# In re Nexium (Esomeprazole) Antitrust Litigation

> District Court, D. Massachusetts · September 4, 2014 · 42 F. Supp. 3d 231

URL: https://www.frixlaw.com/law-library/cases/7226305

## Case

- **Full name:** In re NEXIUM (ESOMEPRAZOLE) ANTITRUST LITIGATION
- **Court:** District Court, D. Massachusetts
- **Decided:** September 4, 2014
- **Citations:** 42 F. Supp. 3d 231; 2014 U.S. Dist. LEXIS 126954; 2014 WL 4370333
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Young
- **Judges:** Young
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7226305

## How later opinions describe it (automated extraction)

- finding the chain of causation broken because there was no evidence that the generic manufacturer could have received the necessary regulatory approvals
- noting that the material cause condition has been interpreted as a proximate cause requirement

## Opinion text

MEMORANDUM AND ORDER
YOUNG, District Judge.
I. INTRODUCTION
This case, arising under the federal antitrust laws and state analogues, presents a *240 challenge to the use of reverse payment settlements in patent litigation. Reverse payment settlements are agreements to settle patent infringement litigation under which the patent holder pays the claimed infringer handsomely to refrain from competing with the patent holder until the patent or patents in suit expire. The arrangement preserves the patent holder’s monopoly and the full term of its patents, while compensating the claimed infringer with at least some of the money it would have earned had it successfully challenged the patents. In a key ruling last year, the Supreme Court held that these kinds of “pay for delay” agreements can, under certain circumstances, violate the federal antitrust laws. Federal Trade Comm’n v. Actavis, Inc., — U.S. -, 133 S.Ct. 2223, 2227 , 186 L.Ed.2d 343 (2013). The case at bar, now a multidistrict class action, asks this Court to put the Supreme Court’s holding into practice.
This action is brought by a class of wholesale drug distributors (the “Direct Purchasers”), a class of individual consumers, third-party payors, union plan sponsors, and certain insurance companies (the “End-Payors”) (collectively, with the Direct Purchasers, the “Class Plaintiffs”), and a number of pharmaceutical retail outlets: Eckerd Corporation, Giant Eagle, Inc., HEB Grocery Company L.P., JCG (PJC) USA, LLC, The Kroger Co., Maxi Drug, Inc. d/b/a Brooks Pharmacy, Rite Aid Corporation, Rite Aid Headquarters Corp., Safeway Inc., Supervalu, Inc., and Walgreen Co. (collectively, the “Retailer Plaintiffs”) (collectively, with the Direct Purchasers and the End-Payors, the “Plaintiffs”). The Plaintiffs have brought claims for alleged violations of federal and state antitrust laws involving the heartburn medication, Nexium, referred to in its generic form as esomeprazole magnesium, against AstraZeneca AB, Aktiebolaget Hasslé, and AstraZeneca LP (collectively, “AstraZeneca”), Ranbaxy Pharmaceuticals, Inc., Ranbaxy Inc., and Ranbaxy Laboratories, Ltd. (collectively, “Ranbaxy”), Teva Pharmaceutical Industries, Ltd. and Teva Pharmaceuticals USA, Inc. (collectively, “Teva”), and Dr. Reddy’s Laboratories Ltd. and Dr. Reddy’s Laboratories, Inc. (collectively, “DRL”) (collectively, with Ranbaxy and Teva, the “Generic Defendants”) (collectively, with AstraZeneca, the “Defendants”).
Beginning in December 2013, the Defendants filed a plethora of motions for summary judgment which the Court decided in January and February of this year. As promised in those summary orders- — -and as urged by Fed.R.Civ.P. 56(a), see Securities Exch. Comm’n v. EagleEye Asset Mgmt., LLC, 975 F.Supp.2d 151 (D.Mass.2013) — the Court- now sets out in full the reasoning for its rulings.
A. Procedural Posture
This case has had an extensive and tortuous procedural history. Out of necessity, the developments and filings in this case will be reviewed here with a primary focus on the motions for summary judgment being addressed in this opinion.
1. Initial Proceedings and Class Certification
On December 7, 2012, six actions pending in the District of Massachusetts, the District of New Jersey, and the Eastern District of Pennsylvania were consolidated into the present multidistrict litigation and assigned to this Court, pursuant to 28 U.S.C. § 1407 . See Elec. Notice, Dec. 7, 2012, ECF No.- 1; Transfer Order, MDL No. 2409, ECF No. 2. Representatives for the End-Payors filed a consolidated complaint on February 1, 2013, Corrected Con-sol. Am. Class Action Compl. & Demand Jury Trial (“End-Payors’ Compl.”), ECF No. 114, and representatives for the Direct *241 Purchasers filed their consolidated complaint on February 21, 2013, Consol. Am. Compl. & Demand Jury Trial (“Direct Purchasers’ Compl.”), ECF No. 131. The Defendants filed a number of motions to dismiss these complaints, and the Court” denied all of them at a motion hearing held on April 18, 2013. See Elec. Clerk’s Notes, Apr. 18, 2013, ECF No. 218; see also In re Nexium (Esomeprazole) Antitrust Litig., 968 F.Supp.2d 367 (D.Mass.2013).
Several months later, the Court granted two motions certifying an End-Payor damages class, 1 Mem. & Order, Nov. 14, 2013, ECF No. 519, and a Direct Purchaser class, Mem. & Order, Dec. 11, 2013, ECF No. 660. During this time, the Retailer Plaintiffs individually entered this litigation when they collectively filed three amended complaints against the Defendants on November 14, 2013. See Am. Compl. & Demand Jury Trial (“Walgreen Compl.”), ECF No. 515; Am. Compl. & Demand Jury Trial (“Rite Aid Compl.”), ECF No. 516; Am. Compl. & Demand Jury Trial (“Giant Eagle Compl.”), ECF No. 517.
2. Motions for Summary Judgment
On December 10, 2013, the Defendants collectively filed eleven motions for summary judgment. See DRL’s Mot. Summ. J. All Claims, ECF No. 594; Teva Defs.’ Mot. Summ. J. Based Absence Reverse Payment Teva, ECF No. 600; Teva Defs.’ Mot. Summ. J. Based Lack Causation, ECF No. 606; Def. Ranbaxy’s Mot. Summ. J. Lack Causation, ECF No. 641; AstraZeneca & Ranbaxy Defs.’ Mot. Summ. J. All Claims Arising AstraZeneca’s Settlement Agreement Ranbaxy, ECF No. 642; AstraZeneca Defs.’ Mot. "Summ. J. All Claims Arising AstraZeneca’s Settlements Teva & DRL, ECF No. 644; AstraZeneca Defs.’ Mot. Summ. J. Basis Causation, ECF No. 645; AstraZeneca, Ranbaxy, & Teva Defs.’ Mot. Partial Summ. J. Overarching Conspiracy, ECF No. 647; AstraZeneca Defs.’ Mot. Summ. J. Direct Purchaser Pis. Lack Actual Injury & Exclude Direct Purchaser Pis.’ Experts’ Damages Opinions, ECF No. 648; AstraZeneca Defs.’ Mot. Partial Summ. J. Basis Statute Limitations, ECF No. 649; AstraZeneca Defs.’ Mot. Summ. J. Barring Assigned Claims, ECF No. 650.
The Plaintiffs’ responses came on January 9, 2014. See Direct Purchaser Class Pis.’ Opp’n AstraZeneca Defs.’ Mots. Summ. J. Direct Purchaser Pis.’ & Associated Daubert Mot. Relating “Actual Injury” (ECF No. 648), ECF No. 735; Direct Purchaser Class Pis.’ Opp’n AstraZeneca Defs.’ Mot. Summ. J. Barring Non-Class Direct Purchasers’ Assigned Claims (Dkt. 650), ECF No. 738; Retailer Pis.’ Mem. Opp’n AstraZeneca’s, Ranbaxy’s, & Teva’s Mot. Partial Summ. J. Pis.’ Overall Conspiracy Claim, ECF No. 746; Retailer Pis.’ Mem. Opp’n AstraZeneca & Ranbaxy’s Mot. Summ. J., ECF No. 747; Retailer Pis.’ Mem. Opp’n Teva’s Mot. Summ. J., ECF No. 748; Retailer Pis.’ Mem. Opp’n Dr. Reddy’s’ Mot. Summ. J., ECF No. 749; Retailer Pis.’ Mem. Opp’n AstraZeneca’s Mot. Summ. J. Respect Teva & Dr. Reddy’s Settlements, ECF No. 750; Opp’n Retailer Pis. AstraZeneca’s Mot. Summ. J. Barring Assigned Claims, ECF No. 753; Opp’n Retailer Pis. AstraZeneca’s Mot. Summ. J. Direct Purchaser Pis. Lack Actual Injury & Exclude Direct Purchaser Pis.’ Expert Damages Opinions, ECF No. 761; Retailer Pis.’ Mem. Opp’n Teva’s Mot. Summ. J. Based Lack Causation, ECF No. 762; Retailer Pis.’ Opp’n AstraZeneca Defs.’ Mot. Summ. J. Statute Limi *242 tations, ECF No. 765; Direct Purchaser & End-Payor Class Pis.’ Mem. Opp’n Teva Defs.’ Mot. Summ. J. Based Absence Reverse Payment (ECF No. 600), ECF No. 770; Direct Purchaser & End-Payor Class Pis.’ Opp’n AstraZeneca’s Mot. Summ. J. All Claims Arising AstraZeneca’s Settlements Teva & DRL (ECF No. 644), ECF No. 771; Direct Purchaser & End-Payor Class Pis.’ Opp’n DRL’s Mot. Summ. J. (ECF No. 594), ECF No. 772; Retailer Pis.’ Mem. Opp’n Ranbaxy’s Mot. Summ. J. Based Causation, ECF No. 773; Direct Purchaser & End-Payor Class Pis.’ Opp’n AstraZeneca & Ranbaxy Defs.’ Mot. Summ. J. All Claims Arising AstraZeneca’s Settlement Agreement Ranbaxy, ECF No. 779; Retailer Pis.’ Mem. Opp’n AstraZeneca Defs.’ Mot. Summ. J. Basis Causation, ECF No. 781; Direct Purchaser & End-Payor Class Pis.’ Opp’n AstraZeneca, Ranbaxy & Teva Defs.’ Mot. Partial Summ. J. Overarching Conspiracy (ECF No. 647) & Portion DRL’s Mot. Summ. J. (ECF No. 594), ECF No. 784; Direct Purchaser & End-Payor Class Pis.’ Opp’n [606] Teva’s Mot. Summ. J. Based Lack , Causation, ECF No. 789; Direct Purchaser & End-Payor Class Pis.’ Opp’n AstraZeneca’s Mot. Summ. J. Causation, ECF No. 790; Direct Purchaser Class & End Payor Class Pis.’ Opp’n Ranbaxy’s Mot. Summ. J. Due Lack Causation, ECF No. 791.
On January 13, 2014, the Court denied AstraZeneca’s ECF No. 648 motion seeking summary judgment against the Direct Purchasers and Retailer Plaintiffs for lack of actual injury and seeking exclusion of testimony from two experts. Elec. Order, Jan. 13, 2014, ECF No. 801. The Court also denied AstraZeneca’s ECF No. 649 motion for partial summary judgment seeking to bar the Retailer Plaintiffs on the basis of statute of limitations. Elec. Order, Jan. 13, 2014, ECF No. 802.
Shortly thereafter, on January 16 and 17, 2014, the Defendants filed replies in further support of their surviving motions. See Teva Defs.’ Reply Supp. Mot. Summ. J. [ECF No. 600] Based Absence Reverse "Payment Teva, ECF No. 814; Teva Defs.’ Reply Supp. Mot. [ECF No. 606] Summ. J. Based Lack Causation, ECF No. 815; Reply Supp. AstraZeneca, Ranbaxy, & Teva Defs.’ Mot. Partial Summ. J. Overarching Conspiracy, ECF No. 816; Reply Mem. Supp. AstraZeneca Defs.’ Mot. Summ. J. All Claims Arising AstraZeneca’s Settlements Teva & DRL, ECF No. 817; AstraZeneca’s Reply Mem. Further Supp. Mot. Summ. J. Barring Assigned Claims [Docket No. 650], ECF No. 818; Reply Mem. Supp. DRL’s Mot. Summ. J., ECF No. 819; Reply Mem. Supp. AstraZeneca & Ranbaxy Defs.’ Mot. Summ. J. All Claims Arising AstraZeneca’s Settlement Agreement Ranbaxy, ECF No. 820; Reply Mem. Supp. AstraZeneca Defs.’ Mot. Summ. J. Basis Causation, ECF No. 821; Def. Ranbaxy’s Reply Supp. Mot. Summ. J. Due Lack Causation, ECF No. 823.
The Court heard oral argument on five of the Defendants’ motions on January 21, 2014. Elec. Clerk’s Notes, Jan. 21, 2014, ECF No. 846. The five motions argued were: (1) DRL’s ECF No. 594 motion seeking summary judgment on all claims’, (2) Teva’s ECF No. 600 motion seeking summary judgment because of the purported absence of a reverse payment made to Teva, (3) Ranbaxy’s ECF No. 641 motion seeking summary judgment due to a purported lack of causation, (4) AstraZeneca’s ECF No. 642 motion seeking summary judgment on claims arising from its settlement with Ranbaxy, and (5) AstraZeneca, Ranbaxy, and Teva’s ECF No. 647 motion seeking partial summary judgment on the issue of overall conspiracy. Id. At that hearing, the Court denied from the bench the final of these five motions, regarding the existence of an overall conspir *243 acy, and took all remaining motions under advisement. Id.
.On February 12, 2014, the Court issued an order laying out its rulings on all eleven motions for summary judgment. See Order, Feb. 12, 2014, ECF No. 857. In light of the aggregate effect of these rulings on the Plaintiffs’ claims, the Court administratively closed this case until the publication of this written opinion explaining its reasoning. Id.
