throbber

`
`NOT PRECEDENTIAL
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`______________
`
`No. 21-3026
`______________
`
`PERRIGO CO; PERRIGO ISRAEL PHARMACEUTICALS, LTD, NKA Padagis Israel
`Pharmaceuticals LTD; PERRIGO COMPANY OF SOUTH CAROLINA, INC, NKA
`Padagis Israel Pharmaceuticals LTD,
`Appellants
`
`
`v.
`
`ABBVIE INC; ABBOTT LABORATORIES; UNIMED PHARMACEUTICALS LLC;
`BESINS HEALTHCARE INC
`______________
`
`On Appeal from the United States District Court
`for the District of New Jersey
`(No. 2:20-cv-17560)
`U.S. District Judge: Honorable Brian R. Martinotti
`______________
`
`Submitted Under Third Circuit L.A.R. 34.1(a)
`July 5, 2022
`______________
`
`Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges.
`
`(Filed: July 21, 2022)
`______________
`
`OPINION∗
`______________
`
`
`∗ This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
`not constitute binding precedent.
`
`
`
`

`

`
`
`SHWARTZ, Circuit Judge.
`
`Plaintiffs Perrigo Co. and its corporate relatives sued Defendants Abbvie Inc.,
`
`Abbott Laboratories, and others for violating the Sherman Act. Because the District
`
`Court correctly held that the parties’ 2012 settlement agreement released Plaintiffs’
`
`claim, we will affirm the order dismissing the complaint.
`
`I
`
`A
`
`
`
`AndroGel is a brand-name topical gel used to treat hypogonadism.
`
`Defendants Unimed and Besins hold U.S. Patent No. 6,503,894 (‘894 patent), which
`
`claims a pharmaceutical composition that treats this condition.1 Fed. Trade Comm’n v.
`
`AbbVie, Inc., 976 F.3d 327, 341 (3d Cir. 2020). Defendants AbbVie and Abbott sell and
`
`distribute two types of AndroGel covered by the ‘894 patent, including AndroGel 1%. In
`
`2000, the Food and Drug Administration (“FDA”) approved AndroGel 1% and
`
`Defendants launched the brand-name product.
`
`B
`
`
`
`Plaintiffs produce a generic version of AndroGel 1% (the “1% generic”). In 2011,
`
`Plaintiffs filed a hybrid New Drug Application (“NDA”) seeking FDA approval to
`
`produce the 1% generic. Pursuant to the Hatch-Waxman Act,2 21 U.S.C.
`
`
`1 The ‘894 patent expired in August 2020. AbbVie, 976 F.3d at 342.
`2 A generic pharmaceutical manufacturer may apply for FDA approval using a
`hybrid New Drug Application under § 505(b)(2) of the Food, Drug, and Cosmetics Act,
`21 U.S.C. § 355(b)(2); 21 C.F.R. § 314.54(a). Under that section, the generic
`manufacturer must submit a paragraph IV notice in which it certifies that “manufacture,
`
`
`
`
`2
`
`

`

`
`
`§ 355(b)(2)(A)(iv), Plaintiffs sent Defendants a “paragraph IV notice[],” which stated
`
`that the 1% generic does not infringe the ‘894 patent, App. 51, and that “a lawsuit
`
`asserting the ‘894 patent against [Plaintiffs] would be objectively baseless and a sham . . .
`
`for the improper purpose of, inter alia, delaying [Plaintiffs’] NDA approval,” D. Ct. ECF
`
`No. 70-7 at 55. Within 45 days of receiving the notice, Defendants sued Plaintiffs for
`
`patent infringement. Abbott Prods., Inc. v. Perrigo Co., No. 3:11-cv-06357 (D.N.J. 2011)
`
`(“the Litigation”). The Litigation triggered the Hatch-Waxman Act’s automatic 30-
`
`month stay on the FDA’s ability to approve the 1% generic. 21 U.S.C.
`
`§ 355(j)(5)(B)(iii).
`
`
`
`Before Plaintiffs filed an answer, the parties settled.3 Among other things, the
`
`parties agreed to a mutual release, which states:
`
`[T]he respective Parties and parents . . . hereby fully, finally and forever
`release . . . the other Parties and each of their respective Affiliates . . . from
`any and all claims, demands, damages, liabilities, obligations, and causes of
`action accruing prior to the Effective Date (including without limitation,
`costs, expenses, and attorneys’ fees, and those capable of being asserted in
`any complaint, answer, affirmative defenses, counterclaims and amendments
`thereto or any other filings that were or could have been filed in the
`Litigation), arising out of, related to, or in connection with: (i) the Litigation,
`. . . and/or (iv) for acts, transactions, activities, facts, matters or omissions
`
`use, or sale” of the generic will not infringe patents relating to the brand-name drug. 21
`U.S.C. § 355(b)(2)(A)(iv). Upon receipt of a paragraph IV notice, the patent holder has
`45 days to decide whether to sue for patent infringement. 21 U.S.C. § 355(c)(3)(C). “If
`the patentee sues within the time limit, the FDA cannot approve the company’s
`application for a generic drug until . . . (1) a court holds that the patent is invalid or has
`not been infringed; (2) the patent expires; or (3) 30 months elapse, as measured from the
`date the patentee received the paragraph IV notice.” AbbVie, 976 F.3d at 340 (citing 21
`U.S.C. § 355(j)(5)(B)(iii)).
`3 The agreement granted Plaintiffs a license to begin marketing the 1% generic no
`later than December 27, 2014—more than five years before the ‘894 patent would
`expire—and $2 million for avoided litigation expenses.
`3
`
`
`
`

