Cable Line, Inc. et al v. Comcast Cable Communications of Pennsylvania, Inc. et al

REPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Pa.December 6, 2016

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CABLE LINE, INC. and McLAUGHLIN COMMUNICATIONS, INC., Plaintiffs, v. COMCAST CABLE COMMUNICATIONS OF PENNSYLVANIA, INC. et al., Defendants. ELECTRONICALLY FILED NO. 3:16-CV-1000 ORAL ARGUMENT REQUESTED (Hon. Robert D. Mariani) REPLY BRIEF IN SUPPORT OF DEFENDANT COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC’S MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT Joe H. Tucker, Jr. jtucker@tlgattorneys.com Leslie M. Greenspan lgreenspan@tlgattorneys.com TUCKER LAW GROUP, LLC 1801 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: +1.215.875.0609 Steven A. Reed (pro hac vice) steven.reed@morganlewis.com R. Brendan Fee brendan.fee@morganlewis.com Zachary M. Johns (pro hac vice) zachary.johns@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: +1.215.963.5000 Counsel for Defendant Comcast Cable Communications Management, LLC (f/k/a Comcast Cable Communications of Pennsylvania, Inc.) Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 1 of 22 i TABLE OF CONTENTS Page INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................3 I. Plaintiffs’ Brief Confirms That They Lack Antitrust Standing.......................3 II. Plaintiffs Admit That The Challenged Conduct Was Unilateral, Which Forecloses Their Antitrust Claims...................................................................6 III. Plaintiffs Do Not Identify Anticompetitive Effects In A Properly Defined Relevant Market For Cable Installation Services............................................9 A. Plaintiffs Provide No Basis For The Court To Conclude That There Is A Properly Defined Market For Cable Installation Services In The Areas Plaintiffs Previously Serviced. .......................10 B. Plaintiffs Do Not Allege Market Power By Any Defendant In The Market For Cable Installation Services........................................11 C. The Amended Complaint Does Not Allege Actionable Anticompetitive Effects In The Allegedly Restrained Market. ..........12 IV. Plaintiffs’ Claims Are Time-Barred. .............................................................13 CONCLUSION........................................................................................................15 Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 2 of 22 ii TABLE OF AUTHORITIES Page(s) CASES A.D.M. Club Mgmt. Sys., Inc. v. Gary Jonas Computing, Ltd., No. 05-cv-3943, 2006 WL 2689400 (D.N.J. Sept. 19, 2006) ..............................6 Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990)..............................................................................................4 Bell Atl. Corp. v. Twombly, 550 U.S. 554 (2007)..........................................................................................6, 7 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977)..............................................................................................3 Clear Connection v. Comcast, No. 02-02910 (E.D. Cal. Dec. 8, 2015) ..........................................................8, 10 Commonwealth v. Nat’l Collegiate Athletic Ass’n, 948 F. Supp. 2d 416 (M.D. Pa. 2013).......................................................4, 5, 7, 9 Del. State Coll. v. Ricks, 449 U.S. 250 (1980)............................................................................................15 Drumm v. Sizeler Realty Co., 647 F. Supp. 1288 (E.D. La. 1986).....................................................................14 Howard Hess Dental Labs. Inc. v. Dentsply Int’l Inc., 602 F.3d 237 (3d Cir. 2010) .................................................................................7 Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015) .................................................................................6 In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010) .............................................................................8, 9 In re Pressure Sensitive Labelstock Antitrust Litig., 566 F. Supp. 2d 363 (M.D. Pa. 2008)...................................................................7 Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997)............................................................................................14 Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 3 of 22 iii Mathews v. Lancaster Gen. Hosp., 87 F.3d 624 (3d Cir. 1996) .................................................................................12 Meijer, Inc. v. 3M, No. 04-cv-5871, 2005 WL 1660188 (E.D. Pa. July 13, 2005)...........................13 Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430 (3d Cir. 1997) ...............................................................................10 Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir. 2004) ............................................................................13 Vitale v. Marlborough Gallery, No. 93-cv-6276, 1994 WL 654494 (S.D.N.Y. July 5, 1994) .............................14 W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85 (3d Cir. 2010) .................................................................................14 STATUTES 15 U.S.C. § 1..........................................................................................................2, 7 Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 4 of 22 INTRODUCTION Rather than rebut any of the multiple bases for dismissal of their claims, Plaintiffs’ opposition brief only serves to underscore that this action is a misguided attempt to convert a garden-variety business termination dispute between Plaintiffs and Comcast into a treble damages antitrust lawsuit. Notwithstanding their liberal use of antitrust buzz words and various (and often internally inconsistent) assertions of fact that are untethered to the actual allegations in their pleading, Plaintiffs’ brief confirms that their claims are fundamentally inconsistent with basic antitrust principles and fail as a matter of law. And, their tack-on reverse discrimination claim, based upon the allegation that one of the two alleged competitors chosen to replace them was diverse, is all but ignored in Plaintiffs’ opposition brief and also fails as a matter of law. First, Plaintiffs admit that their core complaint is that Comcast’s process for selecting cable installation vendors was “irrational” and that Plaintiffs would have bested Defendants Decisive and Vitel if only Comcast had followed a “rational” process. (Opp. at 16, n. 2, 17-18.) They complain about Comcast’s selection criteria and argue that Comcast treated their competitors more leniently than them. (Id. at 7, 19-20.) But the antitrust laws are not designed to provide redress to firms who have lost in a competition they thought they should have won. Instead, as Plaintiffs’ brief concedes, the narrow purpose of the antitrust laws is to address Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 5 of 22 2 injuries that derive from reduced competition in a relevant market. (Id. at 14.) Here, Plaintiffs have failed to allege actual reduction in competition in the alleged cable installation market, much less injuries flowing from that reduction. Second, Plaintiffs’ brief provides no rational explanation why Comcast would conspire with Plaintiffs’ competitors to reduce competition in a market in which Comcast is a purchaser. The implausibility of Plaintiffs’ conspiracy theory and the fact that their real gripe is that Comcast did not choose to continue to purchase services from them is driven home by Plaintiffs’ remarkable admission that, if Comcast had chosen to replace Plaintiffs with cable installers other than Decisive and Vitel, they would be suing those competitors instead. (Opp. at 20- 21.) That admission, and Plaintiffs’ own allegations that Comcast’s decisions were unilateral (a point which is reinforced time and again by Plaintiffs’ brief), is fatal to their Sherman Act Section 1 and state law claims-all of which are founded on the notion that Comcast did not act in its own independent economic interests but rather engaged in concerted action with Defendants Decisive and Vitel. Third, instead of addressing their failure to properly allege other key elements of the antitrust claim they tried to plead-i.e., the boundaries of the posited “cable installation” market, market power on the part of Defendants in that market, and actionable anticompetitive effects-Plaintiffs’ brief focuses on an entirely different “cable services” market. By focusing their attention on a cable Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 6 of 22 3 services market rather than a cable installation market, Plaintiffs effectively concede their failure to properly allege the facts necessary to establish liability in the market they have actually posited in the Amended Complaint. Fourth, Plaintiffs’ argument that their antitrust and Section 1981 reverse discrimination claims are not time-barred ignores both controlling precedent and their pleading. For their antitrust claims, the statute of limitations began to run when Plaintiffs first suffered injury. By their own allegations, Plaintiffs began to suffer harm as of February 2012, when they were notified of the termination. Plaintiffs simply ignore that fact, arguing instead (and inconsistently) that their injury was the later loss of hope that Comcast would change its mind. For their Section 1981 claim, the statute began to run from the date they learned of the adverse act-here Comcast’s decision to terminate their business relationship-not some later date when they allegedly felt the full impact of that decision. Plaintiffs’ strained attempt to evade on point Supreme Court authority is unavailing. ARGUMENT I. Plaintiffs’ Brief Confirms That They Lack Antitrust Standing. Plaintiffs’ brief confirms that the central focus of their claims is harm to their businesses individually (Opp. at 17), which the Supreme Court has said unequivocally and repeatedly is not harm to competition and thus does not qualify as antitrust injury sufficient to confer antitrust standing. See, e.g., Brunswick Corp. Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 7 of 22 4 v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977). At bottom, the injuries about which Plaintiffs complain were caused by Comcast’s decision to end its business relationship with them, not by some (unpled) market-wide reduction in competition for cable installation services. Plaintiffs admit that to establish antitrust injury a claimant must demonstrate that its injuries flow from a “competition-reducing aspect or effect of the defendant’s behavior.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990); (Opp. at 14). But rather than direct the Court to facts in the Amended Complaint demonstrating either (1) an actual reduction in competition among the alleged cable installation market; or (2) a causal connection between that reduction and their injury, Plaintiffs simply argue that Comcast’s process for selecting vendors was “irrational.” (Opp. at 16 n. 2, 17-18.) Even if that were true, it is beyond dispute that Plaintiffs’ harm flows from Comcast’s decision-however “irrational” Plaintiffs believe it was-concerning which suppliers it wished to work with, not from any reduction in market-wide competition. As the cases Plaintiffs themselves cite hold, antitrust injury does not exist where “[a]lleged harms . . . are causally related to Defendant’s complained-of conduct, but are not alleged to have occurred as a result of lessened competition.” Commonwealth v. Nat’l Collegiate Athletic Ass’n, 948 F. Supp. 2d 416, 432 (M.D. Pa. 2013) (alleged injury that football program would be less competitive due to NCAA sanctions is Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 8 of 22 5 not an antitrust injury because this is harm to only one competitor and not an injury that flows from “lessened competition in the” market for football); (Opp. at 12.) Elsewhere in their brief, Plaintiffs double down on their flawed theory of antitrust injury, asserting that, if Comcast had employed a “rational” process for selecting subcontractors, there would have been “real competition for a contract [with Comcast that] Plaintiffs would have won.” (Opp. at 17-18.) This statement lays bare that the harm about which Plaintiffs complain was caused by Comcast’s choice of certain vendors over them. Plaintiffs do not even attempt to make the essential connection between their injuries and any reduction in output, quality, or increased prices in the alleged market for cable installation services.1 See Commonwealth v. Nat’l Collegiate Athletic Ass’n, 948 F. Supp. 2d at 434 (plaintiff failed to allege antitrust injury where the complaint did not “link any alleged harm . . . to reduced competition in the relevant markets”). Plaintiffs try to reckon with the long line of cases cited in Comcast’s opening brief rejecting similar antitrust claims in a single footnote, in which they attempt to distinguish two of Comcast’s cases on their facts and ignore the others. (Opp. at 18 n. 3.) Plaintiffs never confront the well-established principle of law that there can be no antitrust injury where a plaintiff’s alleged harm flows from the 1 Tellingly, Plaintiffs’ Counterstatement of Facts essentially repeats their quasi-contract claims from their now-withdrawn state court action, asserting that they were improperly terminated and that they made investments supposedly in reliance on a contract with Comcast. (Compare Opp. at 7-8, with Pls’ Ex. A at 2.) Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 9 of 22 6 termination of a relationship with a counterparty. (Comcast Br. at 14-15; see also, e.g., A.D.M. Club Mgmt. Sys., Inc. v. Gary Jonas Computing, Ltd., No. 05-cv- 3943, 2006 WL 2689400, at *5 (D.N.J. Sept. 19, 2006) (injuries flowing from a breach of contract do not “give rise to standing to assert anticompetitive injury under the antitrust laws” (collecting cases)).2 In sum, Plaintiffs’ antitrust claims cannot stand because they have not established antitrust injury. II. Plaintiffs Admit That The Challenged Conduct Was Unilateral, Which Forecloses Their Antitrust Claims. Plaintiffs’ brief also confirms that they have failed to allege facts supporting the essential element of an agreement among Defendants for purposes of their antitrust claims, all of which are premised on the existence of a conspiracy. First, Plaintiffs articulate a lenient pleading standard that has been rejected by the Supreme Court. Plaintiffs assert that the standard “for dismissal is higher in antitrust litigation” and that motions to dismiss should be granted “sparingly” before “ample opportunity for discovery.” (Opp. at 11-12.) While that might have been the standard applied by some courts in the past, it is not the standard now. See Bell Atl. Corp. v. Twombly, 550 U.S. 554, 558 (2007) (“[P]roceeding to 2 In reciting the standard for antitrust standing, Plaintiffs state in passing that a plaintiff “whose injuries are the means by which defendants seek to achieve their anticompetitive ends” may have antitrust standing. (Opp. at 15.) Plaintiffs, however, do not pursue this theory in their brief and the allegations in the Amended Complaint do not support application of the “inextricably intertwined” exception here. Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 173 (3d Cir. 2015). Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 10 of 22 7 antitrust discovery can be expensive” so when “a complaint…could not raise a claim of entitlement to relief, this basic deficiency should...be exposed at the point of minimum expenditure of time and money by the parties and the court.”).3 Plaintiffs are simply wrong that rote conclusions of the existence of an agreement are sufficient to survive a motion to dismiss. Second, Plaintiffs’ brief confirms that the alleged decision to terminate their relationship with Comcast was a decision Comcast made unilaterally. Plaintiffs admit that “[i]f Vitel and Decisive had not wheedled their way back into the Comcast fold, Plaintiffs would likely be suing different large firms for the same injury.” (Opp. at 20.) According to Plaintiffs, it is irrelevant and “of no moment” who the “co-conspirators” are. (Id.) This is a concession that the decision to terminate the parties’ relationship was made solely by Comcast. These statements are entirely inconsistent with the requirement under Section 1 of the Sherman Act and its state-law analogs that a plaintiff allege “facts plausibly suggesting [the existence of] a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement.” Howard Hess Dental Labs. 3 Courts in this district have expressly acknowledged that Twombly changed the pleading requirements for antitrust claims. E.g., Commonwealth v. Nat’l Collegiate Athletic Ass’n, 948 F. Supp. at 423 (Twombly changed pleading requirements in all cases such that a plaintiff must set forth “‘sufficient factual matter’ to show that the claim is facially plausible”); In re Pressure Sensitive Labelstock Antitrust Litig., 566 F. Supp. 2d 363, 370 (M.D. Pa. 2008) (Twombly was a “significant decision” that changed antitrust pleading requirements). Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 11 of 22 8 Inc. v. Dentsply Int’l Inc., 602 F.3d 237, 254 (3d Cir. 2010).4 Plaintiffs nonetheless strain to manufacture an actionable conspiracy from the lone allegation that Comcast notified Decisive and Vitel about Comcast’s decision before it informed Plaintiffs. (Opp. at 19.) But, this communication allegedly occurred after Comcast made the decision to terminate Plaintiffs.5 (Comcast Br. at 18.) There are no facts in the Amended Complaint to support Plaintiffs’ conclusory assertion that this communication was the result of a conspiracy. Nor does the Amended Complaint allege facts with respect to this communication that “tend to rule out the possibility that the defendants were acting independently.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 321 (3d Cir. 2010). Plaintiffs fail to address their own allegation that Decisive and Vitel were 4 Plaintiffs’ opposition also repeatedly alludes to the fact that Comcast acted unilaterally. (Opp. at 7 (“Comcast intended to reduce” the number of subcontractors); id. (“Comcast . . . designed a system” that Plaintiffs complain of); id. at 8 (stating that only after Comcast terminated Plaintiffs and selected Decisive and Vitel did Defendants “collude”); id. at 13 (asserting that it was “Comcast’s decision to allocate the markets to Decisive and Vitel”); id. at 15 (noting that Comcast “informed its co-conspirators of its plans” for Plaintiffs’ territories (emphasis added)).) 5 Plaintiffs cite Clear Connection v. Comcast, a decision from the Eastern District of California that involved claims against Comcast under California’s Cartwright Act, for the proposition that Comcast’s communication with Defendants about Plaintiffs’ termination alone plausibly supports the existence of a conspiracy. (Opp. at 19.) While Plaintiffs obviously hope for a similar conclusion here, the adequacy of their pleading must be determined by application of Third Circuit law to the particular facts they have alleged, not what the district court held in Clear Connection. See In re Ins. Brokerage Antitrust Litig., 618 F.3d at 321 (Plaintiffs must plead facts to plausibly suggest the existence of an agreement and “rule out the possibility that the defendants were acting independently.”). Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 12 of 22 9 the lower cost suppliers such that it would be in Comcast’s interest to contract with them, further negating any inference of concerted action. (Comcast Br. at 5.) And, Plaintiffs likewise ignore the fundamental implausibility of their theory that Comcast would conspire to reduce competition in a market in which it is a purchaser. (Comcast Br. at 17.) A core concern underlying antitrust law is that decreased competition will lead to the imposition of supra-competitive prices by firms with market power. Plaintiffs make no attempt to explain why Comcast would seek to provide such power to the companies with which it contracts. III. Plaintiffs Do Not Identify Anticompetitive Effects In A Properly Defined Relevant Market For Cable Installation Services. Plaintiffs incorrectly assert that the alleged restraint, i.e., Comcast’s decision to end its relationship with Plaintiffs and assign territories previously served by Plaintiffs to Decisive and Vitel, should be evaluated under a “quick look” standard. (Opp. at 12.) The “quick look” standard is reserved for the “exceptional case,” Commonwealth v. Nat’l Collegiate Athletic Ass’n, 948 F. Supp. 2d at 429, where there is “a horizontal agreement, that is, an agreement between competitors at the same market level” that is “highly suspicious,” In re Ins. Brokerage Antitrust Litig., 618 F.3d at 317-18. A vertical agreement involving entities at different levels of the distribution chain, such as that alleged here, must be evaluated under the rule of reason. Id. at 318 (observing that “[u]nder the Supreme Court’s jurisprudence, virtually all vertical agreements now receive a traditional rule-of- Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 13 of 22 10 reason analysis.”). Under that standard, Plaintiffs must allege a properly defined relevant market, market power, and anticompetitive effects-none of which they have done here. (Comcast Br. at 20-21.) A. Plaintiffs Provide No Basis For The Court To Conclude That There Is A Properly Defined Market For Cable Installation Services In The Areas Plaintiffs Previously Serviced. Nothing in Plaintiffs’ brief alters the conclusion that they have failed to allege properly defined relevant product and geographic markets. First, a proper product market definition requires a plaintiff to address in its pleadings the outer boundaries of the market by reference to “reasonably interchangeable” substitutes. Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 435-36 (3d Cir. 1997). Instead of pointing to allegations in the Amended Complaint that speak to the absence of interchangeable substitutes for cable installation services, Plaintiffs assert in their brief that Comcast is dominant in a market for cable services and that the market for cable installation services is “secondary and related.” (Opp. at 22.) But even if that were true, Plaintiffs do not cite to any facts from the Amended Complaint that would suggest the outer limits of the cable installation services market by reference to close substitutes, as required by controlling law. Queen City Pizza, Inc., 124 F.3d at 435-36.6 6 Plaintiffs again attempt to rely on the Clear Connection decision, this time to suggest that the “market for cable installation related to cable services does exist.” (Opp. at 23.) But the Clear Connection opinion unquestionably does not stand for Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 14 of 22 11 Second, Plaintiffs fail to provide the Court with any basis to conclude that they have properly alleged the metes and bounds of the relevant geographic market. Plaintiffs argue-without any citation to authority-that they have defined a geographic market by listing the territories they previously serviced. (Opp. at 21.) A proper geographic market, however, must be defined from the perspective of the consumer of the services (in an alleged sell-side conspiracy) or from the perspective of the seller of the services (in an alleged buy-side conspiracy). (Comcast Br. at 21-22.) In either event, references to areas Plaintiffs formerly serviced are insufficient to establish a proper geographic market. (Id. at 23.) B. Plaintiffs Do Not Allege Market Power By Any Defendant In The Market For Cable Installation Services. The same misunderstanding of antitrust law that pervades Plaintiffs’ flawed definition of the relevant market also infects their argument as to Defendants’ purported market power. Plaintiffs contend that Comcast has market power in the cable services market and cites to so-called evidence of “actual harm” in the form of increased prices and fees and decreased quality of cable services. (Opp. at 24.) This, however, says nothing about the market power of any Defendant in the market for cable installation services, which is a market in which Comcast is a that proposition. The court never addressed the question of whether the plaintiff in that case properly alleged the boundaries of a relevant product market with reference to reasonably interchangeable substitutes, as required by Third Circuit precedent. (Pls’ Ex. B at 9.) Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 15 of 22 12 customer, not a competitor, and the market that Plaintiffs specifically claim was restrained by the alleged conduct challenged in the Amended Complaint. C. The Amended Complaint Does Not Allege Actionable Anticompetitive Effects In The Allegedly Restrained Market. Plaintiffs’ brief goes to great lengths to identify claimed anticompetitive effects in what is ultimately the wrong market. Plaintiffs contend that there have been price and fee increases in the market for cable services and cite to the impact of consolidation “of the cable industry.” (Opp. at 26.) This, however, is not the same as alleging increases in the price of cable installation services, which is the market that Plaintiffs say was restrained (and the only market in which they compete). Plaintiffs also have not connected any purported increase in price or decrease in output in the cable services market to a corresponding increase in price in the cable installation market that could be attributable to Comcast’s alleged conduct. See Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641 (3d Cir. 1996) (a plaintiff must allege that the “challenged conduct affected the prices, quantity or quality of goods or services, not just his own welfare”). At most, Plaintiffs argue that the quality of cable installation services have decreased since their termination. (Opp. at 26-27; id. at 25 (“[t]he drop in quality is a central allegation in this case”).) But, Plaintiffs fail to distinguish-or even mention-the case law cited by Comcast holding that a reduction in quality alone is not sufficient to plead anticompetitive effects. (Comcast Br. at 29.) Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 16 of 22 13 IV. Plaintiffs’ Claims Are Time-Barred. Plaintiffs concede that a four-year statute of limitations applies to all of their claims (Opp. at 27) and admit that they first suffered the injury about which they complain in February 2012 when Comcast decided and they were notified that they were being terminated (Am. Compl. ¶¶ 33, 39, 41, 44-45). Yet Plaintiffs argue that their antitrust and Section 1981 claims are not time barred because the terminations did not become effective until May 27, 2012. (Opp. at 27-28.) Plaintiffs’ arguments are wrong as a matter of law. First, with respect to their antitrust claims, Plaintiffs contend that they have alleged a continuing conspiracy and that the May 27, 2012 effective date (“when terminations were formalized” (Am. Compl. ¶ 106)) constituted a new overt act in furtherance of the alleged conspiracy. (Opp. at 27-28.) But, even if the “formalization” of the termination could be considered a separate overt act, acts that “are merely unabated inertial consequences of a single act do not restart the statute of limitations.” Varner v. Peterson Farms, 371 F.3d 1011, 1019 (8th Cir. 2004); Meijer, Inc. v. 3M, No. 04-cv-5871, 2005 WL 1660188, at *3 (E.D. Pa. July 13, 2005). In other words, “a new antitrust cause of action does not accrue to a plaintiff when an alleged antitrust offender simply makes a single business decision which becomes the basis of an antitrust suit . . . and continues to adhere to that initial decision which causes no new and unrelated competitive injury.” Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 17 of 22 14 Drumm v. Sizeler Realty Co., 647 F. Supp. 1288, 1291 (E.D. La. 1986), aff’d, 817 F.2d 1195 (5th Cir. 1987); see also Klehr v. A.O. Smith Corp., 521 U.S. 179, 190 (1997) (continuing violation exception not available where plaintiffs could not point to a new act that “could have caused [plaintiffs] harm over and above the harm that the earlier acts caused.”). According to the Amended Complaint, Plaintiffs immediately began to suffer injury in February 2012 after Comcast informed them of its decision. (Am. Compl. ¶¶ 33, 39, 41, 44-45.) Plaintiffs do not even acknowledge, much less dispute, this alleged fact in their brief. The alleged fact that the termination became effective on May 27, 2012 does not give rise to a new and different injury within the limitations period. Instead, as Plaintiffs put it, the termination simply was a “reaffirmation” (Opp. at 28) of the February notice. See Vitale v. Marlborough Gallery, No. 93-cv-6276, 1994 WL 654494, at *5 (S.D.N.Y. July 5, 1994) (a “reaffirmation of a previous act” is insufficient to invoke the continuing conspiracy exception to the statute of limitations). This readily distinguishes this case from those upon which Plaintiffs rely and demonstrates that the continuing conspiracy exception does not extend the accrual date for Plaintiffs’ claims here.7 See W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 107 (3d Cir. 2010). 