3. Motions for Reconsideration
The case was reopened, however, upon the filing of a number of motions for reconsideration on February 28, 2014. See Pis.’ Mot. Rule 6(b)(1)(B) & (2) Reconsideration Teva’s Mot. Summ. J. Based Absence Reverse Payment Teva (ECF No. 600) & AstraZeneca’s Mot. Summ. J. All Claims Arising AstraZeneca’s Settlements Teva & DRL (ECF No. 644); & Pis.’ Opp’n Teva’s Supplemental Br. Based New McGuire Report (ECF No. 855), ECF No. 864; Pis.’ Mot. Reconsideration AstraZeneca’s & Ranbaxy’s Mots. Summ. J. Due Lack Causation (ECF # 641, 645) Based New Evidence, ECF No. 867; Direct Purchaser Pis.’ Mot. Reconsideration AstraZeneca’s & Ranbaxy’s Mots. Summ. J. Due Lack Causation (ECF # 641, 645) Based Payment-Free Settlement, ECF No. 870; End-Payor Pis.’ Joinder Direct Purchaser Pis.’ Mot. Reconsideration AstraZeneca’s & Ranbaxy’s Mots. Summ. J. Due Lack Causation, ECF No. 872.
The Court entered an order on March 7, 2014, denying all but two of the motions for reconsideration and scheduling oral argument on (1) the Plaintiffs’ ECF No. 864 motion to reconsider the Court’s grant of summary judgment to Teva based on the absence of a reverse payment and the Court’s grant of summary judgment to AstraZeneca on claims arising from its settlements with Teva and DRL, and (2) the Plaintiffs’ ECF No. 867 motion to reconsider the Court’s grant of summary judgment to AstraZeneca and Ranbaxy due to a lack of causation. Order, Mar. 7, 2014, ECF No. 874.
Oppositions to the two surviving motions for reconsideration followed on March 20, 2014. See Teva’s Opp’n Pis.’ Mot. Reconsideration Court’s Grant Summ. J. Based Absence Reverse Payment Teva, ECF No. 877; AstraZeneca’s Opp’n Pis.’ Mot. Reconsideration AstraZeneca & Ranbaxy’s Mots. Summ. J. Due Lack Causation (ECF # 641, 645) Based New Evidence, ECF No. 879; AstraZeneca’s Opp’n Pis.’ Mot. Reconsideration AstraZeneca & Ranbaxy’s Mots. Summ. J. Due Lack Causation (ECF # 641, 645) Based New Evidence, ECF No. 881; Ranbaxy’s Opp’n Pis.’ Mot. Reconsideration AstraZeneca’s & Ranbaxy’s Mots. Summ. J. Due Lack Causation Based New Evidence, ECF.No. 882. The Plaintiffs filed reply briefs in further support of their motions for reconsideration on March 27, 2014. Pis.’ Reply Ranbaxy’s Opp’n Pis.’ Mot. Reconsideration AstraZeneca’s & Ranbaxy’s Mots. Summ. J. Due Lack Causation Based New Evidence, ECF No. 889; Pis.’ Reply AstraZeneca’s Opp’n Pis.’ Mot. Reconsideration AstraZeneca’s & Ranbaxy’s Mots. Summ. J. Due Lack Causation Based New Evidence, ECF No. 890.
On March 4, 2014, the Court heard oral argument on the two motions for reconsideration and took them under advisement. Elec. Clerk’s Notes, Apr. 4, 2014, ECF No. 896. At an interim pretrial conference held on April 16, 2014, the Court announced its rulings (1) granting the Plaintiffs’ ECF No. 864 motion for reconsideration of summary judgment regarding the absence of a reverse payment to Teva, (2) granting in part the Plaintiffs’ ECF No. 864 motion for reconsideration of AstraZeneca’s motion for summary judgment on claims arising from its settlements with *244 Teva and DRL, with the Court’s reconsideration being limited to AstraZeneca’s settlement with Teva, and (3) denying the Plaintiffs’ ECF No. 867 motion for reconsideration of summary judgment to AstraZeneca and Ranbaxy for lack of causation. See Elec. Clerk’s Notes, Apr. 16, 2014, ECF No. 902; Elec. Endorsement, June 4, 2014, ECF No. 940. Accordingly, the case was reopened and set for trial in October 2014, with a final pretrial conference set to take place in September 2014. Elec. Clerk’s Notes, Apr. 16, 2014; see also Case Reopened, Apr. 17, 2014, ECF No. 903.
A final flurry of activity relating to the issue of overarching conspiracy has occurred since the case reopened. On April 22, 2014, DRL filed a motion for reconsideration of the Court’s denial of summary judgment as to overarching conspiracy. DRL’s Mot. Reconsideration, ECF No. 905. The Plaintiffs opposed on May 6, 2014. Pis. Mem. Opp’n DRL’s Mot. Reconsideration (ECF 905), ECF No. 914. The Court denied DRL’s motion on May 9, 2014. Elec. Order, May 9, 2014, ECF No. 916. The Defendants have most recently filed supplemental authority for their argument that the overarching conspiracy claims must fail: a recently published opinion by Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania on issues similar to those before this Court. See King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civil Action Nos. 2:06-cv-1797, 2:06-cv-1833, 2:06-cv-2768, 2014 WL 2813312 (E.D.Pa. June 23, 2014); see also Defs.’ Submission Supplemental Authority Relating Pis.’ Overarching Conspiracy Claims, ECF No. 955. The Plaintiffs’ response was filed on July 2, 2014. Direct Purchaser Class Pis.’ Response Defs.’ Submission Supp. Authority Relating Pis.’' Overarching Conspiracy Claims, ECF No. 960.
B. Regulatory and Factual Background
In addition to having a complicated procedural history, this case implicates a large and complex body of facts. Although some of this background has been laid out in the Court’s opinion dealing with the Defendants’ prior motions to dismiss, see In re Nexium, 968 F.Supp.2d at 376-78 , further review of the regulatory and factual background is required here. Where appropriate, additional facts pertinent to the Court’s analysis will be set out within the relevant sections.
1. Regulatory Framework
When a pharmaceutical manufacturer seeks to introduce a new brand-name prescription drug to the U.S. market, it must file a New Drug Application with the United States Food and Drug Administration (“FDA”) and undergo a long and expensive review process to gain agency approval. See Actavis, 133 S.Ct. at 2228 ; see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, — U.S. -, 132 S.Ct. 1670, 1676 , 182 L.Ed.2d 678 (2012). When a generic pharmaceutical manufacturer seeks to market a generic version of a brand-name drug, the approval process is considerably less burdensome. The Drug Price Competition and Patent Term Restoration (Hatch-Waxman) Act of 1984, 21 U.S.C. § 355 , “was passed with the express purpose of expediting the entry of noninfringing generic competitors into pharmaceutical drug markets in order to decrease healthcare costs for consumers.” In re Nexium, 968 F.Supp.2d at 378 .
To launch a generic version of a brand-name drug, a pharmaceutical manufacturer is required to file an Abbreviated New Drug Application (“ANDA”) showing that the proposed generic product is suitably equivalent to the targeted brand drug. See 21 U.S.C. § 355 (j)(2)(A)(ii)-(iv). The *245 Hateh-Waxman Act encourages generic competition by rewarding the manufacturer that is first to file an ANDA for a brand drug. A first filer has the right, once final FDA approval is secured, to enter the generic market first and exclusively market its product for 180 days, during which time the FDA will not grant final approval to any other generic manufacturer’s version of the drug. See 21 U.S.C. § 355 (j)(5)(B)(iv). The potential rewards of being a first filer are considerable. See Ralph B. Kalfayan & Vic A. Merjanian, Ensuring Access to Affordable Medication: The Supreme Court’s Opinion in F.T.C. v. Actavis, Inc., 22 Competition 120, 121 (2013) (“This 180-day exclusivity period provides a potentially powerful incentive to become the first manufacturer to file an ANDA — by some estimates, millions and perhaps billions in profits.”).
Any manufacturer seeking ANDA approval, however, must “assure the FDA that its proposed generic product will not infringe” any patents related to the targeted brand drug. Novo Nordisk, 132 S.Ct. at 1676 . This ostensibly is straightforward if there are no patents related to the targeted brand drug, or if those patents have or will be expired. See 21 U.S.C. § 355 (j)(2)(A)(vii)(I-III). But the HatchWaxman Act also sets out a process by which a manufacturer can obtain approval to market the generic version of a brand drug before the brand drug’s underlying patents have expired. See id. § 355(j)(2)(A)(vii)(IV). To do so, a generic manufacturer’s ANDA must make so-called “Paragraph IV” certifications, which assert that all active patents related to the targeted brand drug are “invalid, unenforceable, or will not be infringed by the manufacture, use, or sale” of the applicant’s generic product. 21 C.F.R. § 314.94 (a)(12)(i)(A)(4).
Paragraph IV certifications usually provoke the patent-holding brand manufacturer to sue the generic ANDA filer for patent infringement. See Novo Nordisk, 132 S.Ct. at 1677 (noting that “[t]he patent statute treats [a Paragraph IV] filing as itself an act of infringement, which gives the brand [manufacturer] an immediate right to sue” (citing 35 U.S.C. § 271 (e)(2)(A))). When such a lawsuit is timely filed, it triggers a 30-month stay of the generic manufacturer defendant’s ANDA, during which time it cannot receive final FDA approval of its product. See 21 U.S.C. § 355 (j)(5)(B)(iii).
At the end of the 30-month stay, however, the FDA may approve an ANDA even if final judgment or settlement has not been reached in the related patent lawsuit. Cf. id. If this happens, the generic manufacturer may choose to launch its generic product “at risk” — that is, with the risk of losing the infringement case against it hanging over its head. Losing an infringement case after launching at risk can result in significant liability for the generic manufacturer, as damages typically are calibrated by the amount of its at-risk sales. See 35 U.S.C. § 271 (e)(4)(C) (providing that damages may be awarded “only if there has been commercial manufacture, use, offer to sell, or sale within the United States or importation into the United States of an approved drug”); 35 U.S.C. § 284 (providing for “damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer”); see also, e.g., AstraZeneca AB v. Apotex Corp., 985 F.Supp.2d 452 (S.D.N.Y.2013) (awarding AstraZeneca more than $76,000,000 in damages for a generic manufacturer’s at-risk sales of a product infringing AstraZeneca’s patents).
Alternately, as is the case in all civil litigation, the brand manufacturer and ge *246 neric manufacturer may settle their patent infringement case before final judgment or even final FDA approval is rendered. Such a settlement can have consequences for the entire generic market, particularly when the settling generic manufacturer is the first filer and agrees to delay its generic launch. Because no other manufacturer may launch a product until 180 days after the first filer has done so, a first filer’s delay effectively delays all of its competitors’ entries, creating a bottleneck in the market that postpones the date on which any generic product will become available.
To ameliorate the risk of bottleneck, the Hatch-Waxman Act contains provisions directed to triggering the start of a first filer’s 180-day exclusivity period, and to forfeiture of the privilege entirely. Generally, the exclusivity period is triggered “either on the date that the first ... filer begins marketing its generic drug, or on the date of a final court decision finding the relevant ... patents invalid or not infringed, whichever comes first.” Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278, 1283 (Fed.Cir.2008) (citing 21 U.S.C. § 355 (j)(5)(B)(iv)). In 2003, however, Congress enacted the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (“MMA”), Pub.L. No. 108-173, 117 Stat.2066, which amended the Hatch-Waxman Act to create several ways for a first filer to forfeit its marketing exclusivity period. See 21 U.S.C. § 355 (j)(5)(D); see also Forest Labs., 527 F.3d at 1283 n. 2.
Under the post-MMA regime, the first filers of ANDAs submitted after December 2003 lose their exclusivity privilege if they do not timely come to market after the occurrence of certain forfeiture events. Forest Labs., 527 F.3d at 1283 n. 2. One is particularly relevant to the facts of this case. The exclusivity privilege can be forfeited if the first filer does not come to market within 75 days of a final, nonappealable court judgment ruling that the first filer’s product does not infringe any of the targeted brand drug’s patents. Id. § 355(j)(5)(D)(i)(I)(bb). Moreover, “a ‘court decision’ for purposes of triggering the exclusivity period ... is not limited to actions involving the first ANDA filer.” Minnesota Mining & Mfg. Co. v. Barr Labs., Inc., 289 F.3d 775, 785 (Fed.Cir.2002) (concurring with FDA policy and Teva Pharm. v. Food & Drug Admin., 182 F.3d 1003, 1009 (D.C.Cir.1999)). It is not uncommon for generic manufacturers who submitted ANDAs after the first filer to seek declaratory judgment that the specific patents challenged in' the lawsuit against the first filer are invalid or not infringed by the first filer’s product. See generally id. at 789-92. For the second (or third or subsequent) filer, winning a declaratory judgment as to the first filer means triggering or causing the forfeiture of the first filer’s exclusivity period, moving up the date on which subsequent filers can in turn enter the market. This is one way subsequent filers can break a bottleneck formed by a first filer’s agreement to delay its market entry.
2. Undisputed Factual Background
Nexium is the brand name of a proton pump inhibitor which contains esomeprazole magnesium as its active ingredient and which is prescribed to treat heartburn. 2 In re Nexium, 968 F.Supp.2d at 375, 380 . In 2001, the FDA approved a New Drug Application granting exclusive rights to market branded Nexium to the pharmaceutical manufacturer AstraZene *247 ca, then the holder of fourteen active patents related to the drug. Id. at 380 . Four years later, the generic drug manufacturer Ranbaxy was the first to file an ANDA, containing Paragraph IV certifications, to market a generic version of Nexium. Id. AstraZeneca responded to this development by filing a patent infringement lawsuit against Ranbaxy in the District of New Jersey, contending that Ranbaxy’s version of generic Nexium would infringe several of AstraZeneca’s patents. Id. In the following months, generic manufacturers Teva and DRL each filed Paragraph IV ANDAs seeking to market generic Nexium, and AstraZeneca responded again by suing each of them for patent infringement in the United States District Court for the District of New Jersey. Id. at 381 . All three cases were drawn to Judge Joel A. Pisano. DRL’s Statement Undisputed Facts Regarding Mot. Summ. J. ¶¶ 70-71, ECF No. 673.