`

`
`
`that are or could have been the subject matter of the Litigation, whether
`known or unknown, and in each case arising before the Effective Date[.]
`
`App. 112. The “Effective Date” is March 27, 2012.
`
`In 2013, the FDA approved Plaintiffs’ 1% generic and issued a favorable
`
`therapeutic equivalence (TE)4 rating for the product in 2014. Plaintiffs launched the 1%
`
`generic on December 27, 2014.5
`
`C
`
`In 2020, Plaintiffs sued Defendants for violating Section 2 of the Sherman Act, 15
`
`U.S.C. § 2. Plaintiffs allege that the Litigation was a “sham” that “delayed [Plaintiffs’]
`
`launch of its generic version of AndroGel 1%.” App. 41 ¶ 2. They further allege that
`
`because of the sham lawsuit, Defendants “were able to maintain monopoly power” by
`
`
`4 Certain TE ratings trigger state law requirements that pharmacists “dispense a
`therapeutically equivalent, lower-cost generic drug in place of a brand drug.” AbbVie,
`976 F.3d at 340 (quotation marks, citations, and alterations omitted).
`5 Plaintiffs also sought FDA approval in 2013 to market the 1.62% generic, and
`Defendants again sued for patent infringement. Unimed Pharms. LLC v. Perrigo Co.,
`No. 1:13-cv-00236 (D. Del. Feb. 15, 2013). Plaintiffs asserted in a counterclaim that the
`2013 litigation was a sham. As in 2012, the parties settled, and this second agreement
`granted Plaintiffs a license to market the 1.62% generic beginning in October 2018 and
`included a similar release of claims. Because Plaintiffs’ instant suit is based only on
`allegations that the 2011 litigation about the 1% generic was a sham—and because the
`2013 litigation concerned only the 1.62% generic—the 2013 litigation is irrelevant.
`4
`
`
`
`

`

`
`
`“delaying the entry of much less expensive competitive generic products.” App. 63 ¶ 79.
`
`In their answer, Defendants asserted, in relevant part, an affirmative defense that
`
`Plaintiffs’ claim is barred by the 2012 settlement agreement, which Defendants attached
`
`as an exhibit.
`
`Defendants moved for judgment on the pleadings, which the District Court granted
`
`with prejudice. Perrigo Co. v. AbbVie Inc., No. 2:20-cv-17560, 2021 WL 4551397, at
`
`*10-11 (D.N.J. Sept. 30, 2021). The Court found that the release barred Plaintiffs’ claim
`
`because (1) the claim accrued before the Effective Date of the settlement agreement, id.;
`
`(2) the absence of FDA approval on the 1% generic did not preclude Plaintiffs from
`
`establishing an injury when the Litigation was filed, id. at *8; and (3) the speculative
`
`damages exception to the general accrual rule did not apply because Plaintiffs faced only
`
`uncertainty that related to “the scope of [their] damages, not whether [they] had, in fact,
`
`suffered an injury,” id. at *9.
`
`Plaintiffs appeal.
`
`II6
`
`A
`
`Under the Noerr-Pennington doctrine, “a party who petitions the government for
`
`redress generally is immune from antitrust liability.” Cheminor Drugs, Ltd. v. Ethyl
`
`
`6 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1337. We have
`jurisdiction under 28 U.S.C. § 1291. “We review an order granting or denying a motion
`for judgment on the pleadings de novo. Judgment will not be granted unless the movant
`clearly establishes there are no material issues of fact, and he is entitled to judgment as a
`matter of law.” Bedoya v. Am. Eagle Express Inc., 914 F.3d 812, 816 n.2 (3d Cir. 2019)
`
`
`
`
`5
`
`