7 Plaintiffs also assert that their injury only occurred when their hopes that Comcast would change its mind were “fully extinguished.” (Opp. at 28.) Even if the loss of hope were a cognizable antitrust injury (it is not), Plaintiffs’ creative argument cannot be squared with the allegations in their pleading. Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 18 of 22 15 Second, Plaintiffs attempt to avoid the statute of limitations on their Section 1981 claim by stating that they “trace their injury to” the May 27, 2012 effective date of their termination. (Opp. at 29.) Plaintiffs’ argument is foreclosed by Supreme Court precedent. As Comcast explained in its opening brief, the Supreme Court in Del. State Coll. v. Ricks, 449 U.S. 250 (1980) held that a Section 1981 claim accrues for statute of limitations purposes when the allegedly discriminatory “decision was made and communicated” to Plaintiff. Id. at 258; (Comcast Br. at 32). Even if, as Plaintiffs argue, “the consequences of the acts became most painful” at a later date, that does not delay the date on which the statute of limitations accrues. Id. (citation omitted). Applying those controlling principles here, Comcast decided and Plaintiffs were informed of their termination in February 2012 at the latest, which means that the statute of limitations expired on February 2016-three months before Plaintiffs commenced this action. Plaintiffs’ 1981 claim is, therefore, barred on the face of the pleadings. CONCLUSION For all the foregoing reasons, the Amended Complaint should be dismissed. Because Plaintiffs have had multiple opportunities to state a claim, and further amendment would be futile, dismissal should be with prejudice. Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 19 of 22 16 Dated: December 6, 2016 Respectfully submitted, /s/ Steven A. Reed Steven A. Reed (pro hac vice) (PA60145) steven.reed@morganlewis.com R. Brendan Fee (PA91382) brendan.fee@morganlewis.com Zachary M. Johns (pro hac vice) (PA313507) zachary.johns@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: +1.215.963.5000 -and- Joe H. Tucker, Jr. (PA56617) jtucker@tlgattorneys.com Leslie M. Greenspan (PA91639) lgreenspan@tlgattorneys.com TUCKER LAW GROUP, LLC 1801 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: +1.215.875.0609 Counsel for Defendant, Comcast Cable Communications Management, LLC (f/k/a Comcast Cable Communications of Pennsylvania, Inc.) Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 20 of 22 CERTIFICATE OF COMPLIANCE WITH LENGTH LIMITATIONS The foregoing Memorandum of Law complies with the 15-page limitation in Local Rule 7.8(b)(1). /s/ R. Brendan Fee Counsel for Defendant, Comcast Cable Communications Management, LLC (f/k/a Comcast Cable Communications of Pennsylvania, Inc.) Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 21 of 22 CERTIFICATE OF SERVICE I hereby certify that on this 6th of December, 2016, the undersigned filed the foregoing Reply Brief in Support of Defendant Comcast Cable Communications Management, LLC’s Motion to Dismiss Plaintiffs’ Amended Complaint via the Court’s CM/ECF system, which sent notice to all counsel of record in this action. /s/ R. Brendan Fee Counsel for Defendant, Comcast Cable Communications Management, LLC (f/k/a Comcast Cable Communications of Pennsylvania, Inc.) Case 3:16-cv-01000-RDM Document 58 Filed 12/06/16 Page 22 of 22 UNPUBLISHED OPINIONS Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 1 of 20 A.D.M. Club Management Systems, Inc. v. Gary Jonas..., Not Reported in... 2006 WL 2689400, 2006-2 Trade Cases P 75,460 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2006 WL 2689400 United States District Court, D. New Jersey. A.D.M. CLUB MANAGEMENT SYSTEMS, INC., Club Solutions, LLC, Jonas Mid- Atlantic, Inc., Clubsoft, Inc., Plaintiffs, v. GARY JONAS COMPUTING, LTD., CSI USA Distribution, Inc., Defendants. No. Civ.A.05-3943 (HAA). | Sept. 19, 2006. Attorneys and Law Firms Richard Marcickiewicz, Sears, Sweeney & Marcickiewicz, Denville, NJ, for Plaintiffs. Robert A. Assuncao, DLA Piper Rudnick Gray Gary U.S. LLP, Edison, NJ, for Defendants. OPINION AND ORDER ACKERMAN, Senior District Judge: *1 This matter comes before the Court on a motion to dismiss on behalf of Defendants Gary Jonas Computing, Ltd. and CSI USA Distribution, Inc. (“Jonas”). For the following reasons, Defendants' motion is GRANTED. Background Defendant Gary Jonas Computing, Ltd. is a Canadian corporation with its principal place of business in Jenkintown, Pennsylvania. Defendant CSI USA Distribution, Inc. (“CSI”) is a Delaware corporation with its principal place of business in Canada. CSI is a corporate affiliate of Gary Jonas Computing, Ltd. Hereinafter Defendants are collectively and interchangeably referred to as “Jonas.” The Plaintiffs are four companies: A.D.M. Club Management Systems, Inc. (“ADM”); Club Solutions, LLC. (“Club Solutions”); Jonas Mid-Atlantic, Inc. (“Mid-Atlantic”); and Clubsoft, Inc. (“Clubsoft”). Jonas is engaged in the business of developing and selling specialized computer software that is utilized in various membership clubs, e.g., country clubs, tennis clubs and yacht clubs, throughout North America. Jonas marketed, sold and distributed its software to private clubs through independent sales representatives referred to as JSTARs (Jonas Sales Team Authorized Representatives). Each of the four Plaintiffs was, at all relevant times, a JSTAR, which integrated, distributed and developed technology solutions to private clubs in an assigned, exclusive territory. The Plaintiff companies are each organized under a different state's laws, i.e., New Jersey (ADM), South Carolina (Club Solutions), North Carolina (Mid- Atlantic), and Kansas (Clubsoft). Each JSTAR served two primary functions. First, each acted as a distributor of Jonas Software by purchasing the software, at a discounted price, directly from Jonas. Each JSTAR then resold the software at a retail price to individual private clubs. Second, each JSTAR sold, on behalf of Jonas, certain “Support and Enhancement” packages to the same private clubs. These packages provided the private clubs with ongoing support of the Jonas software they purchased. The packages also provided updates to the software such that the private clubs would not have to purchase a whole new version of the Jonas software. In return for selling the Support and Enhancement packages, each JSTAR was to receive sales commissions. In early January 2005, Jonas sought to make certain amendments to each JSTAR's respective agreement with Jonas. Allegedly, the amendments sought to eliminate the commissions previously earned for selling Support and Enhancement packages and to make future commissions valid for two years following such sales. When three of the four Plaintiffs notified Jonas of their disagreement with the amendments, Jonas terminated them as authorized sales representatives. One of the Plaintiffs, A.D.M, signed and returned the letter of amendments, but included some of its own proposed changes. When Jonas failed to return a countersigned copy, ADM sent another letter attempting to withdraw the letter it had sent with the proposed changes. Shortly thereafter, Jonas sent a countersigned copy of A.D.M's letter with proposed changes, despite having already received ADM's withdrawal letter. Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 2 of 20 A.D.M. Club Management Systems, Inc. v. Gary Jonas..., Not Reported in... 2006 WL 2689400, 2006-2 Trade Cases P 75,460 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 Finally, between December 2003 and October 2005, Jonas acquired three of its competitors, which also developed and sold specialized software to private clubs. As a result of these acquisitions, Jonas allegedly controls approximately two-thirds (2/3) of the private club software market in North America. Count 1 of Plaintiffs' 13-count Complaint alleges that Jonas violated the Sherman Antitrust Act, 15 U.S.C. § 2, by monopolizing or attempting to monopolize the private club software market. Count 2 seeks a Declaratory Judgment that each Plaintiff be paid commissions for the Support and Enhancement packages each of them sold. Count 3 seeks a Declaratory Judgment in ADM's favor that the amendments never became part of its agreement with Jonas. Counts 4-7 allege breach of contract on behalf of each of the four Plaintiffs. Similarly, counts 8-11 allege wrongful termination and breach of the agreement's implied covenant of good faith and fair dealing on behalf of each of the four Plaintiffs. Count 12 seeks statutory damages under North Carolina law on behalf of Club Solutions (the South Carolina company) and Count 13 seeks statutory damages under Illinois law on behalf of Mid-Atlantic (the North Carolina company). Defendants bring this motion to dismiss Counts 1, 12, and 13 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In addition, Defendants move to dismiss the other counts, 2-11, under Rule 12(b)(2) for lack of personal jurisdiction. Defendants also move to dismiss Counts 2-11 based upon Rule 12(b)(3) for improper venue. Finally, Defendants assert that Counts 2-11 should also be dismissed based upon a forum selection clause in the respective agreements between Jonas and each Plaintiff and for forum non conveniens. Analysis A. Antitrust Claim Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), the Court is required to accept as true the facts and allegations contained in the complaint and all reasonable inferences drawn therefrom, and to view the facts in the light most favorable to the non- moving party. Sadruddin v. City of Newark, 34 F.Supp.2d 923, 925 (D.N.J.1999); see also Gen. Motors Corp. v. New A Chevrolet, Inc., 263 F.3d 296, 325 (3d Cir.2001). While the Court will accept as true all reasonable inferences and well-pleaded allegations, it will not accept “unsupported conclusions and unwarranted inferences” or legal conclusions cast in the form of factual allegations. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2002). In the complaint, the claimant must set forth sufficient information to provide defendant with notice of the plaintiff's claims, such as the elements of the claims. Id; see also Fed.R.Civ.P. 8(a)(2). A “complaint will be deemed to have alleged sufficient facts if it adequately put the defendants on notice of the essential elements of the plaintiff['s] cause of action.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). The Supreme Court has explained: *3 The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is “a short and plain statement of the claim” that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47-48 (1957). “The court may dismiss the complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In seeking to dismiss Plaintiffs' antitrust claim under Rule 12(b)(6), Jonas focuses on whether the Plaintiffs have antitrust standing. Assessing whether a party has antitrust standing involves the question of whether the alleged injury “is of the type that the antitrust statute was intended to forestall.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 538 (1983). As the Third Circuit has articulated, “[i]f the injury is not of the requisite type, even though the would-be plaintiff may have suffered an injury as a result of conduct that violated the antitrust laws, he or she has no standing to bring a private action under the antitrust laws to recover for it.” Barton & Pittinos, Inc. v. SmithKline Beecham Corp., 118 F.3d 178, 181 (3d Cir.1997). In Barton & Pittinos, the Third Circuit amalgamated the Supreme Court's analysis in Associated General Contractors into a formulation of factors that are relevant for this Court to consider in this antitrust standing challenge: (1) the causal connection between the antitrust violation and the harm to the plaintiff and the intent Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 3 of 20 A.D.M. Club Management Systems, Inc. v. Gary Jonas..., Not Reported in... 2006 WL 2689400, 2006-2 Trade Cases P 75,460 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 by the defendant to cause that harm, with neither factor alone conferring standing; (2) whether the plaintiff's alleged injury is of the type for which the antitrust laws were intended to provide redress; (3) the directness of the injury, which addresses the concerns that liberal application of standing principles might produce speculative claims; (4) the existence of more direct victims of the alleged antitrust violations; and (5) the potential for duplicative recovery or complex apportionment of damages. Barton & Pittinos, 118 F.3d at 181. The crux of Jonas's argument against Plaintiffs' antitrust standing focuses on the second and fourth factor. The second factor asks whether the plaintiff has an antitrust injury. “ ‘A plaintiff who is neither a competitor nor a consumer in the relevant market does not suffer antitrust injury.” ’ Schuylkill Energy Res., Inc. v. Penn. Power & Light Co., 113 F.3d 405, 415 (3d Cir.1997) (quoting Vinci v. Waste Mgmt., Inc., 80 F.3d 1372, 1376 (9th Cir.1996)). “[A] commercial intermediary, such as a distributor or sales representative, generally lacks standing because its antitrust injury is too remote.” The Serpa Corp. v. McWane, Inc., 199 F.3d 6, 11 (1st Cir.1999); see also Gregory Mktg. Corp. v. Wakefern Food Corp., 787 F.2d 92, 96 (3d Cir.1986). “[M]arket definition is not determined by formal labels, but rather takes into account ‘the realities of competition.” ’ Barton & Pittinos, 118 F.3d at 183 (quoting Weiss v. York Hosp., 745 F.2d 786, 826 (3d Cir.1984)). *4 Plaintiffs, in their Amended Complaint, declare that they each served as one of Jonas's “ ‘Authorized Representatives' in an exclusive assigned territory, in which each of them marketed Jonas Software, as well as Support and Enhancement packages.” (Am.Compl.