April 13, 2021
The Fourth Circuit on Tuesday revived Baltimore’s antitrust suit accusing Actelion Pharmaceuticals of illegally pumping up the price of its drug Tracleer after the patent expired, reversing a decision that the case was time-barred and finding that it was filed within the statute of limitations.
A three-judge panel vacated a lower court’s dismissal order and remanded the suit in its published, 22-page opinion, ruling that the antitrust claims brought by the mayor of Baltimore and the city’s Government Employees Health Association did not accrue until they allegedly began paying “supracompetitive prices” for Actelion’s pulmonary artery hypertension drug after the patent expired in November 2015.
The panel determined that the suit filed in November 2018 was timely and not barred by a four-year statute of limitations that a lower court said had started in 2014 after Actelion’s “last overt anti-competitive act.”
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Tuesday’s decision is the latest in the suit alleging that Actelion, which Johnson & Johnson acquired for $30 billion in 2017, extended its patent monopoly for Tracleer past the patent’s expiration. The proposed class claims that Actelion concocted a multiyear scheme to block at least four generic manufacturers from bringing generic versions of Tracleer to market, and that they paid higher premiums for the medication than they would have if it were not for the alleged unlawful scheme.
But a lower court axed the suit in September 2019, finding that all but four of the claims were time-barred by a four-year statute of limitations, since the suit was brought more than four years after Actelion consummated settlement agreements between itself and other generic manufacturers.
The proposed class then appealed the lower court’s decision, and the Fourth Circuit told the parties Tuesday “to return to the district court and go to it.”
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The proposed class is represented by Sharon K. Robertson of Cohen Milstein Sellers & Toll PLLC.
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