`

`
`
`Corp., 168 F.3d 119, 122 (3d Cir. 1999) (citations omitted). The doctrine does not apply,
`
`however, where a lawsuit is a “mere sham to cover what is actually nothing more than an
`
`attempt to interfere directly with the business relationships of a competitor.” E. R.R.
`
`Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961).
`
`To determine whether a lawsuit is a “sham,” courts apply a two-part test:
`
`First, the lawsuit must be objectively baseless in the sense that no reasonable
`litigant could realistically expect success on the merits. [Second, o]nly if
`challenged litigation is objectively meritless may a court examine the
`litigant’s subjective motivation. Under this second part . . . , the court should
`focus on whether the baseless lawsuit conceals an attempt to interfere directly
`with the business relationships of a competitor through the use of the
`governmental process—as opposed to the outcome of that process—as an
`anticompetitive weapon.
`
`Prof’l Real Estate Invs., Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60-61 (1993)
`
`(citations omitted). A plaintiff asserting a substantive antitrust violation arising from a
`
`sham litigation must also prove that “the challenged lawsuit is ‘causally linked’ to an
`
`antitrust injury.” In re Wellbutrin XL Antitrust Litig. Indirect Purchaser Class, 868 F.3d
`
`132, 149 (3d Cir. 2017) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S.
`
`477, 489 (1977)). An antitrust injury is an “injury of the type the antitrust laws were
`
`intended to prevent.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 101
`
`
`(internal quotation marks and citations omitted). In ruling on a motion for judgment on
`the pleadings, a court may examine the complaint, the answer, “any matter of which the
`court can take judicial notice for the factual background of the case,” L-7 Designs, Inc. v.
`Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011), and “written instrument[s] that [are]
`exhibit[s] to a pleading,” Fed. R. Civ. P. 10(c), so long as those exhibits are “indisputably
`authentic documents,” Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). Because
`Defendants attached the 2012 settlement agreement to their answer, and Plaintiffs do not
`dispute the authenticity of the agreement, we may consider the settlement agreement.
`6
`
`
`
`

`

`
`
`(3d Cir. 2010) (quoting Brunswick, 429 U.S. at 489); see also Atl. Richfield Co. v. USA
`
`Petroleum Co., 495 U.S. 328, 334 (1990) (“[An] injury, although causally related to an
`
`antitrust violation, nevertheless will not qualify as ‘antitrust injury’ unless it is
`
`attributable to . . . an anti-competitive aspect of [the defendant’s] practice under
`
`scrutiny.”).
`
`
`
`Plaintiffs’ complaint sets forth allegations supporting a sham litigation claim that
`
`“could have been the subject matter of” the Litigation. App. 112. First, Plaintiffs allege
`
`that the Litigation was “objectively baseless.” App. 60 ¶ 69. This allegation mirrors
`
`Plaintiffs’ September 2011 paragraph IV notice, anticipating Defendants’ lawsuit, which
`
`stated, “a lawsuit asserting the ‘894 patent against [Plaintiffs] would be objectively
`
`baseless and a sham.” D. Ct. ECF No. 70-7 at 55.
`
`Second, Plaintiffs allege that the Litigation was brought for an improper purpose
`
`and thus was “subjectively baseless.” See App. 61 ¶ 72. This allegation also tracks the
`
`paragraph IV notice, which stated that any infringement suit would be “brought in bad
`
`faith for the improper purpose of, inter alia, delaying [Plaintiffs’] NDA approval.” D. Ct.
`
`ECF No. 70-7 at 55.
`
`Third, Plaintiffs allege that, but for the Litigation, they could have marketed a
`
`cheaper 1% generic sooner, and thus the lawsuit reduced competition for AndroGel. The
`
`complaint does not allege that the antitrust injury only occurred or could only have been
`
`
`
`7
`
`