¶ 10.) Moreover, “[i]n that capacity, each Plaintiff ... acted as a distributor of Jonas Software, who bought Jonas Software directly from Gary Jonas at a discounted price, and who then resold the same to Private Club customers at a retail price ... and each acted as a sales representative in the sale of Support and Enhancement packages .” (Id.) Plaintiffs declare in their brief that they are consumers and/or competitors in the marketplace alongside Jonas and therefore that they have proper standing. Plaintiffs point to the allegation in their complaint, that they bought software directly from Jonas and resold it, as sufficient proof that they were consumers. (Pls.' Br. at 13.) Similarly, Plaintiffs argue that because Jonas allegedly violated the respective exclusive agreements by selling directly to the private clubs, such violation makes Plaintiffs competitors of Jonas. (Id.) In Gregory Marketing, the Third Circuit upheld this Court's grant of a motion to dismiss under similar circumstances. See Gregory Mktg., 787 F.2d at 92. In Gregory Marketing, the Third Circuit agreed with this Court that the broker in that case was not a proper party to bring suit under the antitrust laws. Id. The plaintiff in Gregory Marketing sold products to commercial distributors and retailers on behalf of an apple juice manufacturer. The plaintiff received compensation in the form of a percentage of gross sales of the manufacturer's products. Id. When the plaintiff discovered that the manufacturer was offering special discounts to one bulk purchaser, but not others, the plaintiff complained to the manufacturer that he thought the discounts were unlawful. Id. at 93. After further dispute over this alleged unlawful activity, the manufacturer terminated its brokerage agreement with the plaintiff. Id. The plaintiff thereafter brought suit against the manufacturer for violating the Robinson-Patman Act, 15 U.S.C. § 13(a). Id. The plaintiff filed its complaint pursuant to 15 U.S.C. § 15 (1985), the same section giving Plaintiffs in the instant suit a private right of action in antitrust violation lawsuits. The court of appeals, in Gregory Marketing, found that although the manufacturer's actions appeared to be anticompetitive, the plaintiff's “injury did not result from the anticompetitive nature of these practices.” Id. at 95. The court did find that certain factors supported allowing the plaintiff to maintain the suit, such as a causal connection between the alleged antitrust violation and the harm to the broker. Id. But the court concluded that such causation or improper motive was not sufficient to withstand a motion to dismiss. Id. *5 Instead, the court focused on the injury suffered by the plaintiff and asked whether it was of the kind intended to be forestalled by the antitrust statutes. Focusing on the violation alleged by the plaintiff, the court found that it grew out of the pricing agreement between the retailer and the manufacturer, not the plaintiff-broker. Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 4 of 20 A.D.M. Club Management Systems, Inc. v. Gary Jonas..., Not Reported in... 2006 WL 2689400, 2006-2 Trade Cases P 75,460 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Id. The court also found that the plaintiff was “neither a consumer nor a competitor in the apple juice market.” Id. As such, the plaintiff was not “ ‘within that area of the economy ... endangered by [the] breakdown of competitive conditions.” ’ Id. (quoting Blue Shield of Va. v. McCready, 457 U.S. 465, 481 (1982)). Analogously, the Plaintiffs in the instant litigation are similarly situated to the plaintiff-broker in Gregory Marketing in that Plaintiffs here were simply the intermediary through which Jonas distributed its product. The only facts Plaintiffs allege that are relevant to antitrust standing are that they purchased Jonas's software, thereby making them consumers, and that Jonas tried to sell directly to the private clubs, thereby making the Plaintiffs competitors of Jonas. Even at the motion to dismiss stage of litigation, this is insufficient. As the Gregory Marketing Court noted, the plaintiff- broker's injury was wholly inflicted by the manufacturer's termination of its contract. Id. at 96. Similarly, Plaintiffs here appear to have suffered an injury wholly dependent upon Jonas's alleged violation of their respective exclusive distributorship agreements. If Plaintiffs' allegations are accurate, and this Court must take them as such on this motion to dismiss, then Plaintiffs have standing with respect to breach of contract and the like, but those claims do not also give rise to standing to assert anticompetitive injury under the antitrust laws. See The Serpa Corp., 199 F.3d at 12 (affirming the district court's Rule 12(b)(6) dismissal based upon a finding that plaintiff- distributor's “injuries flow[ed] from the termination of its distributorship, and not from any anticompetitive effects of defendants” ' actions); see also Precision Surgical, Inc. v. Tyco Int'l, Ltd., 111 F. Supp 2d 586, 590 (E.D.Pa.2000) (granting motion to dismiss based on a finding that plaintiff-distributor's injuries resulted from defendant- manufacturer's termination of distribution contracts). In Schuylkill Energy, the Third Circuit addressed an antitrust suit in which the supplier of electric energy asserted an antitrust violation against the purchaser it supplied, which in turn sold electricity to end users. Schuylkill Energy Res., 113 F.3d at 415. The plaintiff- supplier in that action argued that it was the purchaser's competitor for antitrust standing purposes. Id. The Third Circuit ultimately concluded, affirming the district court's Rule 12(b)(6) dismissal, that “[a] supplier of a product does not become a competitor of the purchaser merely because the purchaser in turn sells the product to the ultimate user.” Id . By the same token, Jonas does not automatically become the competitor of Plaintiffs simply because it sells its software directly to the private clubs. Again, Plaintiffs may have a cause of action against Jonas for this direct selling, but that action does not lie in antitrust. *6 Moreover, based upon the fourth Barton & Pittinos factor, directness of injury, this Court finds that there are more direct victims of any alleged antitrust violation by Jonas. That is, the private club market is more directly affected by Jonas's acquisition of its competitors, allegedly yielding a two-thirds control of the market. In the alternative, Jonas's direct competitors, i.e., software providers to the other one-third of the market that Jonas does not control, are more directly affected by any market consolidation. In sum, the private clubs and the other software manufacturers are far more directly affected by any alleged antitrust violation by Jonas than the Plaintiffs- distributors in this action. Because the Plaintiffs have not suffered an antitrust injury, as defined in this Circuit and others, and because there are more direct victims of any alleged antitrust violation by Jonas, Plaintiffs lack antitrust standing. As a result, this Court finds that Count 1 of Plaintiffs' Amended Complaint should be dismissed with prejudice. B. Forum Selection Clause Regarding the counts in Plaintiffs' Amended Complaint pertaining to the respective contracts each Plaintiff had with Jonas, Jonas moves to dismiss such counts under Rule 12(b)(3) for improper venue. Specifically, Jonas asserts that the forum selection clause in the contracts clearly states that Canada is the proper and exclusive venue in which such claims should be brought. “In federal court, the effect to be given a contractual forum selection clause in diversity cases is determined by federal not state law.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir.1995). “Although the parties' agreement as to the most proper forum should not receive dispositive weight ... it is entitled to substantial consideration.” Id. at 880. “Thus, while courts normally defer to a plaintiff's choice of forum, such deference is inappropriate where the plaintiff has already freely contractually chosen an appropriate venue.” Id. So long as the forum selection clause is not the result of fraud or some imbalance of bargaining power, “the plaintiffs bear the Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 5 of 20 A.D.M. Club Management Systems, Inc. v. Gary Jonas..., Not Reported in... 2006 WL 2689400, 2006-2 Trade Cases P 75,460 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 burden of demonstrating why they should not be bound by their contractual choice of forum.” Id. If a federal district court determines that a forum selection clause should be enforced, then, pursuant to 28 U.S.C. § 1404(a), “a district court may transfer any civil action to any other district ... where it might have been brought.” 28 U.S.C. § 1404(a). “Transfer is not available, however, when a forum selection clause specifies a non-federal forum.” Salovaara v. Jackson Nat'l Life Ins. Co., 246 F.3d 289, 298 (3d Cir.2001). If the forum selection clause specifies a non- federal forum, then the court should dismiss, pursuant to 28 U.S.C. § 1406(a), because transfer is impossible. See Salovaara, 246 F.3d at 298; see also 28 U.S.C. § 1406(a). In the instant matter, Jonas moves to dismiss the remaining claims as to ADM, Clubsoft, and Mid-Atlantic, based upon a forum selection clause. Jonas admits in its brief that it has been unable to locate a written contract between Jonas and the fourth plaintiff, Club Solutions. Similarly, there is a dispute between the parties as to whether the contract put forth by Jonas as being signed by Plaintiff Mid-Atlantic actually is a contract between the Plaintiff in this case by that name. That is, Plaintiff Mid- Atlantic asserts that the company named in the contract put forth by Jonas has a similar name, but is not the same Mid-Atlantic to this dispute. Therefore, the Court's forum selection clause analysis only applies to the claims asserted by ADM and Clubsoft. *7 While submitted by Jonas as exhibits to its motion to dismiss, Plaintiffs do not deny the validity of the contracts as to ADM and Clubsoft. The forum selection clause in the ADM and Clubsoft contracts reads: This Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and of Canada an[d] any actions relating to the enforcement or interpretation of this Agreement shall be brought in the Courts of the Province of Ontario. The parties hereto attorn to the jurisdiction of the Court of the Province of Ontario. (Assuncao Certif. Exs. A & C ¶ 12(b).) Plaintiffs' only response to Jonas's motion to dismiss based upon this forum selection clause is to assert that “[a]lthough ADM and Clubsoft each purportedly executed a form contract with Gary Jonas that contain forum selection clauses, Mid-Atlantic and Club Solutions did not.” (Pls.' Br. at 28.) Plaintiffs then declare in a footnote that “[n]otably, Defendants cite no cases for the proposition that a forum selection clause must be enforced when the claims it allegedly encompasses are properly before the court under its supplemental jurisdiction.” (Id.) Unfortunately for Plaintiffs, it is also notable that they have failed to cite any cases that would support their position, which is, presumably, that the forum selection clauses, while valid as to ADM and Clubsoft, should not be enforced. Plaintiffs' reasoning on this point escapes this Court because Plaintiffs have failed to make any argument as to why the forum selection clauses should not be enforced. The only argument Plaintiffs marshal depends on the assumption that this Court will not dismiss their antitrust claim. That is, Plaintiffs appear to be arguing that because the antitrust claim is supposedly validly before this Court, then the other contractual claims based upon the same facts and circumstances are also properly before this court, despite the forum selection clause. Plaintiffs do not, however, argue in the alternative with respect to what this Court should do if it dismisses the antitrust claim, which this Court must do here. As a result, the Court is left speculating as to why ADM and Clubsoft should not be bound by their valid forum selection clauses. As the Jumara Court held, the Plaintiff bears the burden to demonstrate to the court why a forum selection clause should not be enforced. Jumara, 55 F.3d at 880. Plaintiffs here have not met that burden. On the contrary, it appears that the federal antitrust claim was intended to be the shoehorn that got this entire case heard in this country, so as to avoid the forum selection clause. Similarly, Jumara also recognizes a general deference to a plaintiff's choice of forum, but the Third Circuit tempered that deference where it is clear that a plaintiff has already made his choice of forum contractually. Id. This Court finds that the forum selection clauses are enforceable despite according the apparently valid forum selection clauses substantial consideration. As to ADM and Clubsoft, Counts 3, 6, 7, 8, and 11 should be dismissed, without prejudice, pursuant to 28 U.S.C. § 1406(a). C. Improper Venue *8 The Court now considers the remaining claims of Club Solutions and Mid-Atlantic. In their Amended Complaint, Plaintiffs allege that venue is proper in this District pursuant to 28 U.S.C. §§ 1391(a), (b) and (d). Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 6 of 20 A.D.M. Club Management Systems, Inc. v. Gary Jonas..., Not Reported in... 2006 WL 2689400, 2006-2 Trade Cases P 75,460 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Section 1391(a) 1 declares that a civil action founded only on diversity of citizenship may only be brought in a district (1) where any defendant resides or (2) in which a substantial part of the events giving rise to the claim occurred. There is no allegation that Defendants Jonas or CSI reside in New Jersey, as they are incorporated in Canada and Delaware, with a principal place of business in Pennsylvania and Canada, respectively. Moreover, because this Court must dismiss claims by the only New Jersey litigant, ADM, there is nothing in the Amended Complaint or Plaintiffs' brief to demonstrate that any part of the events giving rise to the remaining claims occurred in the District of New Jersey. 1 Section 1391(b) is similar to § 1391(a), but applies to cases founded not solely on diversity. Because this Court dismissed the federal question cause of action, this Court's subject matter jurisdiction over the remaining claims is founded solely on diversity of citizenship. As such, the following analysis addresses only § 1391(a) venue. While Plaintiffs' Amended Complaint generally asserts that venue is proper here “because a substantial portion of the events giving rise to this Complaint occurred in this judicial district,” (Am.Compl.