MEMORANDUM
I. INTRODUCTION
This multidistrict litigation concerns what has come to be known as a “pay-for-delay,” or “reverse payment,” settlement—
In this case, plaintiffs aver that the brand-name manufacturer Kos Pharmaceuticals, Inc. (“Kos”) entered into anti-competitive settlement agreements in March of 2005 with the generic manufacturer Barr Pharmaceuticals, Inc. (“Barr”) in order to terminate patent-infringement litigation brought by Kos against Barr in the U.S. District Court for the Southern District of New York. Presently before the Court is defendants’ Joint Motion to Dismiss the Direch-Purchaser Plaintiffs and End-Payor Plaintiffs’ Consolidated Amended Complaints (“Motion to Dismiss”) and defendants’ Joint Motion for Judicial Notice in Support of Joint Motion to Dismiss the Consolidated Amended Complaints (“Motion for Judicial Notice”), on which the Court heard oral argument on June 24, 2014. For the reasons set forth below, defendants’ Motion to Dismiss is granted in part and denied in part, and defendants’ Motion for Judicial Notice is denied.
II. BACKGROUND
A. Regulatory Background
Prior to marketing or selling a new drug (i.e., a “pioneer drug” or “brand-name drug”) in the United States, a potential drug manufacturer must obtain a grant of approval from the Food & Drug Administration (“FDA”). To do so, an applicant must file a New Drug Application (“NDA”), which contains, inter alia, information about safety and efficacy of the drug, the components of the drug, and any patents issued on the composition of the drug or methods for its use. 21 U.S.C. § 355(b)(1). Upon approval of an NDA, the FDA publishes the drug and patent information in its directory of Approved Drug Products with Therapeutic Equivalence Evaluations, commonly known as the “Orange Book.” Apotex Inc. v. UCB, Inc.,
In an effort to speed up the approval process for generic versions of already FDA-approved brand-name drugs, Congress passed the Hatch-Waxman Act (“Hatch-Waxman”) in 1984. See Pub.L. No. 98-417, 98 Stat. 1585 (1984). Under Hatch-Waxman, a potential generic manufacturer only needs to file an Abbreviated New Drug Application (“ANDA”) if it can establish that its generic is the bioequivalent of an FDA-approved brand-name drug. See 21 U.S.C. § 355(j)(2)(A). The process for filing an ANDA is considerably more streamlined than that for an NDA because it allows the applicant to “piggyback” on the safety and efficacy findings made by the FDA in the course of approving the brand-name drug, rather forcing the applicant to conduct the time-consuming and costly trials anew. Teva Pharm., USA, Inc. v. Leavitt,
An ANDA applicant must, inter alia, make one of four “paragraph certifications”: (1) no patent information for the brand-name drug has been filed with the FDA (paragraph I); (2) the patent has expired (paragraph II); (3) the patent will expire on a specifically identified date (paragraph III); or (4) the “patent is inval
An applicant that makes a paragraph IV certification must send prompt notice to the patent holder of its position that the patent is invalid or will not be infringed by the applicant’s ' generic drug. Id. § 355(j)(2)(B). This notification triggers a forty-five day period during which the patent holder may file an infringement lawsuit against the ANDA applicant to prevent the FDA from proceeding with the ANDA application process. Id. § 355(j)(5)(B)(iii). The ANDA thus gives the brand-name manufacturer a jurisdictional basis on which it may bring an infringement suit without the generic having yet come to market. Teva Pharm. USA, Inc. v. Sebelius,
Consumers benefit if generic manufacturers routinely make paragraph IV certifications — more invalid patents are challenged, non-infringing generics are marketed, and competition is increased. Thus, to encourage generic entry and to compensate ANDA filers for the expense and risk of a potential infringement lawsuit, federal law grants the first generic manufacturer to file a paragraph IV ANDA application (i.e., the “first-filer”) a 180-day period of exclusive marketing rights. Sebelius,
While termed an ‘-‘exclusivity period,” the 180-day period is “exclusive” only with respect to other ANDA applicants. In other words, the statutory scheme, as interpreted by the courts, does “not prohibit the holder of an approved NDA from marketing ... its own ‘brand-generic’ version of its drug.” Teva Pharm. Indus. Ltd. v. Crawford,
B. Factual Background
AbbVie Inc. (“AbbVie”), a drug manufacturer that spun off of Abbott Laborato
“[A]fter conducting extensive research and analysis regarding the patents that Kos had registered,” Barr filed an ANDA with the FDA in October 2001, seeking to manufacture and sell a generic equivalent of the 1000 mg dosage of Niaspan. DP Compl. ¶ 67; EP Compl. ¶ 60. As part of the ANDA, Barr filed a paragraph IV certification, stating that its generic product did not infringe any of the patents listed with the FDA covering Niaspan and/or that these patents were invalid and unenforceable. DP Compl. ¶¶ 67-68; EP Compl. ¶¶ 60, 61. As the first-filer, “Barr would be entitled to a 180-day period of market exclusivity once it received final approval from the FDA to enter the market.” EP Compl. ¶ 61; see also DP Compl. ¶ 68. Thereafter, Barr filed additional ANDA applications with respect to 500 and 750 mg dosages of Niaspan. DP Compl. ¶ 72; EP Compl. ¶ 68.
In March 2002, within the statutorily-specified forty-five day period following Barr’s initial paragraph IV certification, Kos initiated the first of a series of patent-infringement lawsuits against Barr in the U.S. District Court for the Southern District of New York, alleging infringement of its Niaspan patents. DP Compl. ¶ 70; EP Compl. ¶ 62. Filing of this lawsuit triggered the thirty-month stay provided for in Hatch-Waxman, during which the FDA could not approve any other ANDA seeking to market and sell a generic version of Niaspan. DP Compl. ¶ 70; EP Compl. ¶ 62. In Kos’s infringement lawsuits, Barr filed several counterclaims against Kos, seeking declaratory judgments that Kos’s Niaspan patents were invalid and/or unenforceable. DP Compl. ¶ 76; EP Compl. ¶ 65. .After consolidating the various suits, U.S. District Court Judge Lewis Kaplan, the assigned judge, scheduled trial for January 2006. DP Compl. ¶¶ 71-77, 79; EP Compl. ¶¶ 63-66.