`

`
`
`discovered after March 27, 2012.7 Instead, Plaintiffs explicitly rely on the “filing” of the
`
`Litigation itself, which occurred on October 31, 2011, as blocking their market entry.
`
`App. 63 ¶ 79.
`
`Thus, the complaint itself and the documents integral to it show that the injury
`
`underlying Plaintiffs’ sham litigation claim occurred when the Litigation was filed in
`
`2011.8 Because the settlement agreement bars “any and all claims . . . accruing prior to
`
`[March 27, 2012], . . . arising out of, related to, or in connection with . . . the [Litigation]
`
`. . . [or] acts . . . that are or could have been the subject matter of the Litigation . . . arising
`
`
`7 Plaintiffs cite Wellbutrin for the proposition that to prove antitrust injury, a party
`asserting a sham litigation claim in the generic pharmaceuticals context must prove they
`“could have launched even in the absence of the 30-month stay,” 868 F.3d at 152, and
`argue that they were unable to make such an allegation before March 27, 2012 because
`they lacked FDA approval. Plaintiffs lacked FDA approval due, in part, to the litigation
`which stayed FDA activity for thirty months. Furthermore, Wellbutrin is distinguishable
`because there, the generic manufacturer “could [not] have launched” even without the
`alleged sham lawsuit because of, among other things, a 180-day first-filer exclusivity
`period. Id. at 152-53.
`In addition, Plaintiffs argue that their complaint did not state facts showing actual
`injury prior to the Effective Date of the 2012 Settlement Agreement, citing our holding in
`Host International, Inc. v. MarketPlace, PHL, LLC, that a plaintiff must show “actual
`injury attributable to something the antitrust laws were designed to prevent, not potential
`injury.” 32 F.4th 242, 251-52 (3d Cir. 2022). Plaintiffs, however, pleaded “actual
`injury” to competition from “filing sham litigation and delaying the entry of much less
`expensive generic products,” App. 63 ¶ 79, and pleaded that filing occurred on October
`31, 2011.
`8 Some courts have held that sham litigation claims are compulsory counterclaims
`under Fed. R. Civ. P. 13(a) in the patent infringement suit alleged to be a sham. See, e.g.,
`Critical-Vac Filtration Corp. v. Minuteman Intern., Inc., 233 F.3d 697, 700-01 (2d Cir.
`2000); U.S. Philips Corp. v. Sears Roebuck & Co., 55 F.3d 592, 595-97 (Fed. Cir. 1995).
`8
`
`
`
`

`

`
`
`before [March 27, 2012],” App. 112, and Plaintiffs’ sham litigation claim “accru[ed]”
`
`prior to March 27, 2012, it was released.9
`
`B
`
`Plaintiffs contend that their sham litigation claim could not have accrued before
`
`the March 27, 2012 Effective Date because their damages at the time were speculative.
`
`Plaintiffs’ argument fails for two reasons.
`
`First, in antitrust cases, a cause of action generally “accrues and the statute [of
`
`limitations] begins to run when a defendant commits an act that injures a plaintiff’s
`
`business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971). In
`
`the sham litigation context, the injury generally occurs when the lawsuit, which is alleged
`
`to have been a sham, is filed. See, e.g., Al George, Inc. v. Envirotech Corp., 939 F.2d
`
`1271, 1274 (5th Cir. 1991) (holding the filing of allegedly sham patent-infringement suit,
`
`
`9 Plaintiffs argue that the District Court impermissibly required them to anticipate
`Defendants’ release defense in their complaint, citing Wiggins v. Albert Einstein Medical
`Center, No. 20-3129, 2022 WL 1197015, *2 (3d Cir. 2022) (per curiam). Wiggins is
`nonbinding and inapt as it involved a motion to dismiss under Rule 12(b)(6), where
`courts “generally consider only the allegations contained in the complaint, exhibits
`attached to the complaint and matters of public record.” Pension Ben. Guar. Corp. v.
`White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Here, in contrast, the
`District Court ruled on a motion for judgment on the pleadings under Rule 12(c), which
`permitted review of Defendants’ answer and the 2012 Settlement Agreement attached
`thereto. See supra n.6.
`
`
`
`9
`
`