¶ 7), nowhere else in the thirty-two page Amended Complaint is New Jersey even mentioned, but for reference to ADM's place of incorporation, which is, of course, irrelevant to the current analysis. The only inference the Court could reasonably draw as to venue being properly laid in this judicial district is that one of the parties, ADM, is a New Jersey corporation. But because ADM's claims have been dismissed due to the forum selection clause, the remaining claims involve a South Carolina and North Carolina company suing companies that are only connected to Delaware, Pennsylvania and Canada. If this were not enough reason to dismiss for improper venue, two of the claims by the remaining plaintiffs involve interpretation of North Carolina and Illinois statutory law. Finally, Plaintiffs, in their Amended Complaint, allege that venue is proper pursuant to § 1391(d), which simply states that “[a]n alien may be sued in any district.” 28 U.S.C. § 1391(d). It is not clear to the Court which, if either, of the Defendants is an alien. That is, both named Defendants are either incorporated in the United States or have their principal place of business in the United States. Either way, even assuming that at least one of the Defendants is an alien, “[w]hen an alien and a non-alien are joined as defendants, venue for the entire action is proper in any district where it is correct as to the non- alien defendant.” Japan Gas Lighter Ass'n v. Ronson Corp., 257 F.Supp. 219, 225 (D.N.J.1966). As such, venue might be proper in the Eastern District of Pennsylvania, the District of Delaware, the District of South Carolina, a district in North Carolina, or possibly Ontario, Canada, but it clearly is not proper in the District of New Jersey. Therefore, this Court finds that the remaining Counts (2, 4, 5, 9, 10, 12, and 13) should likewise be dismissed, without prejudice, for improper venue, pursuant to 28 U.S.C. § 1406(a). Conclusion *9 For the foregoing reasons, Defendants' motion to dismiss is hereby GRANTED. Count 1 is dismissed WITH prejudice as to all Plaintiffs and Counts 2-13 are dismissed WITHOUT prejudice as to all Plaintiffs. The Clerk shall mark this case CLOSED. All Citations Not Reported in F.Supp.2d, 2006 WL 2689400, 2006-2 Trade Cases P 75,460 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 7 of 20 Meijer, Inc. v. 3M, Not Reported in F.Supp.2d (2005) 2005 WL 1660188, 2005-2 Trade Cases P 74,882 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Z Technologies Corp. v. Lubrizol Corp., 6th Cir. (Mich.), May 23, 2014 2005 WL 1660188 United States District Court, E.D. Pennsylvania. MEIJER, INC., et al. On Behalf of Itself and Others Similarly Situated v. 3M (Minnesota Mining and Manufacturing Company) No. Civ.A. 04-5871. | July 13, 2005. Attorneys and Law Firms Brent W. Landau, Daniel A. Small, Cohen, Milstein, Hausfeld And Toll, Washington, DC, Ira Neil Richards, Trujillo Rodriquez & Richards, Philadelphia, PA, for Plaintiffs. John G. Harkins, Jr., Harkins Cunningham, Philadelphia, PA, for Defendant. MEMORANDUM PADOVA, J. *1 Plaintiffs, Meijer, Inc. and Meijer Distribution, Inc. (collectively “Meijer”), have brought this antitrust action against Defendant 3M for damages arising out of 3M's anticompetitive conduct during the time period from October 2, 1998, through the present. Presently before the Court is 3M's Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, this Motion is denied. I. BACKGROUND The conduct of 3M which forms the basis of this class action lawsuit was the subject of a prior lawsuit in this Court, LePage's, Inc. v. 3M, Civ. A. No. 97-3983 (E.D.Pa.). In that suit, LePage's, Inc., a competing supplier of transparent tape, sued 3M alleging, inter alia, unlawful maintenance of monopoly power in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. After a nine-week trial, the jury found in favor of LePage's on its unlawful maintenance of monopoly power claim. The jury awarded damages in the amount of $22,828,899.00, which were subsequently trebled to $68,486,697.00. See Le Page's, Inc. v. 3M, Civ. A. No. 97-3983, 2000 WL 280350 (E.D.Pa. Mar.14, 2000). 3M filed a Motion for Judgment as a Matter of Law, which this Court denied on March 14, 2000. See id. 3M thereafter appealed this Court's denial of its Motion for Judgment as a Matter of Law to the United States Court of Appeals for the Third Circuit (“Third Circuit”). A Third Circuit panel initially reversed this Court's Order upholding the jury's verdict and directed the Court to enter judgment for 3M on LePage's' unlawful maintenance of monopoly power claim. LePage's, Inc. v. 3M, 277 F.3d 365 (3d Cir.2002) (“LePage's I” ). Upon rehearing en banc, the Third Circuit vacated the panel decision and reinstated the original jury verdict against 3M. LePage's, Inc. v. 3M, 324 F.3d 141 (3d Cir.2003) (“LePage's II” ), cert. denied --- U.S. ----, 124 S.Ct. 2932, 159 L.Ed.2d 835 (2004). Thereafter, Bradburn Parent/Teacher Store, Inc. brought a class action lawsuit against 3M on the basis of the conduct litigated in LePage's. Bradburn Parent/Teacher Store, Inc. v. 3M, Civ. A. No. 02-7676 (E.D.Pa.). Bradburn, who originally had sought to represent a class which included Meijer, was ultimately granted class certification on a modified class that excluded purchasers of private label tape, such as Meijer. Bradburn Parent/ Teacher Store, Inc. v. 3M, Civ. A. No. 02-7676, 2004 WL 1842987 (E.D.Pa. Aug.18, 2004). Having been excluded from the class in Bradburn, Meijer first attempted to intervene in that lawsuit as an additional class representative. In denying Meijer's motion to intervene, the Court noted that “there is nothing which would prevent Meijer from filing its own individual or class action lawsuit against [3M] and presenting its claims in that forum.” Bradburn Parent/Teacher Store, Inc. v. 3M, Civ. A. No. 02-7676, 2004 WL 2900810, at *6 (E.D.Pa. Dec.10, 2004). On December 16, 2004, Meijer filed the instant Complaint. *2 Meijer brings this action on behalf of itself and other members of a proposed class, which includes “[a]ll persons and entities who purchased invisible or transparent tape directly from 3M ... at any time during the period from October 2, 1998 to the present....” (Compl.¶ 18.) The Complaint sets forth one count of monopolization in Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 8 of 20 Meijer, Inc. v. 3M, Not Reported in F.Supp.2d (2005) 2005 WL 1660188, 2005-2 Trade Cases P 74,882 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 violation of Section 2 of the Sherman Act. The Complaint alleges that 3M unlawfully maintained monopoly power in the transparent tape market through its bundled rebate programs 1 and through exclusive dealing arrangements with various retailers. (Id. ¶ 27.) The Complaint further alleges that “3M has used its unlawful monopoly power ... to harm Plaintiffs and the other Class members in their business or property by increasing, maintaining, or stabilizing the prices they paid for invisible and transparent tape above competitive levels.” (Id. ¶ 34.) The damages period in this case runs from October 2, 1998, to the present. (Id. ¶ 18.) In the instant Motion, 3M moves to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 As described at length in the LePage's litigation, 3M's bundled rebate programs provided purchasers with significant discounts on 3M's products. However, the availability and size of the rebates were dependant upon purchasers buying products from 3M from multiple product lines. See LePage's II, 324 F.3d at 154-55. II. LEGAL STANDARD When determining a motion to dismiss pursuant to Rule 12(b)(6), the court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). The court must accept as true all well pleaded allegations in the complaint and view them in the light most favorable to the Plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.1985). A Rule 12(b)(6) motion will be granted when a Plaintiff cannot prove any set of facts, consistent with the complaint, which would entitle him or her to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). Documents “integral to or explicitly relied upon in the complaint” and related matters of public record may be considered on a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997). III. DISCUSSION 3M argues that the Complaint should be dismissed pursuant to Rule 12(b)(6) because (1) Meijer's claim is barred by the applicable statute of limitations; and (2) the Complaint fails to state a valid claim of antitrust injury. A. Statute of Limitations 3M first argues that this case is time-barred under the applicable statute of limitations. The statute of limitations is an affirmative defense, and the burden of establishing its applicability to a particular claim rests with the defendant. Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir.1985). When considering a motion to dismiss pursuant to Rule 12(b)(6) on statute of limitations grounds, “ ‘[courts] must determine whether the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.” ’ Davis v. Grusemeyer, 996 F.2d 617, 623 (3d Cir.1993) (quoting Cito v. Bridgewater Twp. Police Dept., 892 F.2d 23, 25 (3d Cir.1989)). The defendant bears a heavy burden in seeking to establish that the challenged claims are barred as a matter of law. Davis, 996 F.2d at 623, n. 10 (citing Buskirk, 760 F.2d at 498). *3 The Clayton Act, 15 U.S.C. § 15b, which governs private antitrust actions, provides that “[a]ny action to enforce any cause of action under section 15, 15a, or 15c of this title shall be forever barred unless commenced within four years after the cause of action accrued.” 15 U.S.C. § 15b. “Generally, a cause of action accrues, and the statute 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, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Meijer, which seeks damages for the period from October 2, 1998 through the present based on conduct by 3M which began as early as 1993, does not dispute the applicability of the Clayton Act's four year statute of limitations. Meijer argues, however, that the instant action is timely under the continuing violation and speculative damages exceptions to the four-year accrual rule. 1. Continuing violation exception Meijer argues that the instant action is timely because 3M's conduct constitutes a continuing violation of the Sherman Act. “The Supreme Court has considered and rejected the argument that, in the context of a defendant's continuing violation of the Sherman Act, the statute of limitations runs from the violation's earliest impact on a plaintiff.” In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1171 (3d Cir.1993). The four year statute of limitations does not bar recovery for later private antitrust actions if the defendant's conduct “constituted a continuing violation of the Sherman Act and ... inflicted continuing and accumulating harm.” Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502, n. 15, 88 Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 9 of 20 Meijer, Inc. v. 3M, Not Reported in F.Supp.2d (2005) 2005 WL 1660188, 2005-2 Trade Cases P 74,882 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). In such situations, even if the overt act which demonstrates the antitrust violation occurs outside the statute of limitations period, an injurious act within the limitations period may serve as the basis for a timely antitrust suit. Lower Lake Erie Iron Ore, 998 F.2d at 1172. Here, Meijer argues that the continuous violation exception should be applied because the predatory and exclusionary practices 3M engaged in outside the limitations period have resulted in continuing and accumulating harm to Meijer within the limitations period by allowing 3M to continue to charge supracompetitive prices for its invisible and transparent tape. Generally, a subsequent act will only preserve an antitrust claim if that act is an “injurious act actually occurring during the limitations period, not merely the abatable but unabated inertial consequence[ ] of some pre-limitations action.” Al George, Inc. v. Envirotech Corp., 939 F.2d 1271, 1275 (5th Cir.1991) (quoting Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir.1987)) (emphasis deleted); see also Varner v. Peterson Farms, 371 F.3d 1011, 1019 (8th Cir.2004); Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 406 (6th Cir.1999); see generally Phillip E. Areeda et al., Antitrust Law, ¶ 320 at 208-211 (2d ed.2000). While a leading commentator has noted that “it should seem that high prices following ... the creation of a monopoly are mere inertial consequences one naturally expects to flow from such acts,” Areeda ¶ 320 at 210, it has long been held that “a purchaser suing a monopolist for overcharges paid within the previous four years may satisfy the conduct prerequisite to recovery by pointing to anticompetitive actions taken before the limitations period.” Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 296 (2d Cir.1979). This principle is based on the recognition that *4 although the business of a monopolist may be injured at the time the anticompetitive conduct occurs, a purchaser, by contrast, is not harmed until the monopolist actually exercises its illicit power to extract an excessive price. The case of predatory pricing illustrates the point clearly. As soon as the dominant firm commences such a policy, other producers, who may be driven out of the market, are injured. But, clearly, purchasers are not, for they receive the temporary boon of artificially low prices. It is only when the monopolist, having devoured its smaller rivals, enjoys the spoils of its conquest by boosting its price to excessive levels that a purchaser feels the adverse impact of the violation. And if the monopolist never consummates its scheme by taking this final step, the purchaser has no cause of action. Id. at 295 (quoting Zenith, 401 U.S. at 339). The United States Court of Appeals for the Third Circuit (“Third Circuit”) has similarly differentiated between “on the one hand, an ‘overt act’ necessary to show the existence of a [continuing violation], and, on the other hand, an injurious act causing damages within the limitations period.” Lower Lake Erie Iron Ore, 998 F.2d at 1172. Accordingly, courts have held that, in purchaser antitrust actions, the requisite injurious act within the limitations period can include being overcharged as the result of an unlawful act which took place outside the limitations period but continues to allow the defendant to maintain market control. See In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 551 (D.N.J.2004) (purchasers' antitrust claims “are not barred by the statute of limitations to the extent that they bought and overpaid for [defendant's] products within the applicable time limitations”); see also In re Buspirone Patent Litig., 185 F.Supp.2d 365, 378 (S.D.N.Y.2002) (“[i]f a party commits an initial unlawful act that allows it to maintain market control and overcharge customers for a period longer than four years, purchasers maintain a right of action for any overcharges paid within the four years prior to their filings.”). Here, the Complaint alleges that “[a]s found in LePage's or otherwise, 3M's unlawful maintenance of its tape monopoly has suppressed competition and has maintained prices paid by direct purchasers to 3M above competitive levels, even after any 3M rebates attributable to tape purchases.” (Compl.