Under Hatch-Waxman, the FDA could not issue a final approval of Barr’s ANDA until March 31, 2005 — the date that the last of the statutory stays was to expire. DP Compl. ¶ 78; EP Compl. ¶ 63. Nevertheless, in May and June of 2003, the FDA
Having decided to launch at-risk rather than wait until the infringement lawsuit was decided, Barr began to aggressively accumulate inventory of its tentatively approved generics in the winter of 2004. DP Compl. ¶¶ 80-81; EP Compl. ¶¶ 69-70, 73. Kos realized that Barr was serious, and its stockholders took note. In December of 2004, reports of Barr’s impending at-risk launch caused Kos’s shares to drop thirteen percent. DP Compl. ¶ 81. Recognizing that Barr’s impending at-risk launch posed “a real competitive threat,” Kos “acted swiftly in response” to Barr’s plans. EP Compl. ¶ 71; see also DP Compl. ¶ 83. On March 7, 2005, Kos filed an application for a preliminary injunction in the U.S. District Court for the Southern District of New York to halt Barr’s market entry. DP Compl. ¶ 85; EP Compl. ¶ 73. But because Kos “knew there was a substantial risk that it would lose the patent litigation,” EP Compl. ¶ 75; see also DP Compl. ¶ 91, Kos could not rely on its application for a preliminary injunction alone. Kos therefore began manufacturing an AG to compete with Barr’s generic versions of Niaspan should Barr’s plans of an at-risk launch come to fruition. DP Compl. ¶ 84; EP Compl. ¶ 72. By the end of the first quarter of 2005, Kos had accumulated more than $1.3 million in inventory in anticipation of launching an AG. EP Compl. ¶¶ 45-48, 71-72.
On March 18, 2005, Judge Kaplan held a hearing on Kos’s application for a preliminary injunction. DP Compl. ¶ 85; EP Compl. ¶ 73. At the time of the hearing, “Barr was ready to launch its generic equivalent of Niaspan, [a]t-[r]isk.” EP Compl. ¶ 73; see also DP Compl. ¶ 86. With Judge Kaplan yet to rule on Kos’s application, on March 30, 2005 — the day before the thirty-month stay was set to expire — Kos and Barr announced that they had reached a settlement. DP Compl. ¶ 89; EP Compl. ¶ 74. Postponing any ruling on Kos’s application for a preliminary injunction in order to allow the parties to formalize their settlement, Judge Kaplan issued a Conditional Order of Discontinuance on March 30, 2005. DP Compl. ¶ 89; EP Compl. ¶ 74.
Thereafter, Kos and Barr entered into three separate but interrelated contracts
Settlement and Licensing Agreement.
Kos and Barr agreed to drop all claims and counterclaims pending against each other in the patent lawsuits. Kos gave Barr a license for all of the patents arguably covering Niaspan on the condition that Barr would not bring a generic equivalent of Niaspan to market until September 20, 2013 (or such earlier time as may be required to preserve Barr’s right to market a generic exclusively for 180 days). Kos also agreed that it would not launch an authorized generic version of Niaspan after Barr ultimately entered the market with, generic extended-release niacin even though it would make economic sense for Kos to launch an authorized generic and Kos had been planning to do so; of course, the harm to Barr of Kos’ [sic] launching of an authorized generic would have been substantial. And, Barr explicitly agreed that it would not launch a generic equivalent of Niaspan until September 20, 2013.
Co-Promotion Agreement. For as long as Barr kept its generic equivalent of Niaspan off the market, as provided in the Settlement and Licensing Agreement, Kos agreed to pay Barr (through Duramed and DPSC, two Barr subsidiaries, which later became Teva Women’s Health, Inc.) a royalty on all of Kos’ [sic] sales of Niaspan and Advicor, another Kos drug. Barr, Duramed, and DPSC agreed to promote Niaspan and Advicor to obstetricians, gynecologists, and other doctors specializing in women’s health. The royalty that Kos agreed to pay to Barr was to be based upon overall sales of Niaspan and Advicor, regardless of whether the sales were generated by Barr’s -sales force, and provided another incentive for Barr not to disrupt brand Niaspan sales.
License and Manufacturing Agreement. Kos (and its subsidiary, Kos Life Sciences Inc.) made a non-refundable lump-sum payment to Barr, ostensibly as compensation for Barr’s investment in developing FDA-approved manufacturing processes for Niaspan and Advicor. Kos (and Kos Life Sciences Inc.) also agreed to make quarterly payments to Barr for every quarter that Barr remained ready to manufacturer [sic] Niaspan and Advicor. Barr agreed to serve as a ready back-up supplier to Kos for those products, and agreed to sell them to Kos at an agreed-upon contract price. If Barr sold a generic equivalent to Niaspan to any third-party before September 20, 2013, Kos would have no further obligation to make quarterly payments to Barr.
DP Compl. ¶ 94 (footnote omitted).
In April 2005, Kos and Barr issued a joint press release, announcing the settlement of their litigation and describing the three agreements. EP Compl. ¶¶ 87, 163. The settlement was just in time to thwart Barr’s planned at-risk launch. On April 26, 2005, the FDA granted final approval to Barr to manufacture and market generic Niaspan in all dosages. DP Compl. ¶ 108; EP Compl. ¶ 80. Barr subsequently disposed of its inventory of the generics, and-Kos did the same for its inventory of the AG. DP Compl. ¶ 109; EP Compl. ¶ 81. In August 2005, Kos publicly filed all three agreements with the SEC, disclosing the structure of the agreed-upon payments.
In December 2006, Abbott acquired Kos. DP Compl. ¶¶ 110-111; EP Compl. ¶¶ 88-89, and in December 2008, Teva Pharmaceuticals Industries, Ltd. (“Teva”) acquired Barr. DP Compl. ¶ 115. As Kos and Barr’s respective successors, Abbott and Teva continued to adhere to the KosBarr settlement agreement. DP Compl. ¶ 115; EP Compl. ¶ 93. In January 2013, Abbot spun off its pharmaceutical business into AbbVie, a new publicly-traded company, to which the settlement agreements were assigned. DP Compl. ¶ 125; EP Compl. ¶¶ 101-102. No generic entered the market until September 20, 2013, when Teva launched its generic, triggering the start of its 180-day exclusivity period. DP Compl. ¶¶ 127, 134; EP Compl. ¶¶2, 4-5, 104, 107-109, 12-133. In compliance with the settlement agreements, AbbVie withheld an AG. Id.
