therefore did not provide the plaintiffs with new
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`causes of action. This, however, does not respond to the plaintiffs’ complaint as written.
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`The plaintiffs did not allege that Actelion’s refusals to deal excluded them “from
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`participation in an industry,” as they would have to allege to state a refusal-to-deal claim;
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`they alleged that they are customers of Actelion, not competitors. Charlotte Telecasters,
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`546 F.2d at 572; see also Berkey Photo, 603 F.2d at 295 (“Although the business of a
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`monopolist’s rival may be injured at the time the anticompetitive conduct occurs, a
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`purchaser, by contrast, is not harmed until the monopolist actually exercises its illicit power
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`to extract an excessive price”). The plaintiffs’ complaint, instead, alleged conduct more
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`closely analogous to what has been termed a pay-for-delay scheme. See, e.g., FTC v.
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`Actavis, Inc., 570 U.S. 136 (2013). They alleged that Actelion engaged in an “illegal
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`scheme to maintain its monopoly” by “delay[ing] the start of generic drug competition” so
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`that it could “continue [after November 2015] to profitably charge supra-competitive
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`prices.” Thus, each time that Actelion sold Tracleer to the plaintiffs at monopoly prices
`16
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`
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`after the patent’s expiration, it engaged in a new injurious overt act that commenced a new
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`limitations period. See Charlotte Telecasters, 546 F.2d at 572.
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`Virtually every court faced with similar allegations has held, citing the continuing-
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`violation doctrine, “that a new cause of action accrues to purchasers upon each overpriced
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`sale of the drug.” Malla Pollack, 6 Callmann on Unfair Competition, Trademarks, and
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`Monopolization § 23:32 (4th ed. 2019); see, e.g., In re Buspirone Patent Litig., 185 F. Supp.
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`2d 363, 380 (S.D.N.Y. 2002) (finding that the purchaser plaintiffs’ claims were timely
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`“based on allegations of injury arising from purchases of [a drug] at allegedly inflated
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`prices beginning four years prior to the filings of their respective Complaints” where
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`purchasers alleged that a settlement agreement kept generic competition out of the market);
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`In re K-Dur Antitrust Litig., 338 F. Supp. 2d 517, 551 (D.N.J. 2004) (finding claims timely
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`where the plaintiffs “alleged that they were overcharged and paid supra-competitive prices
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`for [a drug] as a result of Defendants’ settlement agreements . . . within the applicable time
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`limitations”); In re Nexium (Esomeprazole) Antitrust Litig., 968 F. Supp. 2d 367, 400 (D.
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`Mass. 2013) (“[E]very time the Direct Purchasers were overcharged for brand [drug], they
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`suffered a cognizable injury” that accrued a new cause of action); In re Niaspan Antitrust
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`Litig., 42 F. Supp. 3d 735, 746 (E.D. Pa. 2014) (“[A]lleged ongoing sales of [the drug] at
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`a supracompetitive price constitute a continuing violation”); In re Skelaxin (Metaxalone)
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`Antitrust Litig., No. 1:12-MD-2343, 2013 WL 2181185, at *29 (E.D. Tenn. May 20, 2013)
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`(“Plaintiffs have sufficiently alleged those acts resulted in Plaintiffs being overcharged for
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`[the drug] well into the limitations period”); In re Aggrenox Antitrust Litig., 94 F. Supp. 3d
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`224, 238 (D. Conn. 2015) (holding that “a purchaser suing a monopolist for overcharges is
`17
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`
`
`
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`injured anew by each overcharge”); In re: EpiPen (Epinephrine Injection, USP) Mktg.,
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`Sales Pracs. & Antitrust Litig., 336 F. Supp. 3d 1256, 1329 (D. Kan. 2018) (“Defendants
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`engaged in new and additional acts each time they charged the allegedly inflated prices
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`. . . . And each of those acts inflicted a new and accumulating injury on the class
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`plaintiffs”); In re Effexor Antitrust Litig., 357 F. Supp. 3d 363, 385 (D.N.J. 2018) (“[T]he
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`Court finds [the plaintiffs’] claims are timely, under the continuing-violation doctrine,” for
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`overcharges “as a result of Defendants’ settlement agreement”).
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`In sum, we conclude that the plaintiffs have alleged adequate facts in their complaint
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`to demonstrate that their claims were timely filed.
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`
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`III
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`The plaintiffs also challenge the district court’s dismissal of Counts 6, 10, 33, and
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`44 of the complaint — involving class members’ claims against Actelion under the laws
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`of Maine, Minnesota, Vermont, and Wisconsin — based on a lack of standing. The court
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`explained that the plaintiffs never purchased Tracleer in those States and so never suffered
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`any specific injury entitling them to sue under those States’ laws. The district court
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`addressed only those four counts because it had dismissed all other counts of the complaint
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`on limitations grounds. But Actelion’s motion to dismiss for lack of standing was directed
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`to all 42 counts of the complaint in which the plaintiffs alleged that class members, not the
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`plaintiffs themselves, purchased Tracleer at supracompetitive prices. Our analysis,
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`therefore, applies not only to the dismissal of the four counts, but to all other counts of the
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`complaint that were included in Actelion’s motion to dismiss for lack of standing.
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`
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`18
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`In its motion to dismiss, Actelion contended that the “plaintiffs’ 42 claims arising
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`under the laws of various states (but . . . not California, Florida, and Maryland) must be
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`dismissed for lack of Article III standing.” It also contended that those same counts must
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`be dismissed for a lack of “statutory standing.” Both arguments were based on the ground
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`that the plaintiffs did not purchase or pay for Tracleer in any of the States involved and
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`therefore that those States’ laws were not implicated.
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`In its ruling, the district court set aside Actelion’s argument for lack of Article III
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`standing and grounded its dismissal on “Actelion’s standing arguments through the lens of
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`statutory standing” only. It explained that the “Plaintiffs fail[ed] to allege . . . that [they]
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`suffered any specific harm” in those States; they alleged only that they purchased Tracleer
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`“in Maryland, California, and Florida.” Actelion has not challenged the district court’s
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`approach on appeal, although it also has not abandoned any lack-of-standing argument it
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`has.
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`To begin, it is important to note that the plaintiffs sued on their own behalf and
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`purportedly, under Rule 23, on behalf of all others similarly situated. But that putative
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`class has not been certified, and therefore, Actelion’s motion to dismiss for lack of standing
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`could only be directed to the plaintiffs’ claims under the laws of States other than Maryland,
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`California, and Florida. It is undisputed that the plaintiffs alleged purchases o
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