Before judgment entered in any of these cases, AstraZeneca entered into settlement agreements with each generic manufacturer which ended all three lawsuits and suspended the entry of generic Nexium into the market. First, on April 14, 2008, AstraZeneca agreed to drop its lawsuit against Ranbaxy in exchange for Ranbaxy’s agreement (1) to admit that certain of AstraZeneca’s Nexium-related patents were enforceable and valid, (2) to admit that Ranbaxy’s generic Nexium would infringe these patents, and (3) to delay launching a generic version of Nexium until May 27, 2014. Id. at 381-82 ; see Decl. James H. Weingarten, Esq. Supp. Mots. Summ. J. (“Weingarten Decl.”), Settlement Agreement (“Ranbaxy Agreement”) 1, ECF No. 676-1. Ranbaxy allegedly also received consideration for the agreement in the form of lucrative manufacturing and distribution agreements and prospective future revenue under an exclusive marketing privilege. In re Nexium, 968 F.Supp.2d at 382 .
Ranbaxy’s agreement created a bottleneck in the generic Nexium market until May 27, 2014. Id. Teva and DRL each attempted to break that bottleneck by filing declaratory judgment actions seeking a ruling that Ranbaxy’s generic product did not infringe any Nexium patents, but ultimately both Teva and DRL settled their lawsuits with AstraZeneca as well. Id. at 382-83 . On January 7, 2010, Teva agreed to make similar admissions as Ranbaxy had regarding AstraZeneca’s patents and to delay its entry into the generic Nexium market until May 27, 2014. Id. at 383 ; see Weingarten Decl., Settlement Agreement (“Teva Agreement”) 1, ECF No. 676-2. In exchange, AstraZeneca agreed to drop its lawsuit. In re Nexium, 968 F.Supp.2d at 383 . On the same day, AstraZeneca also agreed to settle a contingent liability owed by Teva to AstraZeneca in connection with Teva’s prior at-risk sales of a generic drug infringing on AstraZeneca’s brand drug, Prilosec. Id. The following year, on January 28, 2011, AstraZeneca concluded a similar agreement with DRL, under the terms of which DRL agreed to refrain from challenging AstraZeneca’s Nexium patents and to defer entering the generic Nexium market until May 27, 2014. Id. at 384 ; see Weingarten Decl.,' Settlement Agreement (“DRL Agreement”) 1, ECF No. 676-3. In exchange, AstraZeneca dropped its litigation and on the same day, agreed to drop its appeal of a lawsuit arising from DRL’s sales of a generic version of another AstraZeneca drug, Accolate. In re Nexium, 968 F.Supp.2d at 384 .
II. STANDARD OF REVIEW
All of the motions before the Court in this opinion are ones for summary judgment, and the same familiar standard con *248 trols them all. Summary judgment is proper when, based on the materials in the record, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). Whether a fact is material or not depends on the substantive law of the case, and only factual disputes that might affect the outcome of the suit can properly preclude summary judgment. Id. When deciding a motion for summary judgment, the Court views the record “in the light most favorable to the non-moving party” and draws all reasonable inferences in favor of the respondent. Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir.2008).
Save as to facts admitted by both parties, the Court must disregard all evidence upon which the moving party bears the burden of proof. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000). Moreover, the moving party bears the initial burden of production, and then the nonmoving party who bears the ultimate burden of proof must provide some evidence in favor of its case. That evidence must be admissible at trial, and “[pjroof based on arrant speculation, optimistic surmise or farfetched inference will not suffice.” Kelly v. United States, 924 F.2d 355, 357 (1st Cir.1991). Nor can the evidence be “merely colorable.” Anderson, 477 U.S. at 249-50 , 106 S.Ct. 2505 .
Finally, though the Court properly may consider expert testimony at the summary judgment stage, “expert testimony without ... a factual foundation cannot defeat a motion for summary judgment.” Virgin Atl. Airways Ltd. v. British Airways PLC, 69 F.Supp.2d 571, 579 (S.D.N.Y.1999) (quoting Advo, Inc. v. Phila. Newspapers, Inc., 51 F.3d 1191, 1198 (3d Cir.1995) (alteration in original)); see also Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 , 113 S.Ct. 2578 , 125 L.Ed.2d 168 (1993) (holding that an expert opinion cannot support a jury verdict when it “is not supported by sufficient facts to validate it in the eyes of the law, or where indisputable record facts contradict or otherwise render the opinion unreasonable”). Similarly, summary judgment must be granted if the opposition thereto “rest[s] solely on an expert’s ‘bottom line’ conclusion, without some underlying facts and reasons, or a logical inference process to support the expert’s opinion.” Sullivan v. Nat’l Football League, 34 F.3d 1091, 1105 (1st Cir.1994).
III. MOTIONS FOR SUMMARY JUDGMENT AS TO OVERARCHING CONSPIRACY [ECF Nos. 594, 647, 905]
The Court begins its analysis by focusing on the issue which most broadly affects all of the Defendants. The Defendants sought partial summary judgment last December on the issue of whether an overarching antitrust conspiracy exists among them. See DRL’s Mot. Summ. J. All Claims, ECF No. 594; AstraZeneca, Ranbaxy, & Teva Defs.’ Mot. Partial Summ. J. Overarching Conspiracy, ECF No. 647. According to the Plaintiffs, the three bilateral settlement agreements made between AstraZeneca and each of the Generic Defendants not only constitute separate illegal reverse payment agreements, but they also effect a single overarching conspiracy illegally to restrain trade in the market for generic Nexium. This would mean that the antitrust liability of just one Defendant is attributable to all of its co-Defendants as *249 co-conspirators. If no such conspiracy can be reasonably inferred from the evidence, however, the Defendants are no longer yoked together by the Plaintiffs’ claims, leaving them more flexibility to litigate the antitrust issues in this case on facts specific to each individual Defendant. For the reasons set out below, the Court ruled that the Plaintiffs have met their burden of establishing a reasonable inference of overarching conspiracy. Order, Feb. 12, 2014, ¶ 3, ECF No. 857.
A. Undisputed Facts Germane to These Motions
As has been reviewed, AstraZeneca was the plaintiff in three Nexium-related patent infringement lawsuits against Ranbaxy, Teva, and DRL. See AstraZeneca, Ranbaxy, & Teva Defs.’ Statement Undisputed Facts Relating Mot. Partial Summ. J. Overarching Conspiracy (“Defs.’ Conspiracy SOF”) ¶¶1, 2, 9, ECF No. 687; DRL’s Statement Undisputed Facts Regarding Motion Summ. J. (“DRL’s Conspiracy SOF”) ¶52, ECF No. 673. AstraZeneca ultimately settled all three lawsuits over the course of three years: Ranbaxy settled on April 14, 2008, Defs.’ Conspiracy SOF ¶ 6, Teva settled on January 6, 2010, id. ¶ 22, and DRL settled on January 18, 2011, id. ¶ 26. See Ranbaxy Agreement 1; Teva Agreement 1; DRL Agreement 1.
Several elements were common to all three agreements. Each Generic Defendant, for example, acknowledged the validity of and agreed to refrain from challenging AstraZeneca’s patents related to Nexium. See Ranbaxy Agreement ¶¶ 4.1-4.2; Teva Agreement ¶¶ 4.1 — 4.2; DRL Agreement ¶¶ 4.1-4.2. Each Generic Defendant also agreed to delay launching generic Nexium in the United States until a certain agreed-upon entry date. See Ranbaxy Agreement ¶ 6.1; Teva Agreement ¶ 6.1; DRL Agreement ¶ 6.1. Each agreement defined that entry date in nearly identical contingent terms, as
the earliest of: (a) May 27, 2014; (b) the date on which a Third Party launches a Generic Esomeprazole product in the United States following a final court decision from which no appeal has been or can be taken holding that all claims of the AstraZeneca Patents asserted in that litigation are invalid, unenforceable, or not infringed by the Generic Esomeprazole product at issue in that litigation; or (c) the date prior to May 27, 2014 on which any Third Party is authorized, under a license granted by AstraZeneca ... to commence manufacturing, using, selling, offering to sell, importing- or distributing Generic Esomeprazole in and for the United States pursuant to an ANDA or application pursuant to 21 U.S.C. § 355 (b)(2).
Ranbaxy Agreement ¶ 5.2; see also Teva Agreement ¶ 5.2 (containing substantially similar language); DRL Agreement ¶ 5.2 (containing substantially similar language). The effect of this contingent launch provision was to commit each signing Generic Defendant to refrain from launching generic Nexium until May 27, 2014, unless another generic manufacturer found a way to legally enter the market on an earlier date.
Although the terms of these agreements were all publicized shortly after their signing, there is no evidence that any of the Generic Defendants communicated with each other, directly or indirectly, when brokering their own agreements with AstraZeneca.
B. Legal Standard: Antitrust Conspiracy
To prevail on a conspiracy claim under Section 1 of the Sherman Act, 15 U.S.C. § 1 , the Plaintiffs must prove the *250 existence of a single agreement, tacit or express, in restraint of trade. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007); White v. R.M. Packer Co., Inc., 635 F.3d 571, 575 (1st Cir.2011). Independent decisions by individual firms, even if they constitute parallel business behavior and “lead to the same anticompetitive result as an actual agreement among market actors,” are not prohibited by the federal antitrust laws. White, 635 F.3d at 575 ; see also Twombly, 550 U.S. at 553 , 127 S.Ct. 1955 .
To that end, the Supreme Court has ruled that the phenomenon of conscious parallelism is not per se illegal. See Brooke Grp., Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 , 113 S.Ct. 2578 , 125 L.Ed.2d 168 (1993); Conscious parallelism occurs when “firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by recognizing their shared interests and their interdependence with respect to price and output decisions.” Id. “Each producer may independently decide that it can maximize its profits by matching one or more other producers’ price, on the hope that the market will be able to maintain high prices if the producers do not undercut one another.” White, 635 F.3d at 576 .
Gas stations in a geographically isolated region, for example, are likely to engage in parallel supracompetitive pricing behavior because each gas station understands that matching the highest price in the region encourages prices to stay uniformly high without hurting demand, and that all local competitors are likely to independently reach the same conclusion. See id. at 581-82 (ruling that evidence of such «parallel pricing among gas stations on Martha’s Vineyard did not support any inference beyond conscious parallelism). “One does not need an agreement to bring about this kind of follow-the-leader effect in a concentrated industry.” Clamp-All Corp. v. Cast Iron Soil Pipe Inst., 851 F.2d 478, 484 (1st Cir.1988) (citing 6 P. Areeda & D. Turner, Antitrust Law ¶¶ 1432-33 (1978)). In contrast, a tacit agreement to conspire may be characterized by “uniform behavior among competitors, preceded by conversations implying that later uniformity might prove desirable or accompanied by other conduct that in context suggests that each competitor failed to make an independent decision.” White, 635 F.3d at 576 (quoting Brown v. Pro Football, Inc., 518 U.S. 231, 241 , 116 S.Ct. 2116 , 135 L.Ed.2d 521 (1996)).
At the summary judgment stage, antitrust law “limit[s] the range of permissible inferences from ambiguous evidence in a [Section 1 conspiracy] case,” id. at 577, because the risk of mistaking independent, parallel decisionmaking for a conspiracy could “chill the very conduct the antitrust laws are designed to protect,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 594 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). Accordingly, “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Id. (quoting Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 , 104 S.Ct. 1464 , 79 L.Ed.2d 775 (1984) ' (internal quotation marks omitted)).
Here, the Plaintiffs “must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action.” Id. This requires “direct or circumstantial evidence that is not only consistent with conspiracy, but ‘tends to exclude the possibility of independent action.’ ” White, 635 F.3d at 577 (quoting Monsanto Co., 465 U.S. at 764, 104 S.Ct. 1464 ). Circumstantial evidence meeting this standard may demonstrate, for example, “parallel behav *251 ior that would probably not result from chance, coincidence, independent responses to common stimuli, or mere interdependence unaided by an advance understanding among the parties.” Twombly, 550 U.S. at 556 n. 4, 127 S.Ct. 1955 (quoting 6 Areeda & Hovenkamp, Antitrust Law ¶ 1425, at 167 (2d ed.2003)). Pieces of evidence pointing toward conspiracy are sometimes called “plus factors.” See White, 635 F.3d at 577 (citing Twombly, 550 U.S. at 556 & n. 4, 127 S.Ct. 1955 ; In re Flat Glass Antitrust Litig., 385 F.3d 350, 360 (3d Cir.2004)).
C. The Parties’ Arguments
According to the Defendants, the Plaintiffs have failed to meet their evidentiary burden under this standard. First, the Defendants argue, the discovery process has yielded no direct evidence of discussions among AstraZeneca and the Generic Defendants suggesting a single agreement or conspiracy. Mem. Supp. AstraZeneca, Ranbaxy, & Teva Defs.’ Mot. Partial Summ. J. Overarching Conspiracy (“Defs.’ Conspiracy Mem.”) 6-7, ECF No. 654; see also Mem. Supp. DRL’s Mot. Summ. J. (“DRL Mem.”) 18-19, ECF No. 633; Reply Supp. AstraZeneca, Ranbaxy, & Teva Defs.’ Mot. Partial Summ. J. Overarching Conspiracy (“Defs.’ Conspiracy Reply Mem.”) 3, ECF No. 816; Reply Mem. Supp. DRL’s Mot. Summ. J. (“DRL Reply Mem.”) 12-17, ECF No. 819. Second, regarding potential circumstantial evidence, the Defendants point out that “[t]he existence of discrete, bilateral agreements between companies does not support an inference of an overarching agreement.” Defs.’ Conspiracy Mem. 8. They emphasize that their agreements, which were concluded “many months apart from one another and at different stages of the individual lawsuits,” id., were negotiated at arms’ length and based on the interests of the parties involved in each settlement, not on a common goal shared by the Defendants, id. at 9. They deny that “similarities” among the three agreements, or the fact that AstraZeneca was a party to all three settlements, make out a reasonable inference of interdependence. Id.