C. Procedural Background
In April 2013, the first of seventeen putative class-action lawsuits
The direct-purchaser plaintiffs’ Complaint alleges: (1) defendants violated Section Two of the Sherman Act, see 15 U.S.C. § 2, by “allocating] all sales of extended-release niacin in the United States to Kos; delaying] the sales of generic Niaspan products; and fixing] the price at which the direct purchaser plaintiffs and members of the [putative] class would pay for extended-release niacin at the higher, brand name price” (Count I), see DP Compl. ¶ 179; and (2) defendants violated Section One of the Sherman Act, see 15 U.S.C. § 1, by “entering] into ... a continuing illegal contract, combination and conspiracy in restraint of trade under which Kos, (and later Abbott/AbbVie) paid Barr/Teva substantial consideration in exchange for Barr/Teva’s agreement to delay bringing its generic version of Niaspan to the market” (Count II), see DP Compl. ¶ 186.
On March 17, 2014, defendants jointly filed the pending Motion to Dismiss and the pending Motion for Judicial Notice. Plaintiffs filed a Joint Opposition to defendants’ Motion to Dismiss on May 1, 2014, and defendants filed a Joint Reply in Support of Their Motion to Dismiss on June 2, 2014. On June 24, 2014, the Court heard extensive oral argument on the pending Motions, which are now fully briefed and ripe for adjudication.
III. STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defense of “failure to state a claim upon which relief can be granted” may be raised by motion to dismiss. In analyzing such a motion, the Court “accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff.” Phillips v. Cnty. of Allegheny,
“To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level.... ’” Victaulic Co. v. Tieman,
IV. ANALYSIS
A. Statute of Limitations
The Court first addresses defendants’ argument that plaintiffs’ federal antitrust claims are time-barred. Plaintiffs do not dispute that the applicable limitations period is four years, however, they argue that their claims are nonetheless timely under the continuing-violation and/or fraudulent-concealment doctrines. The Court addresses each doctrine in turn.
1. Continuing-Violation Doctrine
Under the continuing-violation doctrine, “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period.” Cowell v. Palmer Twp.,
The Court agrees with plaintiffs that Abbott/AbbVie’s alleged ongoing sales of Niaspan at a supracompetitive price constitute a continuing violation. Every
Moreover, while it has yet to consider the issue in the context of a pay-for-delay lawsuit, in other antitrust cases, the U.S. Court of Appeals for the Third Circuit has specifically rejected the argument that an allegedly anticompetitive agreement must have occurred within the limitations period for the continuing-violation doctrine to apply. For instance, in In re Lower Lake Erie Iron Ore Antitrust Litigation, the Third Circuit rejected a “narrow rule that a plaintiff must tie all damages to specific overt acts within the limitations period,” citing the fact that “continuing and accumulating damage may result from intentional, concerted inaction.”
2. Fraudulent Concealment
Because the continuing-violation doctrine only allows a plaintiff to sue for
In asserting that they have alleged sufficient facts to sustain their heightened pleading burden under Rule 9(b), plaintiffs principally rely on four categories-of allegations in the Complaints: (1) “Kos and Barr structured their agreement to cloak the payments under pretextual promotion and supply agreements”; (2) “when Kos and Barr announced their agreement, they made false statements, claiming that they were expediting generic entry, knowing they were actually delaying generic entry”; (3) “when executives from Kos and Barr were asked how much money changed hands, they refused to answer”; and (4) “when Kos filed copies of the settlement documents with the SEC, Kos redacted the dollar figures [and material terms] to hide the size of its large payments to Barr.” Opp’n to Mot. to Dismiss at 29-30 (citing DP Compl. ¶¶ 93, 97, 105-107; EP Compl. ¶¶ 82, 87, 163, 164). With respect to the third prong, that of diligence, plaintiffs argue that they have “plead[ed] both that they did not know about the conspiracy and that [defendants withheld pertinent facts that would prompt a reasonably diligent person to investigate the existence of a conspiracy.” Id. at 30.
The Court concludes that plaintiffs have not pleaded fraudulent concealment with particularity as required by Federal Rule of Civil Procedure 9(b). As in the vast majority of pay-for-delay suits, “not only were the material terms of the settlement not concealed, [but] defendants affirmatively disclosed these terms to the public,” including in press releases and in SEC filings. In re Ciprofloxacin Hydrochloride Antitrust Litig.,
Finally, even had plaintiffs adequately alleged that defendants took steps to conceal facts underlying plaintiffs’
B. Laches
Next, defendants argue that, notwithstanding application of the continuing-violation doctrine, the defense of laches bars plaintiffs’ claims because plaintiffs have failed to exercise diligence in bringing timely suits, and defendants have been prejudiced as a result. See, e.g., Mot. to Dismiss at 1 (“As a result of Plaintiffs’ lack of diligence, Kos and Barr have suffered economic prejudice. As Plaintiffs sat idle, Abbot purchased Kos, invested in Niaspan, and caused sales to more than double.”). Thé elements of laches are (1) lack of diligence by the plaintifffs), and (2) prejudice to the defendant(s) as a result of the delay. E.E.O.C. v. Great Atl. & Pac. Tea Co.,
Whether the doctrine of laches can bar a pay-for-delay suit for antitrust damages is a matter of first impression. Regardless, the Court need not decide this issue at this time because “facts evidencing unreasonableness of the delay, lack of excuse, and material prejudice to the defendants]” are not clearly set forth in plaintiffs’ Complaints. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc.,
C. Existence of a Reverse Payment
The third ground on which defendants move to dismiss the Consolidated Amended Complaints is that plaintiffs have not alleged the existence of a “large” and “unjustifiable” “reverse payment,” as defined by the Court in FTC v. Actavis, — U.S.-,
In their briefing, defendants examine each of the three settlement agreements in turn. With respect to the Licensing Agreement, defendants argue that the no-AG provision does not constitute a reverse payment because it “involved only non-monetary transfers from Kos to Barr” and, thus, is akin to a non-suspect “license from the patent holder to the [alleged patent infringer] to enter [the market] prior to the patent’s expiration.” See Mot. to Dismiss at 23. Plaintiffs disagree with defendants’ assertion that a “reverse payment” must take the form of cash consideration. Under plaintiffs’ definition of the term, a “reverse payment” is “anything of value to the generic that can induce it to ‘give up the patent fight.’ ” Opp’n to Mot. to Dismiss at 16 (quoting Actavis,
Since Actavis, only three courts have ruled on whether a “reverse payment” must involve the exchange of cash, and they have reached divergent conclusions.