`

`
`
`not actions in prosecuting the litigation, was the “last overt act” for statute of limitations
`
`purposes).10
`
`
`
`Here, Plaintiffs were excluded from the AndroGel market as soon as Defendants
`
`filed the Litigation. Under the Hatch-Waxman Act, an infringement suit brought within
`
`45 days of receipt of a paragraph IV notice prevents the FDA from granting approval on a
`
`generic pharmaceutical until 30 months elapse or the lawsuit resolves. See 21 U.S.C.
`
`§ 355(j)(5)(B)(iii). Because Defendants filed the Litigation within 45 days of receiving
`
`Plaintiffs’ paragraph IV notice regarding the ‘894 patent, Defendants necessarily delayed
`
`FDA approval. That delay, in turn, prevented Plaintiffs from launching the 1% generic,
`
`so Plaintiffs “fe[lt] the adverse impact” of the Litigation upon its filing. Zenith, 401 U.S.
`
`at 339.
`
`
`
`Second, while it has been said that where damages are too speculative, the cause
`
`of action has not yet accrued, id., Plaintiffs’ damages as of the date the Litigation was
`
`filed were not too speculative.11 Damages are not speculative so long as the jury may
`
`
`10 The filing of a baseless lawsuit triggers the statute of limitations for antitrust
`claims based on that lawsuit. See Brunswick Corp. v. Rigel Textile Corp., 752 F.2d 261,
`271 (7th Cir. 1984) (“Exclusion from a market is a conventional form of antitrust injury
`that gives rise to a claim for damages as soon as the exclusion occurs . . . even though, in
`the nature of things, the victim’s losses lie mostly in the future.”); see also Pace Indus. v.
`Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987) (“The initiation of [the] lawsuit is
`the final, immutable act of enforcement of an allegedly illegal contract”); accord Korody-
`Colyer Corp. v. Gen. Motors Corp., 828 F.2d 1572, 1579 (Fed. Cir. 1987). Because the
`moment when the statute of limitations runs is defined by when the claim accrues, see 15
`U.S.C. § 15b, these cases teach that sham litigation claims generally accrue at the time
`that the lawsuit alleged to have been a sham was filed.
`11 We have applied Zenith’s speculative damages exception twice before, but each
`case is distinguishable.
`
`
`
`
`10
`
`

`

`
`
`“make a just and reasonable estimate of the damages based on relevant data,” which can
`
`take the form of “probable and inferential as well as . . . direct and positive proof.”
`
`Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264 (1946).; see also Brunswick, 752
`
`F.2d at 271 (noting that absent “excessively speculative” damages, “the statute of
`
`limitations is not tolled simply in order to wait and see just how well the defendant does
`
`in the market from which he excluded the plaintiff”).
`
`Difficulty ascertaining damages must not be “confused with right of recovery.”
`
`Bigelow, 327 U.S. at 265; see also Pace, 813 F.2d at 240 (“[U]ncertain damages, which
`
`prevent recovery, are distinguishable from uncertain extent of damage, which does not
`
`
`In Continental-Wirt, we held that a portion of the plaintiffs’ damages—lost value
`to his business, which he was forced to sell due to an alleged price-fixing scheme by his
`suppliers—may have been speculative because he had not yet sold the business or had
`sufficient time to attempt to sell it. Continental-Wirt Electronics Corp. v. Lancaster Glass
`Corp., 459 F.2d 768, 770 (3d Cir. 1972). There, it was possible that the plaintiff suffered
`no damages (e.g., if the business sold at a profit) at the time the suppliers began the
`scheme, so recovery was uncertain. Here, in contrast, the Litigation delayed Plaintiffs
`from receiving FDA approval because of the Hatch-Waxman Act’s 30-month stay. 21
`U.S.C. § 355(j)(5)(B)(iii). Thus, they were excluded from the market for some period
`and unable to profit from selling the 1% generic. It was the Litigation in the first instance
`that damaged Plaintiffs because it delayed FDA approval.
`In Harold Friedman, we held that lost profits from relocating a supermarket due to
`alleged monopolization by competitors were not ascertainable at a certain date. Harold
`Friedman Inc. v. Thorofare Markets Inc., 587 F.2d 127, 138-39 (3d Cir. 1978). Two
`aspects of the case make it inapt here. First, we noted “grave reservations” there about
`whether the date from which the certainty of damages was evaluated was the last time the
`plaintiff suffered injury. Id. at 138. Here, in contrast, the complaint states that Plaintiffs
`were injured when the Litigation was filed. Second, Plaintiffs’ complaint includes: (a)
`estimates of Defendants’ profits from selling AndroGel in a market without a competing
`(and cheaper) 1% generic; and (b) allegations that Defendants “were aware” that the 1%
`generic would “erode [] sales.” See, e.g., App. 62 ¶ 77. Plaintiffs’ allegations thereby
`show that they were capable of quantifying the value of being barred from the market,
`which provides a “guidelin[e]” for calculating damages that was missing in Harold
`Friedman. See 587 F.2d at 139.
`
`
`
`11
`
`