The Plaintiffs, for their part, read the record quite differently. The Plaintiffs argue that at least three sets of undisputed facts constitute either direct or sufficient circumstantial evidence of a conspiracy: (1) the May 27, 2014 market entry date and “virtually identical” contingent launch clauses common to all three agreements, (2) the provisions authorizing disclosure of settlement terms to the Generic Defendants still in the midst of their own settlement negotiations, and (3) the Generic Defendants’ knowledge that delayed generic entry was anticompetitive. See Direct Purchaser & End-Payor Class Pis.’ Opp’n AstraZeneca, Ranbaxy & Teva Defs.’ Mot. Partial Summ. J. Overarching Conspiracy (ECF No. 647) & Portion DRL’s Mot. Summ. J. (ECF No. 594) (“Class Pis.’ Conspiracy Opp’n”) 3-4, 11, ECF No. 784; see also Retailer Pis.’ Mem. Opp’n AstraZeneca’s, Ranbaxy’s, & Teva’s Mot. Partial Summ. J. Pis.’ Overall Conspiracy Claim (“Retailer Pis.’ Conspiracy Opp’n”) 8, 10-11, ECF No. 746 (similarly relying on the above facts). 3
*252 D. Direct Evidence
To start, the Court will not construe the facts offered by the Plaintiffs as direct evidence of a conspiracy. These pieces of evidence are not analogous to the types of express threats or communications that other courts have treated as direct evidence. See, e.g., Monsanto, 465 U.S. at 765, 104 S.Ct. 1464 (regarding a supplier’s advice to distributors that they would be terminated if they did not maintain suggested price levels); Mayor & City Council of Baltimore v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir.2013) (“[Direct] evidence would consist, for example, of a recorded phone call in which two competitors agreed to fix prices at a certain level.”); InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 163 (3d Cir.2003) (listing examples of direct evidence, including “a direct threat to the plaintiff from a competitor that if he went into business his competitors would do anything they could to stop him,” “a memorandum ... detailing the discussions from a meeting of a group of alleged conspirators,” and “a public resolution by a professional association recommending that its members withdraw their affiliation with an insurer” (quoting Intervest Fin. Servs. v. S.G. Cowen Sec. Corp., 206 F.Supp.2d 702, 713 (E.D.Pa.2002))).
The Court’s conclusions are informed by the Third Circuit’s persuasive reasoning that “[d]irect evidence in [an antitrust] conspiracy must be evidence that is explicit and requires no inferences to establish the proposition or conclusion being asserted.” In re Baby Food Antitrust Litig., 166 F.3d 112, 118 (3d Cir.1999). By this logic, the evidence offered by the Plaintiffs is not direct evidence, because it does not establish, on its own, concerted action among the Defendants. Evidence of close similarities among the Defendants’ three settlements, of the Defendants’ opportunities to. conform their settlements to the others, and of the Defendants’ motives to cooperate still requires the Court to infer that illegal coordination occurred.
E. Circumstantial Evidence
The Plaintiffs’ evidence, particularly the settlement agreements themselves, fares much better when evaluated as circumstantial evidence of a conspiracy.
1. Interstate Circuit and Toys “R” Us
While the Defendants are correct to state that “discrete, bilateral agreements” are not necessarily evidence of an overarching conspiracy, Defs.’ Conspiracy Mem. 8, courts do treat separate bilateral agreements as evidence of a single conspiracy when the agreements are sufficiently interdependent and made in the context of other plus factors suggesting coordination.
In Interstate Circuit, Inc. v. United States, 306 U.S. 208 , 59 S.Ct. 467 , 83 L.Ed. 610 (1939), the Supreme Court considered whether a set of eight bilateral agreements between a movie exhibitor and eight movie distribution companies could constitute an illegal conspiracy. The manager of the exhibitor, Interstate, had sent a letter to all the distributors, “each letter naming all of them as addressees, in which he asked compliance with two demands as a condition of Interstate’s continued exhibition of the distributors’ films.” Id. at 215-16 , 59 S.Ct. 467 . All the distributors agreed to the demands. Id. at 218-19 , 59 S.Ct. 467 . The Supreme Court inferred not only that the exhibitor and distributors had engaged in an unlawful conspiracy, but also that no evidence of agreement among the distributors was required to sustain such an inference:
It was enough that, knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme and participated in *253 it. Each distributor was advised that the others were asked to participate; each knew .that cooperation was essential to successful operation of the plan. They knew that the plan, if carried out, would result in a restraint of commerce ....
Id. at 226 , 59 S.Ct. 467 .
A more recent case affirming the Interstate Circuit approach to conspiracy hews even closer to the facts before this Court. In Toys “R” Us, Inc. v. Fed. Trade Comm’n, 221 F.3d 928 (7th Cir.2000), the toy retailer Toys “R” Us executed a series of agreements with individual toy manufacturers, “in each of which the manufacturer promised to restrict the distribution of its products to low-priced warehouse club stores, on the condition that other manufacturers would do the same.” Id. at 930 (emphasis added). The Seventh Circuit, reviewing a decision of the Federal Trade Commission (“F.T.C.”) under a relatively deferential substantial evidence standard, affirmed the F.T.C.’s ruling that Toys “R” Us had brokered “a network of vertical agreements,” id., constituting a horizontal agreement. Id. at 935-36 .
In both of these cases, interdependence was not the sole basis for an inference of conspiracy; the presiding courts also relied on the presence of plus factors suggesting that the parties were tacitly cooperating. In Interstate Circuit, the distributors knew that while lone action created “risk of a substantial loss of ... business and good will,” collective action offered “the prospect of increased profits,” creating “strong motive for concerted action.” 306 U.S. at 222 , 59 S.Ct. 467 . Further, their compliance with Interstate’s demands “involved a radical departure from the previous business practices of the industry.” Id. The Seventh Circuit observed these characteristics in Toys “R” Us as well, citing evidence that Toys “R” Us’s demands were against the toy manufacturers’ interests and that each manufacturer resisted committing to an agreement unless all its competitors did so. See Toys “R” Us, 221 F.3d at 936 .
It does not escape the Court’s notice that these cases involve a series of vertical agreements between parties at different points in the distribution chain, whereas the instant case presents a series of horizontal agreements between direct competitors. This distinction does not convince the Court that the cases are inapposite, however. The Supreme Court has affirmed that the logic of Interstate Circuit can apply to a conspiracy made up only of horizontal competitors. See United States v. Masonite Corp., 316 U.S. 265, 274-76 , 62 S.Ct. 1070 , 86 L.Ed. 1461 (1942) (quoting Interstate Circuit, 306 U.S. at 226 , 59 S.Ct. 467 ) (holding that a series of independent bilateral contracts made between a hardboard manufacturer/distributor and its competitors comprised an illegal price-fixing competition).
Moreover, the vertical nature of the Interstate Circuit and Toys “R” Us agreements had little bearing on the substantive reasoning of either decision. If anything, those decisions required only that the parties acquiescing to the proposed arrangement — the movie distributors and toy manufacturers — be direct competitors in a horizontal relationship with each other. See Interstate Circuit, 306 U.S. at 227 , 59 S.Ct. 467 (referring to “[acceptance by competitors ... of an invitation to participate in a plan”); Toys “R” Us, 221 F.3d at 936 (“[Toys “R” Us] accomplished [its] goal by inducing the suppliers to collude, rather than to compete independently____”). This element is satisfied in the instant litigation, as all the Generic Defendants accepting AstraZeneca’s settlement were direct competitors.
*254 2. Interdependence
Like the agreements at issue in Interstate Circuit and Toys “R” Us, AstraZeneca’s agreements with the Generic Defendants demonstrate a degree of interdependence suggesting a single agreement, even if no such agreement was expressly made between the Generic Defendants.
The core concession that AstraZeneca extracted from each Generic Defendant in this part of each settlement was an agreement not to enter the market until May 27, 2014. Especially in light of the significant consideration being offered by AstraZeneca through various side agreements, as well as AstraZeneca’s interest in negotiating the same entry date for all Generic Defendánts, it is not difficult to understand their agreements to delay entry as being driven by separate business decisions that happened to coincide because of “independent responses to common stimuli.” Twombly, 550 U.S. at 556 n. 4, 127 S.Ct. 1955 . These concessions are, alone, as consistent with conspiracy as they are with independent action.
But when the concessions are contingent on the actions of others, they are not so clearly discrete. Each Generic Defendant may have made an independent decision to sign its agreement with AstraZeneca, but it did not enter into an arrangement independent of its generic competitors. Each agreed to delay its market entry on the express condition that every other Generic Defendant do the same. See, e.g., Ranbaxy Agreement § 5.2.
The Defendants attempt to frame this conditional agreement as evidence that no conspiracy existed, since the participants in a bona fide conspiracy to delay market entry would have no need for contingency provisions protecting each participant from the actions of its co-conspirators. See Defs.’ Conspiracy Reply 5. This argument seems to assume that the Plaintiffs imagine the existence of a secret, back room deal to delay market entry, which was then memorialized in three separate settlement agreements. While the Defendants are correct that such an arrangement cannot be reasonably inferred from the evidence, this is not the inference the Plaintiffs ask the Court to draw. Rather, the Court infers — as commanded by Fed.R.Civ.P. 56 — that the contingent launch clauses themselves were the mechanism of a single agreement, the means by which individual market delay concessions knit together into a network of related agreements.
The interdependence of these provisions is self-evident. Without contingent launch provisions, each Generic Defendant’s agreement to delay entry until May 27, 2014 is a genuinely independent concession, setting a date that holds firm regardless of the actions of competitors. With contingent launch provisions, each Generic Defendant’s May 2014 commitment only holds firm if in concert with its competitors. There is no independence in agreeing to terms that depend on the actions of third parties in order to operate.
The Court is not dissuaded by evidence that each agreement was independently negotiated and apparently settled without consultation between, any other Generic Defendant. The Defendants rely on these facts to argue that the three settlements cannot be considered a single overarching agreement. See, e.g., Defs.’ Conspiracy Mem. 8-10. In fact, no evidence of such communication among the Generic Defendants is necessary to form a Sherman Act conspiracy, nor is it even necessary for the agreements to have occurred close in time:
It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. Acceptance by competitors, without pre *255 vious agreement, of an invitation to participate in a plan [restraining interstate commerce] is sufficient to establish an unlawful conspiracy under the Sherman Act.
Interstate Circuit, 306 U.S. at 227 , 59 S.Ct. 467 (internal citations omitted); see also Masonite, 316 U.S. at 275 , 62 S.Ct. 1070 (holding a combination among Masonite and its fellow appellees to be illegal even though “each appellee, other than Masonite, acted independently of the others, negotiated only with Masonite, desired the agreement regardless of the action that might be taken by any of the others, did not require as a condition of its acceptance that Masonite make such an agreement with any of the others, and had no discussions with any of the others”). 4
DRL makes a similar argument, arguing that the lack of agreement among the Generic Defendants is fatal to the Plaintiffs’ conspiracy claims because the Plaintiffs have alleged a “rimless wheel” conspiracy, in which AstraZeneca is the hub and the Generic Defendants are the spokes of a wheel. See DRL Mem. 18; see, e.g., Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430 , 435 n. 3 (6th Cir.2008). Courts in the First Circuit do not appear commonly to employ this mode of analysis in antitrust cases, but persuasive authority from other circuits holds that in order to establish such a conspiracy, the “wheel” of the alleged conspiracy must have a rim — in other words, evidence of agreement or connection between the spokes. See, e.g., In re Insurance Brokerage Antitrust Litig., 618 F.3d 300, 327 (3d Cir.2010); Total Benefits, 552 F.3d at 435-36 ; Dickson v. Microsoft Corp., 309 F.3d 193, 203 (4th Cir.2002); Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1279-80 (8th Cir.1983).
To the extent it is necessary to do so, the Court is able reasonably to infer such connections between Generic Defendants in this case. At least one court has expressly distinguished both Interstate Circuit and Toys “R” Us from rimless wheel conspiracies on grounds that are equally applicable to the Nexium agreements. In In re Insurance Brokerage Antitrust Litigation, 618 F.3d at 300 , the Third Circuit reasoned that there was a rim connecting the spokes in the Interstate Circuit and Toys “R” Us arrangements because “[i]n both cases, the evidence clearly indicated that the defendants would not have undertaken their common action without reasonable assurances that all would act in concert.” Id. at 332 ; see also Total Benefits Planning Agency, 552 F.3d at 435-36 (asserting that the “wheel” in the Toys ‘R” Us arrangement had a rim). In the instant case, such assurances that market delay would not unduly disadvantage any one Generic Defendant were memorialized in the form of contingent launch clauses. For the purposes of the hub-and-spoke analogy, keeping in mind the presumptions required at the summary judgment stage, the Court treats the intrinsic^ interdependence of the contingent launch clauses as sufficient evidence of connection between the Generic Defendant “spokes.”
*256 3. Plus Factors Pointing to Conspiracy
Moreover, the types of plus factors that supported the rulings in Interstate Circuit and Toys “R” Us are present here. The protracted litigation between each Generic Defendant and AstraZeneca leading up to each settlement demonstrates that the Generic Defendants wanted to come to market years before May 2014. There is evidence that agreeing to delay market entry is contrary to a generic competitor’s interests, because of the potentially lucrative market for generic Nexium and the risk that by the time the generic competitor enters, the brand manufacturer will have transferred its monopoly power to a slightly reformulated product, shrinking the market for generic Nexium. See Retailer Pls.’ Conspiracy Opp’n 11; see also As traZeneca AB v. Apotex Corp., 985 F.Supp.2d 452, 465-467 (discussing AstraZeneca’s efforts to transfer its lucrative sales of Prilosec, a branded proton pump inhibitor medication for heartburn, to Nexium, a distinct and newer branded proton pump inhibitor medication for heartburn, just before the expiration of the Prilosec patents). The record — and common sense — also shows that each Generic Defendant would be reluctant to agree to delay its entry unless AstraZeneca could secure the same guarantee of delay from all its generic competitors, lest a competitor capture the generic market before May 27, 2014. See Class Pls.’ Conspiracy Opp’n 11-12. The Defendants possessed strong motives to coordinate the actions they took. In conjunction with the interdependence of the agreements themselves, these factors are consistent with the existence of a single agreement, tend to exclude the possibility of independent action, and adequately support a reasonable inference of conspiracy.