The Court agrees with Judge Young that the term “reverse payment” is not limited to a cash payment. Far from requiring cash consideration, Black’s Law Dictionary expansively defines “payment” as “performance of an obligation by the delivery of money or some other valuable thing accepted in partial or full discharge of the obligation.” Bryan Garner, Black’s Law Dictionary 1309 (10th ed.2014) (emphasis added). Consistent with this broad definition, courts have refused to limit the term “payment” to an exchange of cash in numerous areas of the law. See, e.g., United States v. Juan-Manuel,
Moreover, the Court rejects defendants’ argument that a no-AG provision has the same economic effect as the grant of an exclusive license to enter the market prior to the expiration of a patent. The statement of the Supreme Court in Actavis on which defendants rely in making this argument is premised on the theory that, when bargaining for an early entry date alone, the parties are likely to agree on a date that reasonably approximates each party’s relative strength in the infringement litigation.
Finally, even assuming that the no-AG clause itself is not a reverse payment (and the Court concludes that it is), defendants may not improperly “dismember” plaintiffs’ Consolidated Amended Complaints by examining each of the three settlement agreements in isolation. See, e.g., In re Blood Reagents Antitrust Litig.,
Although during oral argument, counsel for defendants attempted to distinguish the Co-Promotion and Manufacturing Agreements in this case from those deals at issue in Actavis, the allegations in the two cases are very similar. Just as the payments for delayed entry in Actavis were alleged to be disguised as compensation to three generic manufacturers for backup-manufacturing assistance and for promoting brand-name AndroGel to urologists and primary care doctors,
The plausibility of plaintiffs’ allegations concerning the true nature and purpose of these payments is bolstered by the fact that these agreements were expressly contingent on Barr’s promise to delay generic entry. Specifically, plaintiffs assert that, under the Co-Promotion Agreement, Kos was only obligated “to pay Barr a royalty on all of Kos’[s] sales of Niaspan and Advicor,” “[for] as long as Barr kept its generic equivalent of Niaspan off the market.” DP Compl. ¶ 94, and that, under the Manufacturing Agreement, “[i]f Barr sold a generic equivalent of Niaspan to any third-party before September 20, 2013, Kos would have no further obligation to make quarterly payments to Barr.” Id. (emphasis added). These allegations are consistent with the contention that the payments provided for in the Co-Promotion and Manufacturing Agreements did not “reflect[] traditional settlement considerations,” Actavis,
In concluding that plaintiffs’ allegations are sufficient, the Court rejects defendants’ attempt to discredit these allegations as “eonclusory assertions” akin to the “formulaic recitation of the elements of a cause of action.” See Mot. to Dismiss at 25 (quoting Iqbal,
Accordingly, the Court concludes that plaintiffs have plausibly alleged the existence of a reverse payment for delayed entry with no legitimate procompetitive justification. The Motion to Dismiss plaintiffs’ Complaints on this ground is denied.
D. Antitrust Injury
The final ground on which defendants have moved to dismiss plaintiffs’ federal antitrust claims is that plaintiffs have failed to allege antitrust injury, which “is a necessary ... condition of antitrust standing.” Barton & Pittinos, Inc. v. Smithkline Beecham Corp.,
1. Judicial Notice of Facts in Underlying Patent Litigation
First, defendants assert that “[historical facts concerning the [underlying] patent litigation, of which the Court may take judicial notice----compel the conclusion that Barr would not have prevailed in that litigation, and thus would have been prevented by law from marketing a generic version of Niaspan.” Reply in Supp. of Defs.’ Mot. to Dismiss at 11. Specifically, defendants argue that these documents reveal that, in opposing Kos’s application for a preliminary injunction, Barr relied on a faulty theory of what constitutes an “invalidating public use,” which the U.S. Court of Appeals for the Federal Circuit rejected just weeks after the settlement. See Mot. to Dismiss at 30-31 (citing SmithKline Beecham Corp. v. Apotex Corp.,
“[A] district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings,” except in limited circumstances. In re Burlington Coat Factory Sec. Litig.,
2. Sufficiency of the Allegations in the Complaints
Because the Court will not take judicial notice of the contents of the documents in the underlying infringement litigation, the question becomes whether plaintiffs have plausibly averred that they have suffered an antitrust injury that flows from the allegedly anticompetitive settlement agreements. Defendants argue that plaintiffs have failed to do so, asserting that the Complaints lack “factual allegations that, if true, would support the conclusion that Barr would have prevailed in the [patent] litigation.” Mot. to Dismiss at 28 (quoting Areeda & Hovenkamp, Antitrust Law ¶ 338 (3d ed.2007)). The Court rejects defendants’ argument and concludes that plaintiffs’ allegations are sufficient.
Plaintiffs have plausibly alleged that, but for the anticompetitive settlement agreements, Barr would have prevailed in the underlying patent litigation against Kos. First, a large, unexplained reverse, payment “normally suggests] that the patentee has serious doubts about the patent’s survival.” See id. at 2236 (majority). One would expect that, had Kos been
Moreover, plaintiffs do not rely on allegations of a reverse-payment alone. Plaintiffs also allege that prior to filing its ANDA applications, Barr spent “over $2.3 million” in conducting “extensive research analysis” and “legal due diligence ... concerning the potential infringement or invalidity of Kos’ [sic] patents,” DP Compl. ¶ 67, and that “Kos knew there was a substantial risk that it would lose the patent litigation,” id. ¶ 75. See also id. ¶ 91 .(alleging that Kos “[r]ecogniz[ed] the substantial likelihood that its Niaspan patents would be invalidated and/or that the generics’ products would be adjudged non-infringing”). These factual allegations provide additional support for plaintiffs’ position on antitrust injury.