¶ 32.) The Complaint further alleges that “[t]he issues regarding 3M's violation of Section 2 of the Sherman Act in LePage's v. 3M are identical to those in the case at bar,” (id. ¶ 37), and that “3M has used it unlawful monopoly power ... to harm Plaintiffs and other Class members in their business or property by increasing maintaining, or stabilizing Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 10 of 20 Meijer, Inc. v. 3M, Not Reported in F.Supp.2d (2005) 2005 WL 1660188, 2005-2 Trade Cases P 74,882 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 the prices they paid for invisible and transparent tape above competitive levels.” (Id. ¶ 34.) The Complaint, therefore, alleges a cause of action on the basis of an initial overt act of unlawful maintenance of monopoly power that occurred more than four years ago, but which continues to allow 3M to commit the injurious act of overcharging Meijer and other purchasers. See Lower Lake Erie Iron Ore, 998 F.2d at 1172; see also In re K- Dur, 338 F.Supp.2d at 551; In re Buspirone, 185 F.Supp.2d at 378. Accordingly, the Court concludes that Meijer's claims are not barred by the statute of limitations to the extent that Meijer seeks to recover for any overcharges paid within the four years prior to the filing of the instant Complaint, plus any additional time period during which the statute of limitations may be tolled. 2 2 Although the parties have made some arguments with respect to the possible tolling of the statute of limitations in this case, which would extend the damages time period in this case. The Court notes, however, that it need not decide what the applicable period for the calculation of damages may ultimately be in ruling on the instant Motion. In re K-Dur, 338 F.Supp.2d at 551. Moreover, Meijer has advised the Court that “there are additional arguments for further tolling,” which it did not develop in the submission currently before the Court. (04/04/2005 Tr. at 40.) Accordingly, the Court will defer ruling on the propriety of tolling the statute of limitations at this time. 2. Speculative damages exception *5 Meijer also argues that the statute of limitations does not bar the instant action because Meijer's damages were speculative prior to the filing of the instant lawsuit. The general rule of accrual in antitrust actions provides that “if a plaintiff feels the adverse impact of an antitrust [violation] on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future.” Zenith, 401 U.S. at 339. The mere fact that damages may continue to accrue “in the future, as opposed to at the time the acts are committed, does not prevent the cause of action from accruing.” Astoria Entm't, Inc. v. Edwards, 159 F.Supp.2d 303, 316 (E.D.La.2001) (quoting 8 Julian O. van Kalinowski et al., Antitrust Laws and Trade Regulation § 162.02[1] at 162-5). However, it is hornbook law, in antitrust actions as in others, that even if injury and a cause of action have accrued as of a certain date, future damages that might arise from the conduct sued on are unrecoverable if the fact of their accrual is speculative or their amount and nature unprovable. Zenith, 401 U.S. at 339. In these instances, antitrust causes of action for future damages “will accrue only on the date [the damages] are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted.” Id. In purchaser antitrust actions, damages from future overcharges necessarily fall into the speculative damages exception to the four year statute of limitations. See Berkey Photo, 603 F.2d at 195-96. The United States Court of Appeals for the Second Circuit has explained that [p]lainly, at the time a monopolist commits anticompetitive conduct it is entirely speculative how much damage that action will cause its purchasers in the future. Indeed, some of the buyers who will later feel the brunt of the violation may not even be in existence at the time. Not until the monopolist actually sets an inflated price and its customers determine the amount of their purchases can a reasonable estimate be made. The purchaser's cause of action, therefore, accrues only on the date damages are ‘suffered.' Berkey Photo, 603 F.2d at 295-96 (internal quotations omitted). To hold otherwise would require a purchaser to predict and prove, within four years of the time it was first injured by antitcompetitive conduct, the amount of future overcharges, the quantity of future product purchases, the level of future competition in the relevant market, and the availability of substitutes and new suppliers over time. Resolution of these issues depends on overall changes in consumer demand for tape, developments in the purchaser's overall business, variations in the cost of producing the product over time, and the future prices which the supplier ultimately decides to charge. Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 11 of 20 Meijer, Inc. v. 3M, Not Reported in F.Supp.2d (2005) 2005 WL 1660188, 2005-2 Trade Cases P 74,882 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 These considerations are too speculative and remote to properly predict a purchaser's future damages. The Court, therefore, finds that Meijer's antitrust claim against 3M could not accrue until it actually payed the overcharge. See Berkey Photo, 603 F.2d at 295. *6 3M argues that the Court should nonetheless find that Meijer's claims are barred by the statute of limitations, because [r]epose is especially valuable in antitrust, where tests of legality are often rather vague, where many business practices can be simultaneously efficient and beneficial to consumers but also challengeable as antitrust violations, where liability doctrines change and expand, where damages are punitively trebled, and where duplicate treble damages for the same offense may be threatened. Areeda, ¶ 320a at 205. The Court notes, however, that “there can be no unfairness in preventing a monopolist that has established its dominant position by unlawful conduct from exercising that power in later years to extract an excessive price,” because “[t]he taint of an impure origin does not dissipate after four years....” Berkey Photo, 603 F.2d at 296. The Court, therefore, concludes that because Meijer's future damages were speculative in 1993, when Meijer was first injured, a new cause of action accrued to Meijer each time it payed an overcharge. See Berkey Photo, 603 F.2d at 295. Accordingly, this action is not barred by the statute of limitations to the extent that Meijer seeks to recover for overcharges during the four years prior to the filing of the instant Complaint, plus any additional time period during which the statute of limitations may be tolled. B. Failure to State a Valid Claim of Antitrust Injury 3M also argues that the Complaint should be dismissed pursuant to Rule 12(b)(6) because it fails to state a valid claim of antitrust injury. To state a claim for monopolization [in violation of Section 2], a plaintiff must allege “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historical accident.” Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 412-13 (3d Cir.1997) (quoting Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 197 (3d Cir.1992)). The right to maintain a private cause of action for damages arising under Section 2 flows from Section 4 of the Clayton Act, 15 U.S.C. § 15(a), which provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws” may initiate litigation. 15 U.S.C. § 15(a). Accordingly, plaintiffs bringing a private cause of action under Section 2 must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). The Court notes that “the existence of antitrust injury is not typically resolved through motions to dismiss.” Schuykill Energy, 113 F.3d at 417 (citing Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 876 (3d Cir.1995)). Moreover, “[t]here are no special pleading requirements for an antitrust claim. Rather, ‘[n]otice pleading is all that is required for a valid antitrust complaint.” Bradburn Parent/Teacher Store, Inc. v. 3M, Civ. A. No. 02-7676, 2000 WL 34003597, at *2 (E.D.Pa. July 25, 2003) (quoting Mun. Utils. Bd. of Albertville v. Ala. Power Co., 934 F.2d 1493, 1501 (11th Cir.1991)). Courts, therefore, “must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them.” Schuykill Energy, 113 F.3d at 417. Courts “are not, however, required to accept as true unsupported conclusions and unwarranted inferences.” Id. *7 Here, 3M argues that the Complaint fails to state a valid claim for antitrust injury because, although Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 12 of 20 Meijer, Inc. v. 3M, Not Reported in F.Supp.2d (2005) 2005 WL 1660188, 2005-2 Trade Cases P 74,882 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 the Complaint alleges that 3M unlawfully maintained monopoly power through its bundled rebate programs and exclusive dealing arrangements with retailers, “it does not necessarily follow ... that Meijer or the class it seeks to represent suffered any injury at all because such retailers benefitted directly and significantly from those rebates.” (Def. at 18.) The Complaint alleges as follows: As found in LePage's or otherwise, 3M's unlawful maintenance of its tape monopoly has suppressed competition and has maintained tape prices paid by direct purchasers to 3M above competitive levels, even after any 3M rebates attributable to tape purchases. ... 3M has used its unlawful monopoly power described herein to harm [Meijer] and other Class members in their business or property by increasing, maintaining, or stabilizing the prices they paid for invisible and transparent tape above competitive levels. (Compl.¶¶ 32, 34.) (emphasis added). Moreover, the Complaint alleges that 3M “intended to use, did use, and continues to use” its “anitcompetitive and monopolistic practices in the conduct of trade or commerce.” (Compl.¶ 1.) The Court has previously held that these allegations, “if proven, could establish that, were it not for [3M's] anti- competitive conduct, [Meijer] would have paid less for transparent tape than it actually paid during the damages period, even when any bundled rebates or other discounts are taken into account.” Bradburn, 2000 WL 34003597, at *4. The Court, therefore, concludes that Meijer has properly alleged injury of the type the antitrust laws were designed to prevent. 3 Accordingly, 3M's Motion is denied in this respect. 3 The Court notes that it is “not in a position to predict whether [Meijer] will ultimately be able to sustain [its] burden of proof on this issue since [Meijer] has not yet had an opportunity to obtain evidence.” Brader, 64 F.3d at 876. Accordingly, the sufficiency of Meijer's contentions regarding the effect of 3M's conduct on prices will be resolved “after discovery, either on summary judgment or after trial.” Id. ORDER AND NOW, this 13th day of July, 2005, upon consideration of Defendant 3M's Motion to Dismiss (Doc. No. 9), all documents submitted in response thereto, and the Argument held on April 25, 2005, IT IS HEREBY ORDERED that said Motion is DENIED. All Citations Not Reported in F.Supp.2d, 2005 WL 1660188, 2005-2 Trade Cases P 74,882 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 13 of 20 Vitale v. Marlborough Gallery, Not Reported in F.Supp. (1994) 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Carell v. Shubert Organization, Inc., S.D.N.Y., June 27, 2000 1994 WL 654494 United States District Court, S.D. New York. Joan VITALE, Plaintiff, v. MARLBOROUGH GALLERY, The Pollock- Krasner Foundation, The Pollock-Krasner Authentication Board, Inc., Donald McKinney, Francis Valentine O'Connor, Eugene Victor Shaw, E.V. Thaw & Co., Jason McCoy, Jason McCoy, Inc. and Francis K. Lloyd, Defendants. No. 93 Civ. (PKL) 6276. | July 5, 1994. Attorneys and Law Firms Carl E. Person, New York City, for plaintiff. Joseph H. Lessem, Cowan, Liebowitz & Latman, P.C., New York City, for Pollock-Krasner, defendants. OPINION AND ORDER LEISURE, District Judge. *1 This action arises out of plaintiff's inability to sell a painting as a Jackson Pollock original because of defendants' alleged monopolization of the market for Pollock paintings, in violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2. Plaintiff also alleges a violation of the Lanham Act, 15 U.S.C. § 1125(a), based on defendants' publication of a catalogue describing the painting as a forgery. Finally, in her amended complaint, plaintiff asserts state law claims for product disparagement, unauthorized publication, unjust enrichment, breach of constructive trust, violation of § 349 of the New York General Business Law, and interference with advantageous business relationships. As an initial matter, this Court notes that in assessing the adequacy of plaintiff's allegations, the Court relies on plaintiff's amended complaint filed during the pendency of defendants' motion. According to Fed.R.Civ.P. 15(a), the plaintiff may amend his complaint “once as a matter of course before a responsive pleading is served.” Otherwise, a plaintiff may do so only “by leave of court or by written consent of the adverse party.” Fed.R.Civ.P. 15(a). While plaintiff has not made a motion seeking leave to amend, defendants, in their reply memorandum, endeavor to have this Court dismiss plaintiff's amended complaint. Accordingly, this Court treats defendants' reply as fulfilling the written consent requirement to plaintiff's filing of the amended complaint. 