F. The In re Modafinil Litigation
Since the Court’s denial of this motion in January, another court has considered these same issues and reached a different conclusion. In the consolidated litigation currently before Judge Mitchell S. Goldberg in the Eastern District of Pennsylvania, putative classes of direct purchasers, end-payors, and individual direct pharmaceutical retailers are among the plaintiffs suing a brand drug manufacturer and several generic manufacturers (including Ranbaxy and Teva), for alleged conspiracy to restrain trade in the market for a generic drug. King Drug Co. of Florence, Inc. v. Cephalon, Inc. (“In re Modafinil Litig.”), Civil Action Nos. 2:06-cv-1797, 2:06-cv-1833, 2:06-cv-2768, 2014 WL 2813312 , at *1-2 (E.D.Pa. June 23, 2014). At the heart of the case are four reverse payment agreements, made between a brand manufacturer and four generic manufacturers, that settled the brand manufacturer’s pending patent infringement lawsuits relating to the brand drug Provigil. Id. at *1-3 . Each generic manufacturer agreed to delay its entry into the generic Provigil market until an identical future date, unless a third party legally entered the market first. Id. at *4 . As is evident and as all parties here agree, the case presents overarching conspiracy questions indistinguishable from those before this Court. See Defs.’ Submission Supp. Authority Relating Pis.’ Overarching Conspiracy Claims (“Defs.’ Modafinil Mem.”) 1, ECF No. 955; Direct Purchaser Class Pis.’ Resp. Defs.’ Submission Supp. Authority Relating Pis.’ Overarching Conspiracy Claims (“Direct Purchasers’ Modafinil Mem.”) 1, ECF No. 960.
In In re Modafinil, the court ruled that the defendant pharmaceutical companies’ agreements did not constitute evidence of an illegal conspiracy and granted the defendants’ motion for summary judgment. *257 2014 WL 2813312 , at *14. Key to Judge Goldberg’s reasoning was the conclusion that cases like “Toys “R” Us” and United States v. Apple, Inc., 952 F.Supp.2d 638 (S.D.N.Y.2013) (holding that individual agreements between book publishers and Apple, Inc. to raise the retail price of e-books constituted an illegal antitrust conspiracy), are distinguishable from the Modafinil agreement. He reasoned that unlike the toy manufacturers in Toys “R” Us and the book publishers in Apple (and, indeed, the movie distributors in Interstate Circuit), the Modafinil generic defendants entered into agreements that were in their economic interest regardless of what their competitors did. See In re Modafinil Litig., 2014 WL 2813312 , at *11-12. The court commented that “the [Modafinil ] settlements seemed to offer the best of both worlds: an end to costly litigation, combined with lucrative business deals and an assurance that each Generic Defendant would not be disadvantaged regarding the entry of generic Provigil.” Id. at *12 . Thus, with “no evidence that the bilateral settlements contravened the Generic Defendants’ self-interest, and significant evidence that the settlements were in line with their economic self-interests, ... a fact-finder cannot draw an inference of conspiracy.” Id. at *13 . The Defendants in the instant case have urged this Court to adopt identical reasoning. See Defs.’ Conspiracy Reply 13-14 (discussing Toys “R” Us); Defs.’ Modafinil Mem. 3-4.
Although Judge Goldberg’s analysis is thorough and thoughtful, this Court respectfully disagrees with his understanding of the nature of these settlements. The issue is not whether it was economically rational for the Generic Defendants to include contingent .launch clauses in their agreements — it is obvious that such clauses are beneficial, because they prevent a settling generic manufacturer from being locked out of the market while its competitors take over. Rather, the issue is whether it was rational for each generic manufacturer to agree to delay entering the generic market until May 27, 2014. Delayed entry, not contingent launch, is the substance of this part of each settlement agreement, and the actual concession for which AstraZeneca allegedly paid valuable consideration.
It is conceivable that AstraZeneca’s consideration could have been so valuable that it was financially attractive for a generic manufacturer to forego the generic market for a multi-year period without protection from the actions of its competitors. If that were the case, it would be straightforward to conclude that each 'Generic Defendant made a purely independent decision in its own self-interest. But that does not appear to have been the case here. The Defendants themselves have conceded that the Generic Defendants “needed” protection from the actions of their competitors to justify agreeing to delayed entry. Mot. Hr’g Tr. 41:18, Jan. 21, 2014, EOF No. 833. This is sufficient, for the purposes of summary judgment, to give rise to a reasonable inference that delayed entry on its own was not an economically beneficial proposition for any of the Generic Defendants. The unattractiveness of being “stuck on the sidelines,” id. at 41:19 , until May 27, 2014, meant that to each Generic Defendant, delayed entry on its own was not a viable proposition unless it could be assured of its position vis-a-vis its competitors.
This dilemma sets up a clear incentive for the Defendants to cooperate with each other, and they did so by providing for contingent launch clauses that would coordinate the Generic Defendants’ entries into the market. This is no different than the situation faced by the parties in “Toys “R” Us”. Toys “R” Us asked individual toy manufacturers to restrict their business in *258 exchange for the consideration of continuing to retail that manufacturer’s toys — an unattractive deal for the manufacturer worried about its competition’s freedom to do broader business with other retail outlets. See Toys “R” Us, 221 F.3d at 932-33 . Each manufacturer’s calculus changed, however, when it received assurance that it would only have to restrict its business if its competitors did the same. 5 The Seventh Circuit has held that individual decisions to join such an arrangement can constitute a single overarching conspiracy, and this Court agrees. From the fact that the Nexium settlement agreements were not in the Generic Defendants’ self-interest unless their agreements contained provisions aligning their behavior, a reasonable fact-finder could draw an inference of conspiracy. This is enough. The issue of conspiracy vel non is one for a jury to decide — not a judge. Cf. Securities & Exch. Comm’n v. EagleEye Asset Mgmt., 975 F.Supp.2d 151, 161 (D.Mass.2013).
G. DRL’s Motion for Reconsideration [ECF No. 905]
On April 22, 2014, DRL moved for reconsideration of this Court’s denial of its motion for summary judgment as to overarching conspiracy, and the Court subsequently denied its motion. See DRL’s Mot. Reconsideration, ECF No. 905; Elec. Order, May 9, 2014, ECF No. 916. Although DRL raised arguments which the Court already has declined to adopt, it also advanced arguments underscoring the proposition that it is differently situated from its co-Defendants as to the issue of overarching conspiracy. See Mem. Supp. DRL’s Mot. Reconsideration (“DRL’s Conspiracy Reconsideration Mem.”), ECF No. 906. Those arguments merit further consideration.
As is explicated in greater detail later in this opinion, evidence in the record shows that at the time of its settlement with AstraZeneca, DRL was experiencing problems developing a generic Nexium product that could obtain FDA approval in time for a May 2014 launch. See id. at 4. DRL asserts that because of these problems, it signed its settlement agreement believing that it likely lacked the capacity to come to market before May 2014 under any circumstance. Id. Understandably, this made DRL indifferent to the fact that it agreed to delay market entry until May 2014 as a part of its settlement with AstraZeneca. Id. at 5.
DRL relies on these largely undisputed facts to argue that to the extent a conspiracy exists in this case, it ought not be considered a co-conspirator. Two compelling propositions underpin its arguments: (1) that DRL’s settlement agreement did nothing to advance a conspiracy to delay generic entry, and (2) that DRL had no motive to join such a conspiracy because the scheme conferred no benefit on DRL. For the reasons explained below, neither proposition justifies reversing the Court’s denial of summary judgment.
First, DRL contends that because it could not have come to market before May 2014 even had it been free to do so, agreeing to delay its market entry did nothing to further the alleged conspiracy to delay generic competition. Id. at 5-7. DRL reasons that its settlement agreement had no effect on the alleged conspiracy because it merely agreed to refrain from doing what it lacked the capacity to do anyway. See id. at 7.
*259 IN RE NEXIUM (ESOMEPRAZOLE) ANTITRUST LITIGATION 259 Cite as 42 F.Supp.3d 231 (D.Mass. 2014) [14] These arguments presume that elements of the conspiracy allegation are requisite when they simply do not exist. DRL’s status as an alleged co-conspirator does not turn on whether it actually contributed to the delayed market entry of generic Nexium as a result of its settlement. The essence of conspiracy is agreement, and a party may be a co-conspirator even if he does nothing to further the accomplishment of the conspiracy’s goals. See United States v. Paramount Pictures, 334 U.S. 131, 161 , 68 S.Ct. 915 , 92 L.Ed. 1260 (1948) (“[A]cquiescence in an illegal scheme is as much a violation of the Sherman Act as the creation and promotion of one.”). DRL is not aided by arguing that it failed to contribute to the alleged conspiracy because it lacked the capacity to do so. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150 , 224 n. 59, 60 S.Ct. 811 , 84 L.Ed. 1129 (1940) (“[I]t is well established that a person may be guilty of conspiring, although incapable of committing the objective offense.”) (internal quotation marks and citations omitted). [15] Nor is the Court persuaded to disregard DRL’s settlement because it agreed only to do what it would have done anyway. “[Conspiracies under the Sherman Act are not dependent on any overt act other than the act of conspiring,” and participants in an illegal conspiracy have never been required to have altered their behavior as a result of the conspiracy to be treated as co-conspirators. Id. DRL,’ like its co-Defendants, signed an agreement to stay out of the generic Nexium market as long as its competitors did the same. This continues to be compelling evidence of acquiescence to a common scheme to delay generic competition. That DRL’s purported acquiescence may not have had any effect on the state of generic competition is irrelevant. Second, DRL argues that a reasonable factfinder cannot infer that it acquiesced to a conspiracy, because it had no motive to join such a scheme. See DRL’s Conspiracy Reconsideration Mem. 11-13. DRL’s inability to come to market before May 2014, regardless of the terms of its settlement, meant that it had nothing to gain from a conspiracy to delay generic competition. This purportedly made it indifferent to the concession it made to delay its generic launch. Id. The Court recognizes that in this regard, DRL appears differently situated from its Generic co-Defendants. The Court also recognizes that its ruling that a reasonable jury could infer that the Generic Defendants acted against their interests in agreeing to delay generic launch does not apply so neatly to DRL. But these distinctions still do not absolve DRL of potential liability. [16]DRL’s inability to come to market notwithstanding, the Court is not persuaded that it lacked sufficient motive to acquiesce to the alleged conspiracy. It is not difficult to infer that DRL agreed to delay market entry not because the provision was important to DRL, but because it was important to AstraZeneca and a condition of settlement. By making that concession, DRL obtained benefits in return, including an end to two lawsuits brought by AstraZeneca. That it was not a costly concession for DRL to make would only strengthen DRL’s incentive to agree to such terms. In this light, it seems absurd to posit that DRL obtained no benefit from its agreement to delay market entry. DRL only stood to gain from agreeing to the same terms as Ranbaxy and Teva. Further, evidence in the record supports the inference that DRL knew it was agreeing to the same terms as its generic competitors, and that it understood generic delay to be anticompetitive. See Pis.’ Mem. Opp’n DRL’s Mot. Reconsideration
*260 (ECF 905) 7-8, ECF No. 914. Even if DRL was differently situated from its generic competitors, a reasonable factfinder could infer that DRL’s acceptance of identical delayed entry terms constituted knowing acquiescence in the other Defendants’ “unity of purpose” — that is* their common goal to delay generic competition in the Nexium market until May 2014. American Tobacco Co. v. United States, 328 U.S. 781, 810 , 66 S.Ct. 1125 , 90 L.Ed. 1575 (1946).
The Court cannot, in light of these plausible and reasonable inferences, rule that summary judgment is warranted as to DRL’s role in a purported conspiracy.
The net effect of these various rulings concerning overarching conspiracy is that if any one of the Defendants is subject to antitrust liability, all the Defendants may be liable as co-conspirators.
IV. MOTIONS FOR SUMMARY JUDGMENT AS TO THE RANBAXY SETTLEMENT [ECF Nos. 642, 641, 645, 867]
In addition to their motions challenging the notion that an overarching conspiracy exists, the Defendants filed several motions for summary judgment on the grounds that specific elements of the Plaintiffs’ case have not been established as to every Generic Defendant. First, the Defendants argue that their settlement agreements were not illegal reverse payments under the standards set out by the Supreme Court. Second and in the alternative, they claim that because none of the Generic Defendants would have come to market before May 27, 2014, even absent settlement, the Plaintiffs cannot show that the Nexium settlements were the cause of any delay in the availability of generic Nexium.
Determining whether these assertions are true requires due consideration of the facts- specific to each of the three Nexium settlements. In this section, the Court explains its analysis of the issues with respect to AstraZeneca’s settlement with Ranbaxy (the “Ranbaxy Settlement”).
First, this Court examines the issue of whether the Ranbaxy Settlement and related agreements made on the same day arranged a “large and unjustified” reverse payment to Ranbaxy. Actavis, 133 S.Ct. at 2237 (“In sum, a reverse payment, where large and unjustified, can bring with it the risk of significant anticompetitive effects.... ”). Upon AstraZeneca and Ranbaxy’s joint motion for summary judgment, AstraZeneca & Ranbaxy Defs.’ Mot. Summ. J. All Claims Arising AstraZeneca’s Settlement Agreement Ranbaxy, ECF No. 642, the Court ruled that the Plaintiffs have established a reasonable inference that Ranbaxy received a reverse payment that ought be subject to antitrust scrutiny. Order, Feb. 12, 2014, ¶ 8.
Next, the Court addresses whether the Plaintiffs have adequately shown a causal nexus between the Ranbaxy Settlement and their alleged antitrust injury. Finding that the Plaintiffs have failed sufficiently to demonstrate causation, this Court granted Ranbaxy’s motion for summary judgment on that issue, Def. Ranbaxy’s Mot. Summ. J. Lack Causation, ECF No. 641. Order, Feb. 12, 2014, ¶ 9. The Court also denied the Plaintiffs’ subsequent motion for reconsideration, Pis.’ Mot. Reconsideration AstraZeneca’s & Ranbaxy’s Mots. Summ. J. Due Lack Causation (ECF' # 641, 645) Based New Evidence, ECF No. 867. Elec. Clerk’s .Notes, Apr. 16, 2014, ECF No. 902.
Finally, this Court extends its antitrust causation analysis to AstraZeneca’s derivative motion for summary judgment, AstraZeneca Defs.’ Mot. Summ. J. Basis Causation, ECF No. 645. The Court partially *261 granted this motion as to the Ranbaxy Settlement. Order, Feb. 12, 2014, ¶ 10.