Finally, Barr’s willingness to launch at risk signifies that Barr was confident that it would ultimately prevail against Kos in the infringement litigation. Launching a generic at-risk during the midst of patent litigation is risky; “if the court [subsequently] finds the subject patent(s) valid, enforceable, and infringed, the generic company may face substantial damages from its sales of an infringing product.” Id. ¶ 5. Thus, because a generic manufacturer embroiled in patent-infringement litigation “must ... be sure of its footing to plan for attempt an ‘at risk’ launch,” id. ¶ 80, “preparations by a generic firm to launch ‘at risk’ ” may allow a Court to “infer[ that] .... the patent protection is weak,” C. Scott Hemphill, An Aggregate Approach to Antitrust: Using New Data and Rulemaking to Preserve Drug Competition, 109 Colum. L.Rev. 629, 650 (2009).
In this case, plaintiffs have alleged not only that Barr planned to launch at-risk before the conclusion of the infringement litigation, but also that “Barr was so sure ... that Kos’ [sic] Niaspan patents were invalid, unenforceable, or not infringed by Barr’s product ... that Barr planned to launch its generic extended-release niacin” at the very first opportunity: “as soon as the FDA gave the final green light.” DP Compl. ¶ 5. Further, the Court can infer that Barr’s threat was credible. Plaintiffs have alleged that, by December 2004, Kos’s stock dropped by thirteen percent in anticipation of Barr’s impending at-risk launch,” and that, “[b]y the end of the first quarter of 2005, Kos had accumulated more than $1.3 million in inventory” in the event that Barr’s plans came to fruition. See EP Compl. ¶¶ 45-48, 71-72.
Finally, in concluding that plaintiffs’ allegations are sufficient to pass muster, the Court rejects defendants’ assertion that plaintiffs’ allegations lack sufficient detail. “Plaintiffs ... are not required to plead detailed evidentiary matter in order to survive a motion to dismiss.” Direct Benefits, LLC v. TAC Fin. Inc., No. 13-cv-1185,
Y. ANALYSIS OF STATE-LAW CLAIMS
The end-payor plaintiffs collectively assert claims under the antitrust statutes of twenty-one states and the District of Columbia and the consumer-protection statutes of sixteen states and the District of Columbia. The end-payor plaintiffs also bring common-law claims for unjust enrichment under the laws of forty-eight states, the District of Columbia, and unspecified U.S. territories. Defendants move to dismiss certain of these claims on the grounds that plaintiffs lack standing and/or that plaintiffs have failed to allege facts demonstrating a plausible right to relief.
A. Constitutional Standing
As the standing requirement is derived from Article III, it is a threshold inquiry in every case, one for which “[t]he party invoking federal jurisdiction bears the burden of [proof].” Lujan v. Defenders of Wildlife,
To establish Article III standing, the named plaintiffs in a putative class action “must allege and show that they personally have been injured.” Klein v. Gen. Nutrition Cos.,
Because standing must be resolved on a claim-by-claim basis, the Court agrees with defendants that the “named plaintiffs lack standing to assert claims under the laws of the states in which they do not reside or in which they suffered no injury.”
The end-payor plaintiffs have not alleged that any one named plaintiff either resides in or made purchases and/or reimbursements in Alaska, Arkansas, the District of Columbia, Hawaii, Idaho, Kansas, Louisiana, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Washington, or the unspecified U.S. territories. Accordingly, the end-payor
B. Claims Brought Under State Antitrust Statutes
Next, defendants move to dismiss the end-payor plaintiffs’ claims brought under the antitrust statutes of Oregon, Rhode Island, and Utah for lack of statutory standing. The Court addresses defendants’ arguments in turn.
1. Oregon and Rhode Island
First, defendants move to dismiss the end-payor plaintiffs’ Oregon and Rhode Island antitrust claims on the ground that both “jurisdictions mirror federal law in prohibiting antitrust claims by indirect purchasers.”
The end-payor plaintiffs are correct in their assertions that the Oregon legislature passed an Illinois Brick repealer statute in 2010, see Or.Rev.Stat. § 646.770-780, and that the Rhode Island legislature did so in 2013, see R.I. Gen. Laws § 6-36-7(d). However, the repealer statutes of both states are presumed to apply only prospectively, absent evidence of legislative intent to the contrary. Hydro-Mfg., Inc. v. Kayser-Roth Corp.,
2. Utah
Defendants argue that the endpayor plaintiffs’ claims brought under the Utah Antitrust Act must be dismissed for failure to meet Utah’s statutory citizenship or residency requirement. See Utah Code § 76-10-3109(l)(a) (“A person who is a citizen of this state or a resident of this state and who is injured or is threatened with injured or is threatened with injury may bring an action for injunctive relief and damages.... ” (emphasis added)). In response, the end-payor plaintiffs assert that the statutory provision in question only requires that a member of the putative class, rather than one of the named end-payor plaintiffs, be a resident or citizen of Utah.
Although there is a dearth of case law on this point, the Court agrees with the conclusion of the court in In re Magnesium Oxide Antitrust Litigation that Utah’s citizen/residency requirement is one of statutory standing.
C. Claims Brought Under State Consumer-Protection Statutes
Defendants move to dismiss the endpayor plaintiffs’ claims brought under the consumer-protection statutes of Delaware, Minnesota, New Hampshire, Pennsylvania, Rhode Island, Tennessee, and Virginia.