1 Defendants Pollock-Krasner Foundation, The Pollock- Krasner Authentication Board, Inc., Donald McKinney, Francis Valentine O'Connor, Eugene Victor Thaw, E.V. Thaw & Co., Jason McCoy and Jason McCoy, Inc., have moved this Court for an order dismissing this action pursuant to Fed.R.Civ.P. 12(b)(6) and 8(a) for failure to state a claim upon which relief can be granted. For the reasons stated below, the motion is hereby granted. 2 BACKGROUND In 1969, plaintiff Joan Vitale, an art and antiques dealer, bought a painting, purportedly signed by Jackson Pollock, at an antique auction in Pennsylvania. Complaint at 2, 15. The following day, plaintiff inquired about the potential value of the painting at the Parke Bernet Gallery in New York. Plaintiff was allegedly informed that as a Pollock original, the painting could sell at auction for anywhere between $125,000 and $165,000, but that she would not be able to auction the painting without first obtaining the approval of Lee Krasner, Pollock's widow. Id. at 15. Plaintiff contacted Krasner through defendant Marlborough Gallery to arrange a time at which plaintiff could show the painting to Krasner. Plaintiff brought the painting to the Marlborough Gallery in order to meet Krasner and obtain approval. Here she was told to leave the painting overnight with the gallery and to return the following day. Upon arriving at the Marlborough Gallery the following day, plaintiff was met by a group of people, among whom were three men who allegedly introduced themselves as Assistant District Attorneys from the Manhattan District Attorney's Office. Id. at 17-18. After questioning plaintiff about her acquisition of the painting, the men allegedly informed her that they would need to hold the painting as evidence in an ongoing art forgery case but that they would return the painting at the close of the case. Id. at 19. The men also Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 14 of 20 Vitale v. Marlborough Gallery, Not Reported in F.Supp. (1994) 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 asked several questions concerning two other paintings marked F/K which plaintiff had seen while purchasing the Pollock painting. During the years from 1969 to 1974, the painting remained in defendants' possession. Plaintiff made repeated inquiries, but the painting was not returned. Id. at 20. *2 Plaintiff did not retrieve her painting from defendants until 1974, five and a half years later. Id. at 21. In 1978, a picture of the painting appeared in the Jackson Pollock Catalogue Raisonne (“Catalogue”). Plaintiff's painting was among the paintings categorized as false attributions or forgeries. Id. at 22. Plaintiff contends that the Catalogue, published by the Yale University Press, serves a gatekeeping function for the market for modern and contemporary paintings, as it provides the only definitive list of Pollock's works for auction houses and galleries throughout America. Plaintiff also alleges that the false information in the Catalogue concerning her painting was supplied exclusively by the defendants, and that defendants were, in essence, black listing the painting by describing it as a forgery. Id. Despite the blacklisting of the painting, plaintiff sought to sell it in New York. Upon contacting Parke Bernet, Christie's Gallery and ten other galleries in New York in or about the fall of 1974, plaintiff was told by each that they could not sell the painting without a letter of authentication from the Marlborough Gallery, the Krasner Foundation or the Krasner Committee. Id. at 23. Co-conspirators Parke Bernet and Christie's allegedly refused to accept the painting for sale at auction without the Krasner Foundation's or the Marlborough Gallery's approval, despite the fact that other qualified experts were willing to authenticate the painting. Id. at 21. Plaintiff alleges that the whimsical practices of authenticating paintings have been perpetuated by the Committee to this day, despite the death of Pollock's widow Lee Krasner in 1984. Id. at 2, 25. Based on her continued inability to sell the painting at auction, or privately through galleries, dealers, investors, collectors or museums, plaintiff brought the instant antitrust action in September of 1993, alleging damages in excess of $15,000, 000. Plaintiff claims that no Pollock painting other than those recognized as authentic by the Committee can be sold. Plaintiff alleges that the defendants' 3 control of the process of authentication and sale of Pollock paintings constitutes an unlawful restraint of trade in violation of § 1 and § 2 of the Sherman Antitrust Act. DISCUSSION I. STANDARD FOR A MOTION TO DISMISS Defendants have moved for an order dismissing plaintiff's claim pursuant to Fed.R.Civ.P. 12(b)(6) and 8(a). In deciding defendants' motion, this Court must apply “the familiar standard for review of a Rule 12(b)(6) motion, which requires a court to construe any well-pleaded factual allegations in the complaint in favor of the plaintiff and dismiss the complaint only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir.1994) (quoting Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, (1957))). *3 “The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir.1990). Thus, a motion to dismiss must be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). “When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiff's amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561 (1992)). Defendants raise a number of defenses to plaintiff's claims, inter alia: (1) plaintiff's failure properly to allege a relevant product market; (2) plaintiff's failure to allege antitrust standing or injury; (3) plaintiff's failure to allege overt acts causing injury within the four years prior to suit, thus rendering plaintiff's claims time barred; and, (4) plaintiff's Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 15 of 20 Vitale v. Marlborough Gallery, Not Reported in F.Supp. (1994) 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 failure to assert her claim within the statutory period under 15 U.S.C. § 1125(a). II. THE RELEVANT PRODUCT MARKET Defendants contend that plaintiff has failed properly to allege a relevant product market. As a threshold matter this Court addresses plaintiff's assertion of a relevant market. Generally, under § 1 and § 2 of the Sherman Antitrust Act, a plaintiff must allege a contract, combination, or conspiracy constituting an unlawful restraint of trade. See 15 U.S.C. § 1; Acquaire v. Canada Dry Bottling Co., slip op., No. 93-7368, at 4026 (2d Cir. May 13, 1994). A prerequisite to any antitrust claim, however, is the specification of which “trade or commerce,” or which relevant product market, is allegedly restrained. See Theatre Party Assocs., Inc. v. Shubert Org., Inc., 695 F.Supp. 150, 153 (S.D.N.Y.1988) (Section 2); Frito-Lay, Inc. v. Bachman Co., 659 F.Supp. 1129, 1136 (S.D.N.Y.1986) (Section 1). In determining the relevant market, the general rule is that “commodities reasonably interchangeable by consumers for the same purposes make up that ‘part of the trade or commerce,’ monopolization of which may be illegal.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956); see Frito-Lay, Inc., 659 F.Supp. at 1136. A market within a market, also termed a submarket, may also be the subject of a monopoly provided that its confines are well defined through the rule of reasonable interchangeability. See Frito Lay, Inc., 659 F.Supp. at 1137 (finding salted snack foods may constitute a submarket of snack foods actionable under 15 U.S.C. § 1, provided that salted snack foods are not reasonably interchangeable with nonsalted snack foods). Furthermore, a single product may qualify as a submarket where the product is unique and there is no practical substitute. See id. The existence of a single product submarket is determined by reference to the following criteria: (1) public recognition of the submarket as a separate economic entity; (2) the products peculiar characteristics and uses; (3) the products distinct customers; (4) the products distinct prices and sensitivity to price changes and specialized factors. 4 See Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962); Frito-Lay, Inc., 659 F.Supp. at 1137. *4 Plaintiff alleges that the relevant market is contemporary and modern paintings and that Jackson Pollock paintings constitute a distinct and independent submarket. Examining plaintiff's assertion of a submarket in light of the above criteria, the Court finds, for the purposes of this motion to dismiss, that Jackson Pollock paintings may constitute a submarket, the monopolization of which may be unlawful under 15 U.S.C. § 1 or § 2. According to plaintiff's allegations, both exhibitions and sales of Pollock paintings are advertised as Pollock sales and not under the general rubric of modern art sales, thus signalling public recognition of a distinct submarket for Pollock paintings. Also, as any major art purchase may be motivated by highly subjective tastes, one cannot assume that a Rothko or a Franz Kline is interchangeable with a Pollock, as a salted peanut may be interchangeable with a salted corn chip. See also Frito- Lay, Inc., 659 F.Supp. at 1138. In the esoteric world of art collecting, a Rothko painting would by no means satisfy the same artistic taste as would a Pollock painting. See, e.g., “A Tour That Moves from Calligraphy to Pollock,” New York Times, June 24, 1994, at 28 (describing Pollock as a highly distinctive artist who works “on his own plane”). Accordingly, this Court finds, for the purposes of the instant motion, that plaintiff has adequately alleged a submarket, sufficient to state a claim under 15 U.S.C. § 1 or § 2. III. PLAINTIFF'S § 1 and § 2 ANTITRUST CLAIMS Defendants also raise the statute of limitations as an affirmative defense to plaintiff's antitrust claims. The statute of limitations for federal antitrust actions is four (4) years. See 15 U.S.C. § 15b (1982). Defendants move to dismiss the § 1 and § 2 claims contending that the plaintiff has failed to allege overt acts resulting in injury to plaintiff within the four years preceding the initiation of this lawsuit. Generally, an antitrust “cause of action accrues and the statute 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); accord Higgins v. New York Stock Exchange, Inc., 942 F.2d 829, 832 (2d Cir.1991). 5 The alleged anticompetitive acts giving rise to plaintiff's injury and cause of action occurred either in 1974, when plaintiff first learned of her inability to sell the painting as a Pollock original, or, at the very latest, in 1978, when defendants allegedly caused plaintiff's painting to be blacklisted in the Catalogue. When the anticompetitive act causing the injury and giving rise to Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 16 of 20 Vitale v. Marlborough Gallery, Not Reported in F.Supp. (1994) 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 the cause of action occurs outside of the statutory period, the claim is time barred. See Wolf, 715 F.Supp. at 508. In her amended complaint, plaintiff alleges the following anticompetitive acts: (1) the Committee has “refused to authenticate various Pollock paintings”; (2) the Committee has failed to use reasonable means to determine whether a painting is authentic; (3) the co- conspirators and defendants “have been preparing” a revised edition of the Jackson Pollock Catalogue Raisonne, listing plaintiff's painting once again as a forgery; (4) defendants have failed to withdraw from the conspiracy and failed to allow Pollock paintings to be authenticated by those other than the Committee members. However, these assertions fail to cure the time barred nature of this action, because plaintiff fails to allege an injury resulting from these acts. As discussed above, an overt act resulting in injury to the plaintiff must occur within the statutory time frame. See Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030, 1039 (2d Cir.1992) (citing Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir.1979), cert. denied, 444 U.S. 1093 (1980)). Plaintiff fails to allege that any attempt was made to have the painting authenticated by the Committee at any time between 1989 and 1993, the four year period prior to initiation of this suit. Thus, both the injury giving rise to plaintiff's claim and the acts causing that injury are well outside the statutory period for an antitrust claim. See Wolf, 715 F.Supp. at 508. *5 There are, however, two exceptions to the statute of limitations defense in antitrust actions. These are the continuing conspiracy exception and the speculative damages exception. To come within the first of these, the continuing conspiracy exception, a plaintiff must allege that she has been injured by “continued, separate antitrust violations within the limitations period.” Hennegan v. Pacifico Creative Serv., Inc., 787 F.2d 1299, 1301 (9th Cir.), cert. denied, 479 U.S. 886 (1986); see also Kahn, 970 F.2d at 1039-40. Thus to restart the statute of limitations plaintiff must allege an overt act which (1) is a “new and independent act that is not merely a reaffirmation of a previous act”; and (2) “inflict[s] new and accumulating injury on the plaintiff.” Pace Industries, Inc. v. Three Phoenix Co., 813 F.2d 234 (9th Cir.1987). Defendants contend that plaintiff alleges only a continuation or reaffirmation of an allegedly wrongful act originally occurring in 1978, the reaffirmation of which allegedly occurred during the period 1989 to 1993, long after the statute of limitations had already run. To support her argument for a continuing conspiracy, plaintiff alleges the following “overt acts”: (1) the Committee has “continued to meet” to determine whether paintings in general should be authenticated; (2) defendants and co-conspirators have continued to require authentication by the Committee; (3) defendants and co-conspirators have continued to maintain an essential facility in New York for the auctioning of modern and contemporary paintings; and, (4) defendants “have taken no action to advise plaintiff” that she may sell her painting at auction in New York; (5) defendants and co- conspirators have continued to artificially manipulate the prices for modern and contemporary art. See Complaint at 31-33. Even construing plaintiff's allegations liberally, plaintiff fails to allege a continuing conspiracy. Plaintiff's allegation of a refusal to recognize and sell plaintiff's painting as an authentic Pollock amounts at best to no more than a refusal to deal with the plaintiff. If an initial refusal to deal with a party is final, the statute of limitations begins to run and does not restart when the plaintiff makes subsequent unsuccessful efforts to deal with the defendant. See Pace, 813 F.2d at 237-39 (finding a permanent and final decision “made outside the limitations period does not constitute a continuing violation even if the injury continues within the statute period”); Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714-15 (11th Cir.1984). Based on all the allegations herein, this Court finds that defendants' initial refusal to deal was final, and, accordingly, defendants continued failure to advise and continued requirement of authentication do not give rise to a new cause of action. 