A. AstraZeneca and Ranbaxy Defendants’ Motion for Summary Judgment on All Claims Arising From AstraZeneca’s Settlement with Ranbaxy [ECF No. 642]
AstraZeneca and Ranbaxy jointly filed a motion for summary judgment on all claims arising from the Ranbaxy Settlement, arguing that AstraZeneca made no illegal reverse payment to Ranbaxy as part of their settlement. AstraZeneca & Ranbaxy Defs.’ Mot. Summ. J. All Claims Arising AstraZeneca’s Settlement Agreement Ranbaxy, ECF No. 642. The Court denied this motion on the basis that the Plaintiffs were able to support an inference of a “large and unjustified payment,” evincing the proper economic valuation and factual support to suggest that Ranbaxy was induced to delay its generic launch in exchange for certain lucrative side business arrangements with AstraZeneca. Order, Feb. 12, 2014, ¶ 8, ECF No. 857 (quoting Actavis, 133 S.Ct. at 2237 ). A reasonable jury would be able to find that these side arrangements amounted to an illegal reverse payment to Ranbaxy. This decision warrants explanation, and it is provided here.
1. Undisputed Factual Background Germane to This Motion
In addition to the facts which have been outlined earlier in this opinion, it is necessary to review in some further depth the particular character of the Ranbaxy Settlement. Recall that AstraZeneca’s initiation of a patent infringement lawsuit against Ranbaxy triggered a 30-month litigation stay under the Hatch-Waxman Act, during which time no final approval of Ranbaxy’s tentatively-approved generic Nexium product could be granted. See 21 U.S.C. § 355 (j)(5)(B)(iii); see also Direct Purchaser & End-Payor Class Pis.’ Local R. 56.1 Resp. AstraZeneca & Ranbaxy Statement Undisputed Facts Relating Mot. Summ. J. Claims Arising AstraZeneca’s Settlement Ranbaxy (ECF No. 684) & Statement Additional Material Facts (“Pis.’ Ranbaxy Reverse Payment Facts”) ¶ 1, ECF No. 778; Direct Purchaser & End-Payor Class Pis.’ Opp’n AstraZeneca & Ranbaxy Defs.’ Summ. J. All Claims Arising AstraZeneca’s Settlement Agreement Ranbaxy (“Pis.’ Ranbaxy Reversa Payment Opp’n”) 4, ECF No. 787. Anticipating the expiration of the stay in April 2008 and the possibility that Ranbaxy might choose to launch generic Nexium at risk after that time, AstraZeneca began an effort in 2007 and 2008 to launch its own authorized generic version of Nexium, in order to maintain revenue that it would otherwise lose upon Ranbaxy’s entry into the market. See Pis.’ Ranbaxy Reverse Payment Opp’n 4 n. 8.
AstraZeneca changed its plans, however, when it settled with Ranbaxy on April 14, 2008. As was the case in all of the Nexium settlements, AstraZeneca agreed to end its patent infringement lawsuit against Ranbaxy in exchange for certain legal admissions and an agreement to delay launch of Ranbaxy’s generic product until May 27, 2014. See In re Nexium, 968 F.Supp.2d at 381-82 . As part of the Ranbaxy Settlement, however, AstraZeneca also “agree[d] to refrain from producing its own authorized generic version of Nexium during [Ranbaxy’s] 180-day exclusivity period.” Id. at 382 . Further, on the same day the parties signed their settlement, they also entered into a series of other business agreements (“the Side Agreements”). AstraZeneca & Ranbaxy Statement Undisputed Facts Relating Mot. Summ. J. Claims Arising AstraZeneca’s Settlement Ranbaxy (“Defs.’ Ranbaxy Reverse Payment Facts”) ¶ 4, ECF No. 684. These Side Agreements included (1) two agree *262 ments under which Ranbaxy would distribute authorized generic versions of AstraZeneca’s brand drugs, Plendil and 40 mg Prilosec (“the Distribution Agreements”), (2) an agreement under which Ranbaxy would store AstraZeneca’s products for a nominal fee, (3) an agreement (“the API Supply Agreement”) under which Ranbaxy would supply AstraZeneca with significant amounts of esomeprazole magnesium, the active pharmaceutical ingredient in Nexium, for sale in the United States, and (4) an agreement (“the Tolling Agreement”) under which Ranbaxy would supply AstraZeneca with branded Nexium capsules for sale in the United States. Defs.’ Ranbaxy Reverse Payment Facts ¶4, ECF No. 684.
Following the execution of these agreements with Ranbaxy, AstraZeneca abandoned its efforts to produce its own authorized generic Nexium pills. See Pis.’ Ranbaxy Reverse Payment Opp’n 7.
2. Legal Standard: Illegal Reverse Payments
The Supreme Court has held that the existence of a reverse payment is neither presumptively lawful nor unlawful, see Actavis, 133 S.Ct. at 2237 , and deciding whether such a payment is unlawful requires consideration of multiple factors to determine whether a large reverse payment “can bring with it the risk of significant anticompetitive effects,” id. To that end, “large and unjustified” reverse payments must be analyzed under the rule of reason, giving weight to “the likelihood of a reverse payment bringing about anticompetitive effects depends upon its size, its scale in relation to the payor’s anticipated future litigation costs, its independence from other services for which it might represent payment, and the lack of any other convincing justification,” as well as the particularities of the parties’ industry. Id. As this Court held in denying the Defendants’ motion to dismiss, unlawful reverse payments are not limited to monetary payments. In re Nexium, 968 F.Supp.2d 367, 392 (D.Mass.2013) (“This Court does not see fit to read into the [Actavis ] opinion a strict limitation of its principles to monetary-based arrangements alone. Adopting a broader interpretation of the word ‘payment,’ ... serves the purpose of aligning the law with modern-day realities.”).
The initial burden of proof lies with the Plaintiffs, who must present evidence of these factors to show that the accused brand manufacturer made a payment to a generic manufacturer that exceeded anticipated future litigation costs, exceeded the costs of other services, and lacked “any other convincing justification.” Actavis, 133 S.Ct. at 2237 . The size and scale of such a payment, for example, can be an indicator of anticompetitive intent, because “[a] large payment would be an irrational act unless the patentee believed that generic production would cut into its profits.” Herbert Hovenkamp, Anticompetitive Patent Settlements and the Supreme Court’s Actavis Decision, 15 Minn. J.L. Sci. & Tech. 3, 25 (2013). Once this showing is made, the burden then shifts to the Defendants to show that a challenged payment was justified by some preeompetitive objective. For example, “[w]here a reverse payment reflects traditional settlement considerations, such as avoided litigation costs or fair value for services, there is not the same concern that a patentee is using its monopoly profits to avoid the risk of patent invalidation or a finding of noninfringement.” Actavis, 133 S.Ct. at 2236 .
If the Defendants can demonstrate a precompetitive justification, the burden shifts back to the Plaintiffs to establish, under the rule of reason, that the settlement is nevertheless anticompetitive *263 on balance. See Sullivan, 34 F.3d at 1111 (“[T]he rule of reason analysis requires a weighing of the injury and the benefits to competition attributable to a practice that allegedly violates the antitrust laws.”) (citation omitted). At summary judgment, this requires a “showing of harm to competition, either directly or by reasonable inference.” Benjamin v. Aroostook Med. Ctr., Inc., 113 F.3d 1, 2 (1st Cir.1997); see also Addamax Corp. v. Open Software Found., Inc., 888 F.Supp. 274, 283 (D.Mass.1995) (Tauro, J.) (“To state a Sherman Act claim under the rule of reason, [the Plaintiff] bears the initial burden of establishing that [the Defendant’s] actions have ‘an actual adverse effect on competition as a whole in the relevant market.’ ”) (quoting Capital Imaging As socs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 543 (2d Cir.1993)). “If the [Defendant then comes forward with a legitimate justification for the conduct, the [P]laintiff must show that the same legitimate purpose could have been obtained through less restrictive means.” Id. (citing Capital Imaging, 996 F.2d at 543 ).
3. Analysis
a. The Side Agreements
AstraZeneca and Ranbaxy assert that their Side Agreements cannot be considered a form of reverse payment to Ranbaxy, because the Plaintiffs have failed to show evidence that the Side Agreements were anything other than a fair market exchange of value for services. Mem. Supp. AstraZeneca & Ranbaxy Defs.’ Mot. Summ. J. All Claims Arising AstraZeneca’s Settlement Agreement Ranbaxy (“Defs.’ Ranbaxy Reverse Payment Mem.”) 5, ECF No. 656. The Defendants insist that without such evidence, their Side Agreements are “per se lawful” under Actavis. Id. The Court takes a different view.
The Plaintiffs proffer evidence that the Side Agreements had the potential to be highly lucrative for Ranbaxy. They argue that the Supply and Tolling Agreements, under which Ranbaxy would provide esomeprazole magnesium and branded Nexium capsules to AstraZeneca, “provided Ranbaxy a steady stream of profits in the millions of dollars,” and that “Ranbaxy would not have received these agreements in the absence of the Nexium settlement.” Pis.’ Ranbaxy Reverse Payment Facts ¶ 12. The Plaintiffs also point out that the Distribution Agreements, under which Ranbaxy would distribute authorized generic versions of Plendil • and Prilosec, allowed Ranbaxy to retain 20 percent of its profits from sales. This, the Plaintiffs contend, “provided a continuous stream of revenue to Ranbaxy.” Pis.’ Ranbaxy Reverse Payment Opp’n 10.
The Defendants counter that such evidence is of no avail without evidence that Ranbaxy gained greater than fair market value for its services. See Defs.’ Ranbaxy Reverse Payment Mem. 6-8 (pointing out that very little assessment of fair market value has been shown by the Plaintiffs, and challenging the ability of Plaintiffs’ experts to conduct such an assessment at all), see also id. at 11 (asserting that absent such evidence, their agreements cannot trigger antitrust concerns). The Court does not agree, however, that Actavis counsels such a narrow view of fair market value as a dispositive issue. The Actavis opinion makes it clear that evidence of a fair value exchange can “redeem[]” an otherwise suspicious reverse payment. 133 S.Ct. at 2236 . The Court understands this to mean that establishing fair market value is just one of many possible defenses available to a Defendant seeking to demonstrate procompetitive justifications for a reverse payment. Nowhere in Actavis does the Supreme Court *264 suggest that fair market value is a silver bullet against antitrust scrutiny. Neither does the opinion place the initial burden on the Plaintiffs to prove, in their prima facie case, that a transaction was for something other than fair market value.
What the Plaintiffs have established is a reasonable inference that the Side Agreements were lucrative for Ranbaxy and that they were negotiated in conjunction with the Ranbaxy Settlement. It is notable that these agreements were formally extraneous to the Nexium patent litigation, falling into a category of nontraditional settlement forms which logically trigger heightened antitrust scrutiny. Cf. Actavis, 133 S.Ct. at 2236 (“Where a reverse payment reflects traditional settlement considerations, ... there is not the same concern that a patentee is using its monopoly profits to avoid the risk of patent invalidation or a finding of noninfringement.”). It is also notable that the Side Agreements essentially provided a steady flow of revenue to Ranbaxy, based on use of AstraZeneca’s intellectual property, in the precise time period during which it agreed to refrain from marketing its generic Nexium product. The Plaintiffs point out that even if Ranbaxy had won its litigation instead of settling, it would not have secured such favorable arrangements. Pis.’ Ranbaxy Reverse Payment Facts ¶ 12. The evidence as a whole, notwithstanding the lack of fair market value evidence, raises enough suspicions to support a reasonable inference that the Side Agreements were improper reverse payments to induce Ranbaxy to delay its generic launch.
b. The “Exclusive License”
The Defendants also contest the notion that AstraZeneca made additional reverse payments to Ranbaxy by agreeing to refrain from selling its own authorized generic version of Nexium during Ranbaxy’s 180-day exclusivity period. They argue that the concession was an “exclusive license” exempt from antitrust scrutiny under Actavis and federal patent laws, and further that the license was a reasonable business decision in light of the regulatory atmosphere around authorized generics in early 2008. See Defs.’ Ranbaxy Reverse Payment Mem. 11-12.
• Because exclusive licenses are authorized by patent law, the Defendants posit that their exclusive license cannot be considered a reverse payment under Actavis. See id. at 13. They draw the Court’s attention, for example, to the fact that even the F.T.C. expressly differentiated license agreements from reverse payments in its arguments before the Actavis Court. Id. at 12 (referencing the F.T.C.’s arguments that licensors and licensees stand in a “vertical relationship,” unlike brand and generic manufacturers, and that licensing agreements “are generally procompetitive”) (citing Reply Br. Pet’r, Actavis, 133 S.Ct. at 2223 , 2013 WL 1099171 , at *21).
This does not end the Court’s inquiry, however. “Patents give no protection from the prohibitions of the Sherman Act ... when the licenses are used ... in [a] scheme to restrain.” United States v. New Wrinkle, Inc., 342 U.S. 371, 378 , 72 S.Ct. 350 , 96 L.Ed. 417 (1952). The Plaintiffs’ citation to Moraine Products v. ICI America, Inc., 538 F.2d 134 (7th Cir.1976), is compelling:
Where a patent license is used to protect the licensee in addition to the patentee or is used to allow the licensees to divide a market among themselves, thus enabling them jointly to regiment an industry under the guise of a patent license, there is good reason to declare such a restrictive scheme illegal.
*265 Id. at 145 . There is little reason to think this rationale has been abrogated by Actavis. In fact, the Supreme Court rejected the “near-automatic antitrust immunity” the Eleventh Circuit afforded to reverse payment settlements, 133 S.Ct. at 2237 , suggesting that formally classifying an agreement a “license” ought not halt further inquiry into the actual nature of the underlying arrangement.
In this case, while AstraZeneca may have granted an exclusive license for generic Nexium, it retained the right to continue to sell brand Nexium — providing itself with the kind of economic self-protection that Moraine Products suggests warrants suspicion. The Defendants cannot shield themselves with the argument that patent licenses are common and authorized, if such licenses disguise unlawful reverse payments. In view of this consideration, the Court rules that AstraZeneca’s agreement to refrain from marketing generic Nexium during Ranbaxy’s exclusivity period may be considered part of an illegal reverse payment.
The Defendants make one last attempt to exempt this license agreement from scrutiny by arguing that the arrangement was an eminently prudent one in light of the regulatory atmosphere at the time of the Ranbaxy Settlement. Defs.’ Ranbaxy Reverse Payment Mem. 15. They attempt to show that as of early 2008, Congress and the F.T.C. were hostile to authorized generics and believed such practices to be anticompetitive. See id. at 15-16 (citing to an F.T.C. study on the anticompetitive effects of authorized generics, and the statement of U.S. Representative Henry Waxman that authorized generics were an “unfair practice”).