1. Minnesota, Pennsylvania, and Virginia
Defendants argue that the consumer-protection laws of Minnesota, see Minn.Stat. § 325F.69(1), Pennsylvania, see 73 P.S. Trade & Commerce § 201-2, -3, and Virginia, see Va.Code Ann. §§ 59.1-196 to -207, only apply to conduct that is deceptive or fraudulent, as opposed to merely anticompetitive. See, e.g., In re New Motor Vehicles Canadian Exp. Antitrust Litig.,
Although there are some cases involving allegations of delayed generic drug entry in which courts have sustained claims brought under these and similar consumer-protection statutes, these cases are factually distinguishable. Unlike in this case, those indirect-purchaser plaintiffs did allege deception and fraud as part of the alleged anticompetitive conspiracies, including the filing of sham-infringement lawsuits, see Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC,
2. New Hampshire
Defendants argue that the Court must dismiss the end-payor plaintiffs’ claims brought under the New Hampshire Consumer Protection Act (NHCPA) because the end-payor plaintiffs have not alleged that unfair and/or deceptive conduct occurred within New Hampshire, as the statute requires. See N.H.Rev.Stat. Ann. § 358-A:2 (rendering it “unlawful for any person to use any unfair method of competition or any unfair or deceptive act
“[C]ourts interpreting New Hampshire’s consumer protection law disagree as to whether a nationwide scheme in which, plaintiffs play a higher price in the state is sufficient to satisfy the statute’s requirements.” In re Ductile Iron Pipe Fittings (DIPF) Indirect Purchaser Antitrust Litig., No. 12-cv-169,
Although the case law is admittedly mixed, the Court concludes that a broad construction of the statute is consistent with the New Hampshire legislature’s intent that “the CPA ... be construed broadly.” LaChance v. U.S. Smokeless Tobacco Co.,
Finally, other courts have refused to dismiss allegations similar to those at issue in this case. See In re Chocolate Confectionary Antitrust Litig.,
3. Rhode Island
The final consumer-protection claim that defendants move to dismiss is the end-payor plaintiffs’ claim brought under Rhode Island’s Deceptive Trade Practices Act (DTPA). Defendants assert that this “law [1] does not cover the challenged conduct and [2] does not create a claim for any business entity plaintiffs.”
With respect to defendants’ first argument — that the statute does not cover the type of anticompetitive conduct alleged in this case — numerous courts have sided with the end-payor plaintiffs’ position. See, e.g., In re Auto. Parts Antitrust Litig., No. 12-md-02311,
Defendants did not raise their second ground for dismissal — that the DTPA does not create a claim for any business-entity plaintiffs — until they filed their Reply. Thus, the end-payor plaintiffs have not had an opportunity to respond. The Court declines to rule on this issue under these circumstances
D. Unjust Enrichment Claims
Defendants lastly move to dismiss the end-payor plaintiffs’ claims for unjust enrichment brought under the laws of the following states: Alabama, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Kentucky, Maryland, New Hampshire, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, and Virginia.
1. States Barring Statutory Recovery for Indirect Purchasers (Colorado, Connecticut, Delaware, Georgia, Illinois, Kentucky, Maryland, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Virginia)
First, defendants argue that plaintiffs’ unjust-enrichment claims should be
This Court joins this majority of courts in concluding that “allowing ... unjust enrichment claims in those states that explicitly disallow indirect purchasers from pursuing antitrust [and] consumer-protection claims ... would result in circumvention of the policies expressed by state legislatures through limitations inherent in those laws.” Sheet Metal Workers,
The end-payor plaintiffs cite no authority .for the proposition that indirect purchasers may bring an antitrust or consumer-protection claim under the laws of Colorado, Delaware, Georgia, Kentucky, Pennsylvania, South Carolina, Texas, or Virginia, or for the proposition that these states allow indirect purchasers to recover for an antitrust violation by way of an autonomous unjust-enrichment claim.
a)Connecticut
Defendants argue that the end-payor plaintiffs’ unjust-enrichment claim brought under Connecticut common law should be dismissed because indirect purchasers cannot seek recovery under either the Connecticut Antitrust Act or the Connecticut Unfair Trade Practices Act (CUPTA). The Court agrees. In Vacco v. Microsoft Corp., the Supreme Court of Connecticut held that indirect purchasers could not bring suit under either statute, citing “the same concerns that the [C]ourt in Illinois Brick identified in declining to allow indirect purchasers to recover damages under § 4 of the Clayton Act.”
The end-payor plaintiffs’ citation to FTC v. Mylan,
b)Illinois
Defendants similarly argue that allowing the end-payor plaintiffs to bring an unjust-enrichment claim under the common law of Illinois would subvert the choice of the Illinois legislature to follow Illinois Brick. The end-payor plaintiffs do not dispute that neither the Illinois Antitrust Statute nor the Illinois Consumer Fraud and Deceptive Business Practices Act authorizes them to bring suit. They argue, however, that an unjust-enrichment claim is a separate cause of action under the common law of Illinois, and that such claim should be allowed to proceed.
The Court rejects the end-payor plaintiffs’ argument. First, the viability of an unjust-enrichment claim as “an independent cause of action ... is unsettled in Illinois.” Reid v. Unilever U.S., Inc.,
c)Ma-n/icmd
Defendants argue that the end-payor plaintiffs may not pursue a claim for unjust enrichment under Maryland law because the legislature has not provided them with a statutory cause of action. Defendants are correct that, with certain inapplicable exceptions, indirect purchasers cannot recover under either the Maryland
Although the end-payor plaintiffs do not contest this point, they argue that Maryland common law recognizes unjust enrichment as an independent cause of action. The only state-law case that the end-payor plaintiffs ,cite in support of this argument, Bank of America v. Gibbons,
d) Oregon
With respect to the end-payor plaintiffs’ Oregon unjust-enrichment claim, this Court ruled supra that, as of 2010, indirect purchasers may bring suit under the Oregon Antitrust Act in light of passage of an Illinois Brick repealer statute by the Oregon legislature. Accordingly, the assertion of an unjust-enrichment claim by indirect purchasers is no longer contrary to Oregon" public policy. See In re Flonase Antitrust Litig.,
e) Rhode Island
Finally, defendants argue that the Court should dismiss the end-payor plaintiffs’ Rhode Island unjust-enrichment claim on the ground that Rhode Island also adheres the doctrine espoused by Illinois Brick. However, as discussed supra, Rhode Island passed an Illinois Brick repealer statute in 2013, and the end-payor plaintiffs also have stated a claim under Rhode Island’s DTPA. For those reasons, the end-payor plaintiffs’ Rhode Island unjust-enrichment claim may also proceed.