6 Furthermore, courts in this Circuit “consistently have looked unfavorably on continuing violation arguments.” Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1415 (S.D.N.Y.1989); accord La Beach v. Nestle Co., 658 F.Supp. 676, 687 (S.D.N.Y.1987). In fact, only “compelling circumstances” will warrant application of the exception to the statute of limitations. La Beach, 658 F.Supp. at 687. Even construing all factual allegations in the light most favorable to the plaintiff, as required by Fed.R.Civ.P. 12(b)(6), this Court finds that neither defendants' continued failure to advise nor their continued Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 17 of 20 Vitale v. Marlborough Gallery, Not Reported in F.Supp. (1994) 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 requirements of authentication constitute compelling circumstances. *6 The second exception to the statute of limitations bar is the speculative damages exception. According to this exception, if future damages are unascertainable, a cause of action for such damages does not accrue until they occur. See Zenith, 401 U.S. at 339; see Higgins v. New York Stock Exchange, Inc., 942 F.2d 829, 832 (2d Cir.1991) (refusing to find an exception to the date of injury rule for accrual of action, since it was not the rare case in which the damages caused by an antitrust injury are so speculative that the court is unwilling to estimate them) (emphasis added). Although plaintiff has raised a speculative damages argument in only very vague terms, this Court finds that her claim does not qualify for this exception. Generally, uncertain damages, which prevent recovery, are distinguishable from the uncertain extent of damage, which does not prevent recovery. See Pace Industries, Inc., 813 F.2d at 240 (quoting In re Multidistrict Vehicle Air Pollution, 591 F.2d 68, 73 (9th Cir.), cert. denied, 444 U.S. 900 (1979). Plaintiff's allegations with respect to her injury are based on her inability to sell the painting at auction. The extent of these damages, i.e., the value obtainable at auction, while uncertain, is not so speculative that it could not be estimated. Accordingly, plaintiff's damages are not speculative and plaintiff's claim does not qualify under the speculative damages exception. See, e.g., Higgins, 942 F.2d at 832; Pace, 813 F.2d at 240. Since neither the speculative damages exception nor the continuing conspiracy exception to the statute of limitations applies, plaintiff's first and second causes of action are dismissed as time barred. IV. PLAINTIFF'S CLAIM FOR VIOLATION OF THE LANHAM ACT Plaintiff also asserts a federal claim based on the publication of plaintiff's painting in the Jackson Pollock Catalogue Raisonne, published by the Yale University Press in 1978. Plaintiff alleges that the listing of her painting in the Catalogue as a forgery constitutes a violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The Lanham Act does not provide its own statute of limitations. Therefore, this Court must borrow the appropriate analogous state statute of limitations. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462-65 (1975). Defendants argue that the appropriate state law equivalent cause of action is injury to property. The Court finds, however, that the more analogous cause of action is one based in fraud and, accordingly, the appropriate statute of limitations is six years. See PepsiCo, Inc. v. Dunlop Tire & Rubber Corp., 578 F.Supp. 196, 223 (S.D.N.Y.1984). Generally speaking, the Lanham Act “has been employed successfully to combat a wide variety of deceptive commercial practices.” PPX Enterprises Inc. v. Audiofidelity Enterprises, Inc., 818 F.2d 266, 270. It provides a statutory remedy for trademark infringement and unfair competition to a party injured by a competitor's false designation of origin of its product, and also provides a remedy for false or misleading advertisements of fact. See Romm Art Creations Ltd. v. Simcha Int'l Inc., 786 F.Supp. 1126, 1132-34 (E.D.N.Y.1992). *7 To state a cause of action under 15 U.S.C. § 1125(a), a plaintiff must set forth well pleaded factual allegations sufficient to demonstrate, inter alia, a false designation of origin or false description or advertisement of fact. See Consumers Union of U.S., Inc. v. New Regina Corp., 664 F.Supp. 753, 764 n. 12 (S.D.N.Y.1987); see also Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. Smithkline Beecham Corp., 960 F.2d 294, 297 (2d Cir.1992). Even conferring plaintiff the benefit of a six year statute of limitations, the allegation that the 1978 publication of the Catalogue supports a cause of action is clearly time barred. Plaintiff attempts to circumvent the statute of limitations by premising her claim not only on the original publication of the Catalogue in 1978, but also on the contention that defendants' and co-conspirators' are preparing a revised edition of the Catalogue. This contention cannot salvage her claim, in that, the alleged preparation of the revised edition does not support a claim under the Lanham Act. The essence of a Lanham Act claim for false advertising is deception of the consumer public. See Getty Petroleum Corp. v. Island Transportation Corp., 878 F.2d 650, 655 (2d Cir.1989) (“A Lanham Act plaintiff seeking damages is normally expected to prove actual consumer confusion or deception resulting from the violation”); Coors Brewing Co. v. Anheuser-Busch Companies, Inc., 802 F.Supp. 965 (S.D.N.Y.1992); see also American Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 18 of 20 Vitale v. Marlborough Gallery, Not Reported in F.Supp. (1994) 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Needle & Novelty v. Drew Pearson Marketing, 820 F.Supp. 1072, 1978 (N.D.Ill.1993) (finding that private letter addressed to nonconsuming agent was not “advertising” within meaning of Lanham Act). 7 Plaintiff's bald and conclusory assertion that defendants' and alleged co-conspirators are preparing to distribute a catalogue some time in the future are not sufficient to survive the instant motion. The Court notes that plaintiff's allegations appear to present this Court with an issue that may be premature for adjudication. 8 While the Court need not reach this issue in dismissing plaintiff's claim, the Court notes that, contrary to defendant's assertion, the Lanham Act, amended in 1988, is no longer limited to misrepresentations of the quality of a defendant's own goods, but applies equally to misrepresentations of a plaintiff's goods by defendant. See S.Rep. No. 100-515, reprinted in 1988 U.S.Code Cong. & Admin.News, 5577, 5603; see also Media Arts Int'l, Ltd. v. Trillium Health Products, 25 U.S.P.Q.2d (E.D.Pa.1992) (finding infomercial making false statements about competitor's juicer actionable under Lanham Act). V. PENDENT STATE CLAIMS In addition to alleging federal claims under 15 U.S.C. § 1, § 2, and 15 U.S.C. § 1125(a), plaintiff also asserts state law claims. Where a court has jurisdiction over one or more aspects of a case, it may properly assert jurisdiction over any other aspects of the case that share a common nucleus of operative facts. See United Mine Workers v. Gibbs, 383 U.S. 715 (1966); Roco Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292 (2d Cir.1990). Although the exercise of pendent jurisdiction is a matter of the district court's discretion, once a court dismisses all federal claims, “the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state- law claims.” Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir.1992) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Therefore, in exercising its discretion, this Court dismisses all pendent state law claims. VI. SANCTIONS *8 Defendants also request the Court to sanction plaintiff under Fed.R.Civ.P. 11 for bringing a claim which defendants contend had no chance of success whatsoever. Rule 11 “explicitly and unambiguously imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the viability of a pleading before it is signed.” Knipe v. Skinner, 19 F.3d 72 (2d Cir.1994) (quoting Eastway Const. Corp. v. City of New York, 762 F.2d 243, 253 (2d Cir.1985)). Thus a court may impose sanctions when one party asserts a claim which to the best of plaintiff's “knowledge, information and belief formed after a reasonable inquiry” was not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Fed.R.Civ.P. 11. The goal of Rule 11 is to “discourag[e] dilatory and abusive litigation tactics and eliminat[e] frivolous claims and defenses, thereby speeding up and reducing the costs of the litigation process.” McMahon v. Shearson/ American Express., Inc., 896 F.2d 17, 21 (2d Cir.1990). “In deciding whether the signer of a pleading, motion, or other paper has crossed the line between zealous advocacy and plain pettifoggery, the court applies an objective standard of reasonableness.” United States v. International Brotherhood of Teamsters, 948 F.2d 1338, 1344 (2d Cir.1991). “Rule 11 is not intended to chill an attorney's creative, imaginative or enthusiastic advocacy on his client's behalf. So long as his pleadings meet the test of reasonableness and are not interposed for ... improper purposes ... sanctions are not warranted.” McMahon, 896 F.2d at 22. This applies even to those “positions that may arguably be at odds with existing precedent.” Cross & Cross Properties, Ltd. v. Everett Allied Co., 886 F.2d 497, 504 (2d Cir.1989). “Thus, not all unsuccessful legal arguments are frivolous or warrant sanction.” Mareno v. Rowe, 910 F.2d 1043 (2d Cir.1990), cert. denied, 498 U.S. 1028 (1991). Moreover, “[c]ourts should ... resolve all doubts in favor of the signer.” Cross, 886 F.2d at 504. Having reviewed the arguments raised by plaintiff's counsel in the instant case, the Court concludes that the imposition of Rule 11 sanctions is not merited. Although plaintiff's claims were dismissed by the Court, they did not rise to the level of frivolousness that would make the imposition of sanctions appropriate. CONCLUSION Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 19 of 20 Vitale v. Marlborough Gallery, Not Reported in F.Supp. (1994) 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 For the reasons stated above, defendants motion to dismiss for failure to state a claim is granted and the action is dismissed in its entirety. Additionally, defendants' request for sanctions is denied. SO ORDERED. 1 Additionally, since leave to amend pleadings is “freely granted,” Foman v. Davis, 371 U.S. 178, 182 (1962); see Richardson Greenshields Secur., Inc. v. Mui-Hin Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987), this Court hereby grants plaintiff leave to amend nunc pro tunc, and accepts the amended complaint as duly filed. 2 Although only the above named defendants have moved this Court, this opinion applies with equal force and effect to the remaining defendants, the Marlborough Gallery and Francis K. Lloyd, under res judicata or law of the case doctrines. See Arizona v. California, 460 U.S. 605, 618-19 (1988). 3 Plaintiff has named the following as co-conspirators but not defendants: members of the Pollock- Krasner Authentication Board not already named as defendants, each of the Marlborough Galleries not already named as defendants, the Parke Bernet Gallery, Sotheby's, Christie Manson & Woods International, the Yale University Press, Lee Krasner, the Krasner Estate and various leading art museums. 4 This factor can be reduced to an analysis of the cross-elasticity of demand in the market. In assessing the cross-elasticity of demand between products, the Court must consider the responsiveness of the sales of one product to price changes of another. Posing such a question in the instant action would, for instance, require the Court to examine whether the change in price of a Rothko painting would affect the demand of a Pollock painting. 5 While section 1 and 2 of the Antitrust Act are distinct causes of action, both are confined by the statute of limitations set forth in 15 U.S.C. and both cause of action are measured by the date-of-injury rule. See Wolf v. Wagner Spray Tech Corp., 715 F.Supp. 504, 508 (S.D.N.Y.1989). 6 The Ninth Circuit has analogized antitrust injury giving rise to a cause of action in a manner relevant to the instant action: “When turned away from the theater at eight o'clock because the performance is sold out, his exclusion occurs at eight, not during the performance or when it concludes at eleven o'clock.” In re: Multidistrict Vehicle Air pollution, 591 F.2d 68, 71 (9th Cir.), cert. denied sub nom. AMF, Inc. v. General Motors Corp., 444 U.S. 900 (1979); see Orgell, Inc. v. Geary's Stores, 640 F.2d 936 (9th Cir.) (finding injury was the result of an initial refusal and subsequent refusals merely restated the previous final decision therefore time barring the action), cert. denied, 454 U.S. 816 (1981). 7 Explicit in the language of § 1125 is the requirement of public deception. The Act applies to any person using in commerce any false or misleading description of fact which “is likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1125(a). See Alfred Dunhill, Ltd. v. Interstate Cigar Co., 499 F.2d 232 (2d Cir.1974) (stating that a claim for false advertising brought pursuant to the Lanham Act should be based on “false advertising” as that term is commonly understood). 8 In general, courts should avoid “entangling themselves in abstract disagreements.” In re Drexel Burnham Lambert Group, 995 F.2d 1138, 1146 (2d Cir.1993) (discussing the doctrine of ripeness) (quoting Abbott Lab v. Gardner, 387 U.S. 136, 148 (1967)). All Citations Not Reported in F.Supp., 1994 WL 654494, 1994-1 Trade Cases P 70,654, 32 U.S.P.Q.2d 1283 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:16-cv-01000-RDM Document 58-1 Filed 12/06/16 Page 20 of 20