This is a weak argument. As a preliminary matter, the Plaintiffs offer contrary evidence that, at the time of the Ranbaxy settlement, authorized generics were actually considered procompetitive. See Pis.’ Ranbaxy Reverse Payment Opp’n 14 (citing, inter alia, an FDA pronouncement that authorized generics promote pharmaceutical competition). Moreover, the evidence proffered by the Defendants— amounting to the personal opinions of members of Congress and isolated statements of the F.T.C. — simply is not sufficient on its own to win summary judgment for the Defendants.
The Plaintiffs present some of their stronger arguments in service of this particular motion for summary judgment. A reasonable jury can determine on the evidence in the record that under the rule of reason, an unlawful reverse payment was made from AstraZeneca to Ranbaxy in exchange for generic delay. Accordingly, the Court DENIED AstraZeneca and Ranbaxy’s motion for summary judgment on all claims arising from the Ranbaxy settlement, ECF No. 642.
B. Ranbaxy’s Motion for Summary Judgment on the Basis of Causation [ECF No. 641]
The Court now turns to issues of antitrust causation. Ranbaxy moved for summary judgment on the claims against it based on a purported lack of causation. Under the rule of reason, the Plaintiffs are responsible for demonstrating that AstraZeneca, as the brand manufacturer of Nexium, held sufficient market power “to warrant a conclusion of plausible competitive harm” as well as proof of antitrust injury in the form of “higher consumer prices or reduced output.” Hovenkamp, supra, at 23, 25. Central to this analysis is a determination as to whether the Plaintiffs can establish a causal link between any alleged reverse payment and their antitrust injuries, as required under the federal antitrust laws. See 15 U.S.C. § 15 (a) (providing a private right of action to plaintiffs *266 “by reason of’ an antitrust violation). In other words, even if an illegal reverse payment was made, the Plaintiffs cannot prevail unless the Ranbaxy Settlement is proved to have caused Ranbaxy’s delayed entry.
Ranbaxy argues that under any possible circumstance, regulatory hurdles would have prevented Ranbaxy from launching a generic version of Nexium before May 27, 2014, the agreed-upon entry date. Here, the Court, mindful of the presumptions necessitated at summary judgment, must determine whether the Plaintiffs have, adequately shown otherwise. This motion rests at the fulcrum of two opposing considerations: on one hand, a legal framework strongly favors sending causality questions to the jury, and on the other hand, the Plaintiffs have offered little evidence in support of their complicated, multi-step proposition that the FDA would have approved Ranbaxy’s generic Nexium any earlier than May 2014 in the absence of this settlement agreement.
1. Undisputed Facts Germane to This Motion
a. The Ranbaxy Settlement
Ranbaxy and AstraZeneca representatives began to negotiate settlement of their Nexium lawsuit in July 2007. Class Pis.’ Opp’n [641] Ranbaxy’s Statement Undisputed Facts Relating Causation (“Pis.’ Ranbaxy Causation SOF”) ¶¶ 7-8, ECF No. 791-1. In August 2007, Ranbaxy proposed a May 2012 date for it to enter the generic Nexium market; in November 2007, AstraZeneca countered with a date of May 27, 2014. Id. ¶¶ 8-9 . The eventual settlement and its accompanying Side Agreements were finalized on April 14, 2008. After entering into this agreement, “Ranbaxy changed its projections to commercially market its generic Nexium to May 2014.” Id.
In the context of the parties’ Supply and Tolling Agreements, Ranbaxy warranted that it “had the ‘ability and desire to custom manufacture and formulate’ Nexium out of its Ohm [New Jersey] facility.” Id. ¶ 13 (internal citation omitted). To enable Ranbaxy to produce branded Nexium capsules for AstraZeneca under the Tolling Agreement, the FDA approved the site transfer of relevant AstraZeneca technology from India to New Jersey. Id.
b. Ranbaxy’s Nexium ANDA
Ranbaxy’s pending ANDA for generic' Nexium was filed out of its Paonta Sahib, India, facility. Id. ¶ 3 . This means that any FDA approval to market generic Nexium only extended to production at the Paonta Sahib facility. Id. To move production to another facility, Ranbaxy is required to file and gain approval of a site transfer amendment to its ANDA. Id.
The Paonta Sahib site has experienced serious quality control problems since Ranbaxy filed its generic Nexium ANDA in 2005. On February 25, 2009, after issuing several warnings, id. ¶¶ 14-16, 21-24 , the FDA invoked its Application Integrity Policy (“AIP”) against Paonta Sahib, which “halted FDA’s substantive review and approval of all pending ANDAs, including amendments and post-approval supplements that relied on supporting data from the Paonta Sahib site” — including the generic Nexium ANDA. Id. ¶¶ 26-27 . The FDA subsequently rejected Ranbaxy’s proposed Corrective Action Operating Plan, designed to remedy the problems, as well as a request to continue the approval process for Nexium under a public health exception. Id. ¶¶27, 29, 30 (denying a public health exception request for generic Nexium but granting it as to generic Lipitor, another product produced out of Paonta Sahib).
Finally, in 2010, Ranbaxy and the FDA began to negotiate a consent decree to *267 resolve enforcement issues against the company. Id. ¶ 31 . The parties dickered over various terms, including whether Ranbaxy would have to relinquish its right to 180-day marketing exclusivity for generic Nexium, id. ¶¶ 32-34 , and the final decree was filed on January 25, 2012, id. ¶ 35 . It states that the “FDA will not resume review of Ranbaxy’s [Nexium ANDA] ... until Ranbaxy achieves certain milestones set out in the Consent Decree.” Def. Ranbaxy’s Statement Undisputed Facts Supp. Mot. Summ. J. Due To Lack Of Causation (“Ranbaxy Causation SOF”) ¶ 36, ECF No. 646; see also Decl. Sarah Choi Supp. Ranbaxy Def.’s Mot. Summ. J., Ex. 58, Consent Decree Permanent Inj. (“Consent Decree”) 1H1XIV, XV, ECF No. 693-45.
The decree set out certain milestones that had to be met before review of Ranbaxy’s Nexium ANDA would continue. Ranbaxy Causation SOF ¶ 36. The first of these milestones was met on May 4, 2012, when the FDA deemed that the Nexium ANDA was “substantially complete when filed,” triggering an audit process of the ANDA filing. Id. ¶ 40 . At this time, Ranbaxy began working on a site transfer amendment to move production from Paonta Sahib to a plant in Ohm, New Jersey, see id. ¶ 50 , which was submitted to the FDA on November 15, 2013, id. ¶ 51 .
The decree also set in place significant data integrity review protocols for evaluating applications from the Paonta Sahib facility. See Consent Decree ¶XVII (requiring the development and submission of internal review protocols, an internal review and audit plan, and an approved corrective action operating plan). If Ranbaxy has not completed these protocols by September 30, 2014, it will waive its 180-day generic Nexium marketing exclusivity. Id. ¶ XIII; see also Blume Report ¶ 64. To date, these protocols have not been completed. See Ranbaxy Causation Mem. 18-19.
2. Legal Standard: Antitrust Causation
In order for judgment to be entered in his or her favor, “[a]n antitrust plaintiff must prove that he or she suffered damages from an antitrust violation and that there is a causal connection between the illegal practice and the injury.” Sullivan, 34 F.3d at 1103 . The “Plaintiffs need not prove that the antitrust violation was the sole cause of their injury, but only that it was a material cause.” Engine Specialties, Inc. v. Bombardier Ltd., 605 F.2d 1, 14 (1st Cir.1979) (citing Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100 , 114 n. 9, 89 S.Ct. 1562 , 23 L.Ed.2d 129 (1969)). This “material” connection has been interpreted as a proximate cause requirement. See In re Neurontin Marketing & Sales Practices Litig., 712 F.3d 21, 35 (1st Cir.2013).
Complicating matters is the fact that in disputes like this one, an injury can have multiple independent causes — some stemming from, as alleged in this case, FDA regulatory actions, some from manufacturing problems, and some from anticompetitive behaviors. Judge Anita Brody of the Eastern District of Pennsylvania has articulated this analytical challenge well:
An antitrust violation can be the proximate cause of a plaintiffs injury even if there are additional independent causes of the injury. On occasion, however, an independent cause fully accounts for the plaintiffs alleged injury and breaks the causal connection between the alleged antitrust violation and the plaintiffs injury. When a defendant relies upon the existence of an independent cause, however, such cause must be examined closely to make sure that it is the independent cause, rather than the illegal *268 antitrust action, that gives rise to the plaintiffs injury.
In re Flonase Antitrust Litig., 798 F.Supp.2d 619, 627-28 (E.D.Pa.2011) (internal citations and quotation marks omitted).
In determining whether the act of a third party is an independent act of causation, courts are oriented by several key guideposts. First, drawing from the common law principles of proximate cause, courts have held that intervening conduct “does not sever the chain of causation where that [third-party] conduct was a foreseeable consequence of the original antitrust violation.” Id. at 619 . Second, injuries that are caused almost exclusively by the actions of government regulators do not give rise to antitrust liability. See RSA Media, Inc. v. AK Media Grp., Inc., 260 F.3d 10, 12-15 (1st Cir.2001) (holding that there was no antitrust liability because “[the Plaintiff] was not excluded from the market for outdoor billboards because' of [the Defendant’s] threats; it was excluded because of the Massachusetts regulatory scheme that prevents new billboards from being built”); see also In re Canadian Import Antitrust Litig., 470 F.3d 785, 791 (8th Cir.2006) (concluding that “[t]he absence of competition from Canadian sources in the domestic prescription drug market, therefore, is caused by the federal statutory scheme adopted by the United States government, not by the conduct of the [Defendants”).
In cases where governmental influence is not so pervasive, however, and the intervening governmental act followed from a defendant’s conduct in some way, liability may still attach. See In re Flonase, 798 F.Supp.2d at 629-30 ; see also Spear Pharms., Inc. v. William Blair & Co., LLC, 610 F.Supp.2d 278, 287 (D.Del.2009) (holding that the Defendant’s filing of a citizen petition with the FDA, which led to a delay in the approval of the Plaintiffs ANDA, was not so “highly unforeseeable” as to be a superseding cause); In re Dr. Reddy’s Labs., Ltd., No. 01 Civ. 10102(LAP), 2002 WL 31059289 , at *11 (S.D.N.Y. Sept. 13, 2002)-(holding that allegations that the Defendant submitted data to the FDA, knowing that the FDA would use that data to delay’ANDA review, satisfied proximate cause requirements for purposes of motion to dismiss).
Turning from general principles to a specific example, the causality question at issue here is whether a government agency would have approved a product earlier in time, but for certain allegedly anticompetitive events. The most on-point examination comes from Judge James Robertson of the United States District Court for the District of Columbia. In Twin Cities Bakery Workers Health and Welfare Fund v. Biovail Corporation, No. Civ. A. 01-2197(JR), Civ.A. 03-2075(JR), 2005 WL 3675999 (D.D.C. Mar. 31, 2005), aff'd sub nom., Meijer, Inc. v. Biovail Corp., 533 F.3d 857 (D.C.Cir.2008), Judge Robertson acknowledged that although a defendant can be held liable notwithstanding the independent gatekeeping actions of a government regulator, certain evidentiary thresholds must be met before a claim can be brought:
The subject matter of [the Plaintiffs experts’] declarations is whether or not, and when, the Food and Drug Administration would have made complex, discretionary, multi-layered, case-specific decisions relating to the initial approval and subsequent need to recall a prescription drug. [The expert’s] opinion is that the FDA would have approved Andrx’s ANDA on or about February 14, 2011 if Biovail had not listed the '463 patent in the Orange Book in January 2001.... These opinions are unaccompanied by data that demonstrate their reli *269 ability — no examples of the time lines by which the FDA has approved the ANDAs of other drug manufacturers, no personal experience of predicting what the FDA might do that proved to be correct.... The experts’ declarations are too speculative to forge the chain of causation plaintiffs’ proof of damages requires.
Id. at *4-5. Such evidentiary sufficiency is particularly important, he observed, when the jury must believe chains of inferences in order to find damages. See id. at *5 (“[W]hat plaintiffs have offered on the critical question of what Andrx would have done is either a broken link in the chain of causation, or a very weak one. It takes more than a scintilla of evidence to survive summary judgment. ‘The greater number of uncertain links in a causal chain, the less likely it is that the entire chain will hold true.’”) (internal citation omitted) (quoting Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 670 (D.C.Cir.1996) (en banc)). If there are “fatal gaps” in the evidence introduced to prove the plaintiffs causal chain, summary judgment is appropriate. Kearney v. Philip Morris, Inc., 916 F.Supp. 61, 66 (D.Mass.1996) (Keeton, J.).
Particularly at the summary judgment stage, however, these principles must be tempered by a final consideration: that “[t]he issues of proximate causation and superseding cause involve application of law to fact, which is left to the factfinder, subject to limited review.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 840-41 , 116 S.Ct. 1813 , 135 L.Ed.2d 113 (1996). Indeed, the First Circuit has held that “[c]ausation questions of this sort are normally grist for the jury’s mill.” Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 837 (1st Cir.1990); see also Wortley v. Camplin, 333 F.3d 284, 295 (1st Cir.2003) (“Proximate causation and intervening cause are usually issues for the jury to resolve.”).
Thus, to distill these cases, summary judgment on questions of causality is not appropriate where the plaintiff was injured by intervening conduct proximately caused by the defendant’s antitrust action, or where such intervening conduct was a foreseeable consequence of the defendant’s antitrust action. Summary judgment is appropriate, however, where there is insufficient proof of causation, of where the intervening conduct was independently caused by a government actor.
3. Analysis
At its core, Ranbaxy’s argument is simple: because Ranbaxy would not, under any circumstance, have been able to launch a generic version of Nexium before May 27, 2014, its settlement agreement with AstraZeneca (and the allegedly anticompetitive consequences) cannot have been a proximate cause of the Plaintiffs’ injuries. In so arguing, Ranbaxy points to FDA approval and litigation barriers that would have delayed its generic launch. See Def. Ranbaxy’s Mem. Law. Supp. Mot. Summ. J. Due Lack Causation (“Ranbaxy Causation Mem.”) 10-13, ECF No. 643. The Plaintiffs, in turn, argue that Ranbaxy’s settlement caused it to purposely delay addressing the regulatory issues that would have paved the way to generic launch. See Direct Purchaser Class & End-Payor Class Pis.’ Opp’n Ranbaxy’s Mot. Summ. J. Due To Lack Of Causation (“Pis.’ Ranbaxy Causation Opp’n”) 2, E'CF No. 791.
The Court must determine whether a reasonable jury could find that Ranbaxy would have overcome regulatory and other hurdles to enter the market before May 27, 2014, if it had not entered its settlement with AstraZeneca. If Ranbaxy would not have overcome such hurdles, *270 then these obstacles were independent causes of Ranbaxy’s delayed launch and thus break the causal chain between the Ranbaxy Settlement and the Plaintiffs’ injuries. Analyzing this issue requires looking at two separate questions: absent the Ranbaxy Settlement, did Ranbaxy have the “will” to enter the market before 2014, and was there a “way” for it to enter had the agreement allowed for earlier entry, considering both manufacturing and FDA approval requirements? The Court discusses these two issues in turn.
a. Ranbaxy’s Willingness to Launch Generic Nexium Before May 27, 2014
According to the Plaintiffs, while Ranbaxy wanted to launch a generic Nexium product before May 2014, it deliberately slowed or stopped its efforts in response to its settlement with AstraZeneca. First, the Plaintiffs point to the fact that during settlement negotiations, Ranbaxy initially proposed a market entry date of 2012, indicating its desire to come to market earlier than 2014. Id. at 8. The Plaintiffs further posit that Ranbaxy ultimately ceded to AstraZeneca’s May 27, 2014, entry date in exchange for AstraZeneca’s agreement to refrain from selling its own authorized generic during Ranbaxy’s exclusivity period and the various Side Agreements explained earlier in this opinion. Id. at 8-9. Second, the Plaintiffs point to evidence showing that Ranbaxy responded to its settlement with AstraZeneca by slowing its efforts to launch its generic product. For example, deposition testimony given by Ranbaxy’s Director of North American Operations showed that after the settlement, because Ranbaxy believed it would “be getting an approval in 2014,” it saw no need to proceed with generic Nexium preparatory strategies at an earlier time. See Pis.’ Ranbaxy Causation SOF ¶ 13.
While this evidence is far from conclusive, it supports a reasonable inference that Ranbaxy curtailed its activities in light of the entry date it had negotiated with AstraZeneca, as well as a reasonable inference that had the agreement not been in place, Ranbaxy would have had the will to enter the market sooner.
b. Ranbaxy’s Ability to Enter the Generic Market Before May 27, 2014
The harder question is, even if Ranbaxy had the “will,” did it have the “way”?
Ranbaxy says no, relying on the basic uncontroverted fact that in the years leading up to May 2014, quality control problems at its Paonta Sahib facility made it impossible to lawfully market generic Nexium manufactured at that site. See generally id. ¶¶ 15-27. Ranbaxy maintains that it could never have obtained FDA approval to transfer production to another facility before 2008, and that it was “highly unlikely” that it would have been able to do so before May 27, 2014. Ranbaxy Causation Mem. 3. The Plaintiffs contend that not only did Ranbaxy have capacity at its Ohm, New Jersey plant to manufacture generic Nexium, but also that it could have received approval to site transfer its production facilities well before 2014. See generally Pis.’ Ranbaxy Causation Opp’n 10-12.
Regarding Ranbaxy’s capacity to produce generic Nexium outside of Paonta Sahib, the Plaintiffs look to Ranbaxy and AstraZeneca’s Supply and Tolling Agreements, under which Ranbaxy agreed to supply AstraZeneca with esomeprazole magnesium and capsules for branded Nexium. In 2008, at the time of settlement, Ranbaxy warranted to AstraZeneca that it had “ ‘the ability and desire to custom manufacture and formulate’ [branded] Nexium out of its Ohm facility and ‘there is no matter or impediment which would *271 prevent Ohm from performing, or would restrict or hinder Ohm in the performance of its obligations.’ ” Pis.’ Ranbaxy Causation SOF ¶ 13. To make good on its agreement, Ranbaxy “ramp[ed] up” its manufacturing processes and obtained FDA approval to transfer AstraZeneca’s technology to Ranbaxy’s facilities. Id. The Plaintiffs argue that because branded and generic Nexium “[b]oth have the same active ingredient, the same milligram strength, and the same route of administration, and are bioequivalent,” Pis.’ Ranbaxy Causation Opp’n 12 n. 48, Ranbaxy’s ability to supply AstraZeneca with brand Nexium materials meant that Ranbaxy also had the technical capacity to manufacture generic Nexium in its Ohm-based plant prior to 2014. See id. at 12.
This evidence is far from conclusive. But the demonstrated ability of Ranbaxy to manufacture a nearly identical product to generic Nexium as early as 2008 is more than a “scintilla of evidence” in the Plaintiffs’ favor. Twin Cities Bakery, 2005 WL 3675999 , at *5. The Plaintiffs, therefore, meet the summary judgment threshold on the prerequisite question of whether Ranbaxy physically could have manufactured the product at the Ohm plant before 2014. See Anderson, 477 U.S. at 252 , 106 S.Ct. 2505 .
The more complicated and contentious question is whether Ranbaxy could have received final FDA approval of its generic Nexium ANDA in time to launch before May 27, 2014) Ranbaxy maintains that it could not have done so under any circumstance, while the Plaintiffs present three counterfactual scenarios, each of which purportedly would have led to Ranbaxy’s generic launch before May 27, 2014: (1) Ranbaxy declines to settle, gains final FDA approval before February 2009, and launches generic Nexium at risk while its litigation pends, (2) Ranbaxy enters into a settlement agreement with AstraZeneca for an earlier negotiated entry date and wins final FDA approval at some time between February 2009 and January 2012, and (3) Ranbaxy enters into a settlement agreement with AstraZeneca for an earlier negotiated entry date and wins FDA approval after January 2012, but before May 2014. 6 Under any of these purportedly likely scenarios, the Plaintiffs argue, Ranbaxy would have come to market well before May 27, 2014.
i. First Scenario: No Settlement Agreement
The Plaintiffs posit that if Ranbaxy had never settled its litigation with AstraZeneca, it would have obtained FDA approval to transfer generic Nexium production away from Paonta Sahib before February 2009, when the FDA’s February 2009 AIP froze the ANDA approval process. The Plaintiffs further assert that the company would have then launched generic Nexium at risk- — that is, in spite of the possibility of losing its pending patent infringement case to AstraZeneca. Pis.’ Ranbaxy Causation SOF ¶ 7.
The Plaintiffs point out that by November 19, 2007, Ranbaxy knew that it could not win final approval to produce generic Nexium at Paonta Sahib. See Pis.’ Ranbaxy Causation SOF ¶ 18. They also suggest that it would have taken six months for Ranbaxy to prepare and submit a site transfer amendment request, extrapolating from the fact that Ranbaxy actually did take six months to prepare such a request in 2013. Pis.’ Ranbaxy Causation Opp’n *272 14; see also Ranbaxy Causation Mem. 12. This implies that the FDA would have received Ranbaxy’s application as early as mid-May 2008.
More importantly, this timeline also implies that the agency-would have granted approval for a site transfer within nine months. The Plaintiffs’ expert, Dr. Blume, estimates that “it would have taken approximately six months from submission of the amendment” for the FDA to approve the site transfer. Pis.’ Ranbaxy Causation SOF ¶ 43. To support that conclusion, she notes that in actuality, Ranbaxy submitted its amendment in November 2013 and expected FDA approval by May 2014, a period of approximately six months. Id. The Plaintiffs analogize more generally to examples of other Ranbaxy ANDA site transfers from Paonta Sahib to Ohm, see Blume Report ¶ 81 (referencing pravastatin sodium, where a site-transfer amendment was approved six months after submission, and generic Lipitor, where a site-transfer amendment was approved two years after submission), and to examples of site transfers between other Ranbaxy facilities, id. ¶¶ 82-84 (referencing Valtrex, 25 and 50 mg Imitrex, and 100 mg Imitrex, where site transfer approvals were granted between three and nine months from submission).
What is missing here is direct evidence that the FDA was likely to grant final approval to Ranbaxy’s generic Nexium product within the proposed timeline. The Plaintiffs’ argument is limited to referencing Ranbaxy’s 2013 site transfer amendment process. This is not an unreasonable comparator, but the Plaintiffs do not discuss, for example, whether changes at Paonta Sahib or changes to the FDA’s site transfer review process between 2008 and 2013 might account for differences in the speed of agency approval. Such context is crucial to understanding how reasonable it would be to infer that site transfer approval would have taken the same time in 2008 as it did in 2013. Moreover, while Dr. Blume’s report does provide examples of other speedy approval timelines, see Blume Report ¶ 81, these examples are of limited value, because Dr. Blume does not analyze how they are similar to, or differ from, the case of generic Nexium. See, e.g., British Telecomm’ns PLC v. Coxcom, Inc., Nos. 10-658-SLR, 11-8430SLR, 9 F.Supp.3d 423 , 2014 WL 119077 (D.Del. Jan. 13, 2014) (giving little weight at summary judgment to an expert report which “contain[s] conclusory opinions, without analysis or reliance on evidence”), vacated on other grounds, 2014 WL 1364853 . This hypothetical timeline comes perilously close to the kind of “improbable inferences or unsupported speculation” which cannot support a nonmovant’s opposition to summary judgment. Travers v. Flight Services & Systems, Inc., 737 F.3d 144, 145 (1st Cir.2013).
Moreover, even if the Plaintiffs’ evidence is sufficient on this point, they must meet their evidentiary burden as to a second key proposition — that, absent settlement, Ranbaxy would have launched generic Nexium at risk. This premise is almost entirely unsupported by evidence, and indeed, there is direct, undisputed evidence stating the opposite.
For its part, Ranbaxy offers evidence that it “never” would have launched generic Nexium at risk. Ranbaxy Causation SOF ¶ 53 (quoting the deposition testimony of a Ranbaxy executive that generic Nexium is so valuable that the potential liability damages of launching at risk “could wash away the company”). It also points to contemporaneous industry reports concluding “that an at risk launch was ‘unlikeljf and ‘extremely risky.’ ” Id. ¶ 55.
*273 The Plaintiffs do not rebut this statement directly, instead stating in general terms that Ranbaxy would have had an incentive to proceed at risk “[b]eeause of the enormous financial incentives attached to a generic Nexium launch.” 7 Blume Report ¶ 67. They also point to internal projections showing that Ranbaxy had, at one point, plans to market generic Nexium in the second or third quarter of 2008. Pis.’ Ranbaxy Causation SOF ¶ 7. That period marks the earliest time Ranbaxy could have launched at risk, as it approximates the April 2008 end of the Hatch-Waxman 30-month litigation stay on final FDA approval. Id,.; see 21 U.S.C. § 355 (j)(5)(B)(iii). This, the Plaintiffs argue, is evidence that the company would have been willing to launch at risk. Ranbaxy responds that these forecasts were “placeholder date[s]” that do not represent plans to launch at risk, Ranbaxy Causation SOF ¶ 54 — a fact the Plaintiffs deny without explanation, Pis.’ Ranbaxy Causation SOF ¶ 54, leaving their case largely to rest on the type of “conclusory allegations, improbable inferences, and unsupported speculation,” that the First Circuit directs this Court to ignore. Travers, 737 F.3d at 146 . Given these weaknesses, the Court cannot conclude that the Plaintiffs have met their burden under this potential scenario.
ii. Second Scenario: Entry Between February 2009 and January 2012 8
The Plaintiffs posit in the alternative that even if Ranbaxy and AstraZeneca had settled, Ranbaxy would have found a way to overcome regulatory hurdles and come to market earlier than May 27, 2014, if it had negotiated an earlier entry date. The Plaintiffs state that under an earlier entry date permitting entry after the February 2009 AIP but before January 2012, when the FDA issued its formalized consent decree setting out milestones for Ranbaxy to achieve ANDA approval, Ranbaxy would have come to market as early as December 2010. See Blume Report ¶ 33. In this world, Ranbaxy would not have had to worry about launching at risk, but it would have had to overcome the significant hurdle presented by the FDA’s AIP.
According to the Plaintiffs, the FDA likely would have granted Ranbaxy an exception to the Paonta Sahib AIP “in the interests of public health,” paving the way for final FDA approval of Ranbaxy’s generic Nexium product. Pis.’ Ranbaxy Causation SOF ¶ 30. Ranbaxy counters that “the grant of [such] an exception is extremely rare,” Ranbaxy Causation Mem. 17, and points out that in fact, the FDA still has not granted an AIP exception to its generic Nexium ANDA, nor has the agency granted any of Ranbaxy’s ten other AIP exception requests, Ranbaxy Causation SOF ¶ 30.
To support their proposed counterfactual scenario, the Plaintiffs rely heavily on the fact that the FDA granted an AIP exception for Ranbaxy’s generic Lipitor product, which they purport is analogous to generic Nexium. Pis.’ Ranbaxy Causation SOF ¶ 27. They lay out some similarities, like that generic Nexium and Lipitor are produced in the same facilities, and that the drugs present similar first-to-file pressures. The Plaintiffs assert that the primary difference between the two drugs is that in the case of generic Lipitor, which *274 had an agreed-upon launch date of November 30, 2011, the FDA and Ranbaxy negotiated a regulatory compromise that would allow Ranbaxy to launch generic Lipitor if it took corrective actions by a certain deadline, and force Ranbaxy to relinquish its first filer status if it missed that deadline. Pis.’ Mem. 18 & n. 75; see Pis.’ Ranbaxy Causation SOF ¶ 27. The Plaintiffs posit that if generic Nexium had been subject to an earlier entry date than May 27, 2014, the FDA and Ranbaxy would have negotiated a similar compromise.
The Plaintiffs do not, however, discuss the similarities and differences between Nexium and Lipitor in any depth, and no further primary evidence was offered at this stage showing why generic Nexium independently would have satisfied the public health exception to the AIP. Nor do the Plaintiffs discuss what

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7226305. Public record. Not legal advice.