2. State Whose UnjusL-Enrichment Doctrine Applies Only to Intrastate Commerce (Alabama)
Defendants assert that the end-payor plaintiffs’ Alabama unjust-enrichment claim should be dismissed because the Alabama antitrust statute requires that the allegedly anticompetitive conduct be intrastate in nature. Defendants fail to address, however, whether a claim under Alabama’s consumer-protection statute would be similarly barred,
Defendants argue that, under Florida law, the end-payor plaintiffs must allege that they directly conferred a benefit upon defendants in order to state an unjust-enrichment claim. Courts interpreting Florida law have ruled inconsistently on this issue. Compare In re Flonase,
The Court agrees with the end-payor plaintiffs that dismissal is inappropriate, at least at this juncture, given the persuasive reasoning of “several recent cases ... that [have] permitted] [Florida] unjust enrichment claim[s] to stand where the benefit .is conferred through an intermediary.” Ace-to Corp. v. TherapeuticsMD, Inc.,
That said, it has come to this Court’s attention that the Supreme Court of Florida has recently granted review of a decision, in which a Florida intermediate appellate court held, inter alia, that “[u]njust enrichment requires that [a] benefit be direct to the litigant.” See Kopel v. Kopel,
4. States that Do Not Recognize Unjust Enrichment as a Standalone Cause of Action (California and New Hampshire)
Finally, defendants move to dismiss the end-payor plaintiffs’ California and New Hampshire unjust-enrichment claims on the ground that neither state recognizes unjust-enrichment as an independent cause of action. The Court addresses the law of each state in turn.
a) California
First, defendants argue that unjust enrichment is not a separate cause of action in California. Although California law is not completely settled on whether a plaintiff may independently bring an unjust-enrichment claim, the Court finds persuasive the line of cases that have held that California law does not recognize unjust enrichment as a cause of action. In California, unjust enrichment is instead “ ‘a general principle, underlying various legal doctrines and remedies,”’ wiiich “is synonymous with restitution.” Melchior v. New Line Prods., Inc.,
b) New Hampshire
Finally, defendants argue that the endpayor plaintiffs’ New Hampshire unjust-enrichment claim should be dismissed because “unjust enrichment is not an independent cause of action” under New Hampshire law. Mot. to Dismiss app’x A-5. However, the Court has concluded that the end-payor plaintiffs’ claim under the NHCPA may proceed, and courts have allowed indirect purchasers to bring parasitic unjust-enrichment claims based on defendants’ violations of New Hampshire’s consumer-protection statute. See, e.g., In re Chocolate Confectionary,
VI. CONCLUSION
For the reasons set forth above, defendant’s Motion to Dismiss is granted in part and denied in part and defendants’ Motion for Judicial Notice is denied. An appropriate order follows.
ORDER
AND NOW, this 5th day of September, 2014, upon consideration of defendants’ Joint Motion for Judicial Notice in Support of Joint Motion to Dismiss the Consolidated Amended Complaints (Document No. 68, filed March 17, 2014) [hereinafter Motion for Judicial Notice], defendants’ Joint Motion to Dismiss the Consolidated Amended Complaints (Document No. 69, filed March 17, 2014) [hereinafter Motion to Dismiss], Plaintiffs’ Joint Opposition to Defendants’ Joint Motion to Dismiss the Consolidated Amended Complaints (Document No. 87, filed May 1, 2014), and Defendants’ Joint Reply in Support of Motion to Dismiss the Consolidated Amended Complaints (Document No. 93, filed June 2, 2014), IT IS ORDERED that, for the reasons stated in the accompanying Memorandum dated September 5, 2014), defendants’ Motion for Judicial Notice is DENIED and defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART as follows:
1. The Motion to Dismiss is GRANTED with respect to the end-payor plaintiffs’ claims against defendants under the following antitrust statutes: (1) the D.C. Antitrust Act, see D.C.Code §§ 28-4502 et seq.; (2) the Kansas Restraint of Trade Act, see Kansas Stat. Ann. §§ 50-101 et seq.; (3) Nebraska’s Junkin Act, see Neb. Code Ann. §§ 59-801 et seq.; (4) the New Mexico Antitrust Act, see N.M. Stat. Ann. §§ 57-1-1 et seq.; (5) North Dakota’s Uniform State Antitrust Act, see N.D. Cent. Code §§ 51-08.1-02 et seq.; and (6) the Utah Antitrust Act, see Utah Code Ann. §§ 76-10-911 et seq.;
2. The Motion to Dismiss is GRANTED with respect to the end-payor plaintiffs’ claims against defendants under the following consumer-protection statutes: (1) the Delaware Consumer Fraud Act, see 6 Del. C. § 2533 et seq.; (2) the District of Columbia Consumer Protection Procedures Act, see D.C.Code §§ 28-3901 et seq.; (3) the Minnesota Consumer Fraud Act, see Minn.Stat. §§ 325F.68 et seq., Minn.Stat. § 8.31 et seq.; (4) the Nebraska Consumer Protection Act, see Neb.Rev.
3. The Motion to Dismiss is GRANTED with respect to the end-payor plaintiffs’ unjust-enrichment claims brought under the laws of Alaska, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia, Georgia, Hawaii, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maryland, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, Washington, and the unspecified U.S. territories; and
4. The Motion to Dismiss is DENIÉD in all other respects.
Notes
. If the applicant certifies under paragraphs I or II, the FDA may approve the ANDA after its review of the application. See 21 U.S.C. § 355(j)(5)(B)(i). If the applicant certifies under paragraph III, the FDA will not approve the application until after the patent for the listed drug has expired. See id. § 355©(5)(B)(ii).
. As required on a motion to dismiss, the Court takes all plausible factual allegations contained in plaintiffs’ Complaints to be true.
. There is a discrepancy in the end-payor plaintiffs and direct-purchaser plaintiffs’ Complaints on this point. The direct-purchaser plaintiffs allege that "Kos sought and received seven patents to cover the formulation and method-of-use for Niaspan,” DP Compl. ¶ 61, while the end-payor plaintiff aver that "Kos sought and eventually received a series of [five] patents to cover the formulation and method-of-use for Niaspan," EP Compl. ¶ 54.
. See Grace Lillian Wang, Teva v. Eisai: What’s the Real “Controversy”?, 66 Food & Drug LJ. 631, 638 n. 46 (2011) ("Launching "at risk” means the generic manufacturer knows it may be liable for patent infringement but chooses to enter the market anyway. If a generic loses the infringement suit, a court may award treble damages for willful infringement.”).
. Sixteen of these lawsuits were filed in the U.S. District Court for the Eastern District of Pennsylvania and one lawsuit was filed in the U.S. District Court for the District of Rhode Island.