`

`
`
`prevent recovery.”). In other words, for Plaintiffs to invoke Zenith’s speculative
`
`damages exception, they must show that prior to March 27, 2012, it was uncertain
`
`whether they would suffer damages, not simply that it was uncertain how much they
`
`would suffer. FDA approval was put on hold as soon as Defendants filed the Litigation
`
`because of Hatch-Waxman’s automatic stay. See 21 U.S.C. § 355(j)(5)(B)(iii). The
`
`uncertainty of when the FDA would issue approval—or a TE rating—is thus irrelevant to
`
`whether the lawsuit caused delay in Plaintiffs’ ability to enter the market.12
`
`Furthermore, Plaintiffs’ complaint demonstrates that they could have reasonably
`
`estimated damages before March 27, 2012. Plaintiffs allege that they “lost sales, lost
`
`profits and lost the ability to market [their] version of AndroGel 1% before December 27,
`
`2014,” App. 42 ¶ 3, and their complaint specifies Defendants’ sales and market share
`
`before the allegedly sham lawsuit was filed, see, e.g., App. 62 ¶ 77 (sales); App. 63 ¶ 81
`
`(market share). These figures enabled Plaintiffs to estimate the success of the 1% generic
`
`when it reached the market. See Brunswick, 752 F.2d at 271 (holding future profits for a
`
`
`12 Plaintiffs argue their damages were speculative because there was uncertainty
`(1) when the FDA would approve the 1% generic and (2) when and how the FDA would
`issue a TE rating, and neither were known by March 27, 2012. This assertion, however,
`appears only in Plaintiffs’ briefs, not their complaint. A party may not amend their
`pleadings by making factual assertions in a brief. Pennsylvania ex rel. Zimmerman v.
`PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988).
`Plaintiffs also appear to suggest that they might not have marketed the drug at all
`or made “any money” if contingencies failed, Appellants’ Br. at 48-49, but under this
`reasoning, practically every generic manufacturer—each of which must obtain FDA
`approval—could wait long after an infringement suit is initiated to claim the lawsuit was
`a sham, which cannot be true, as that view would render the statute of limitations
`meaningless. See Brunswick, 752 F.2d at 271 (noting that if the accrual rule allowed
`plaintiffs to “wait and see,” the statute of limitations “would be tolled indefinitely in a
`very large class of antitrust suits”).
`
`
`
`12
`
`

`

`
`
`competitor kept off the market by a patentee were not speculative because patentee’s
`
`profits provided a reasonable estimate from which jury could award damages). Thus,
`
`Plaintiffs’ damages were capable of calculation, based on Defendants’ ability to delay
`
`competition, when the Litigation was filed.13
`
`Thus, based on the pleadings, the speculative damages exception does not apply,
`
`and Plaintiffs’ claim accrued when Defendants filed the Litigation. The claim is
`
`therefore barred by the release, and the District Court correctly granted judgment on the
`
`pleadings for Defendants.
`
`III
`
`For the foregoing reasons, we will affirm the District Court’s order.
`
`
`13 Moreover, courts have rejected arguments from plaintiffs claiming an inability
`to calculate their lost profits because businesses routinely project future earnings. See,
`e.g., Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 573 (4th Cir.
`1976); City of El Paso v. Darbyshire Steel Co., 575 F.2d 521, 523 (5th Cir. 1978); see
`also Pace, 813 F.2d at 240. Plaintiffs allege that AndroGel brought in “hundreds of
`millions of dollars in sales every year,” App. 62 ¶ 77, so any argument that they are
`incapable of projecting the 1% generic’s profitability, see, e.g., Appellants’ Br. at 20
`(suggesting Plaintiffs may have lacked the capacity to bring the 1% generic to market
`under certain circumstances), is unpersuasive.
`13
`
`
`
`

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