. U.S. District Judge William Young’s decision in In re Relafen Antitrust Litigation,
. The parties have not briefed, and thus the Court will not decide at this juncture, what filing date(s) applies. Furthermore, although defendants have attached to their Motion to Dismiss an appendix containing a chart with the limitations periods applicable to the endpayor plaintiffs’ various state-law claims, absent briefing on the applicable tolling and accrual rules, the Court declines to address the timeliness of the end-payor plaintiffs' state-law claims at this time on the ground that consideration of this issue would be premature.
. Moreover, the Court rejects plaintiffs' argument that they have satisfied this prong by alleging that the conspiracy was “self-concealing.” “Reasonable diligence ... remains a separate element for tolling even when there is a so-called 'self-concealing conspiracy,’ which only makes it unnecessary to show affirmative acts of concealment.” Quigley v. E. Bay Mgmt., Inc., No. 13-cv-3998,
. Defendants have moved for the Court to take judicial notice of various public filings in order to establish that plaintiffs were on notice of the facts underlying their causes of action well before plaintiffs filed suit. In light of the Court's conclusion that plaintiffs’ allegations are insufficient to plead fraudulent concealment with particularity, this part of defendants’ Motion for Judicial Notice is moot.
. Indeed, the Supreme Court in FTC v. Actavis recognized the value of a no-AG provision to a generic manufacturer. •— U.S. -,
. While declining to definitively rule on whether a no-AG provision can constitute' a reverse payment, two other U.S. district courts, both in this Circuit, have expressed skepticism of the argument that defendants advance in this case. See In re: Wellbutrin XL Antitrust Litig., No. 08-cv-2431, slip op. at 4 (E.D.Pa. Jan. 17, 2014) (stating that the "[t]he Court is not prepared at this point to accept [the] argument that only a large cash payment from the patentee to the generic is subject to antitrust sdrutiny under Actavis ”); In re Lipitor Antitrust Litig., MDL No. 2332,
. Transcript of Oral Argument Transcript at 10, F.T.C. v. Actavis,-U.S.-,
. That the three contracts must be read together is also consistent with the principle of contract law that "where separate writings are made as part of a single transaction relating to the same subject matter, they may be read together as one agreement.” Mannington Mills, Inc. v. Congoleum Indus., Inc.,
. One generic manufacturer, Watson, “agreed to promote branded AndroGel to urologists,” and another, Par, "agreed to promote it to primary care doctors.” FTC v. Watson Pharm., Inc.,
.Compare Marc G. Schildkraut, Patent-Splitting Settlement and the Reverse Payment Fallacy, 71 Antitrust L.J. 1033 (2004) (arguing that a probabilistic approach to assessing reverse-payment settlement agreements is inconsistent with traditional burdens of proof), with Alden F. Abbott & Suzanne T. Michel, The Right Balance of Competition Policy & Intellectual Property Law: A Perspective on Settlements of Pharmaceutical Patent Litigation, 46 IDEA 1, 27 (2005) ("Consumers are always better off with the possibility of competitive entry and lower prices than they are with the certainty of no entry.”); James F. Ponsoldt & W. Henen Ehrenclou, The Antitrust Legality of Pharmaceutical Patent Litigation Settlements, 2006 U. Ill. J.L. Tech. & Pol’y 37, 57 ("[T]he probability that consumers and retailers are deprived of the benefits of competition as a result of reverse payments should suffice as antitrust injury.”); Keith Leffler & Christopher Leffler, Efficiency Trade-Offs in Patent Settlements: Analysis Gone Astray, 39 U. of S. Fran. L.Rev. 33, 53 (2004) ("[I]t is anticompetitive for an incumbent manufacturer to enter into an agreement to eliminate potential competition based on the probability that the competition would in fact have occurred.”).
. See, e.g., Bulletin Displays, LLC v. Regency Outdoor Advertising, Inc.,
. See, e.g., N. Shore Gas Co. v. E.P.A.,
. Nor are direct factual allegations of Barr's chances of litigation success required; "inferential allegations” can suffice. Grp. Health Plan, Inc. v. Philip Morris USA, Inc.,
. Citing this principle, numerous courts, when faced with similar allegations of delayed generic entry, have refused to accept the argument that antitrust injury was inadequately pleaded. See, e.g., Rochester Drug Coop., Inc. v. Braintree Labs.,
. To the extent that plaintiffs are arguing that the Court should defer ruling on the issue of standing until class certification, the Court declines to do so. As numerous courts have commented, deferring this standing determination would "allow named plaintiffs in a proposed class action, with no injuries in relation to the laws of certain states referenced in their complaint, to embark on lengthy class discovery with respect to injuries in potentially every state'in the Union.” In re Magnesium Oxide Antitmst Litig., No. 10-cv-5943,
. In Illinois Brick Co. v. Illinois, the Supreme Court held that indirect purchasers are precluded from recovery under Section Four of the Clayton Act, citing, inter alia: (1) the desire to avoid “injecting extremely complex issues into the case,” (2) the need to prevent "diffusing the benefits of bringing a treble-damages action,” and (3) the goal of reducing the "uncertainty of how ... overcharge^] w[ill] be apportioned among the various plaintiffs.”
. Defendants also move to dismiss the endpayor plaintiffs' claim brought under South Dakota’s consumer-protection statute for failure to state a claim, however, as discussed supra, the Court already has concluded that the named end-payor plaintiffs do not have constitutional standing to bring any claims under South Dakota law.
. In defendants’ opening brief, they also cite a case for the proposition that Rhode Island’s Deceptive Trade Practices Act "does not apply to ‘all those activities and businesses which are subject to monitoring by state or federal regulatory bodies or officers.’ ” Mot. to Dismiss at 33 n. 21 (quoting State v. Piedmont Funding Corp.,
. The Court notes that there is authority for the proposition that an issue raised for the first time in a reply is deemed to be waived. See, e.g., United States v. Martin,
. Defendants also move to dismiss the endpayor plaintiffs’ Alaska, Arkansas, Idaho, Louisiana, Montana, North Dakota, Oklahoma, and Washington unjust-enrichment claims for failure to state a claim, however, as discussed supra, the Court already has concluded that the named end-payor plaintiffs do not have constitutional standing to bring any claims under laws of these states.
. With respect to these eight states, plaintiffs only cite two cases both of which are inapposite. In In re K-Dur Antitrust Litigation,
. The sole case cited by defendants in support of their position, see Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC,