Full opinion text
ORDER NO. 12 MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS EDMUNDS, District Judge. Defendant Hoechst Marion Roussel, Inc. (“HMRI”), a wholly owned subsidiary of Defendant Hoechst Aktiengesellschaft (“Hoechst AG”), is the manufacturer of the brand name prescription heart drug Car-dizem CD which consists of a once-daily dosage of the chemical compound diltiazem hydrochloride. Cardizem CD is widely prescribed for the treatment of chronic chest pains (angina), high blood pressure (hypertension), and for the prevention of heart attacks and strokes. Until June 23, 1999, when Defendant Andrx Pharmaceuticals, Inc. (“Andrx”) began to sell Cartia XT, the first generic bioequivalent to Car-dizem CD, Defendant HMRI had a monopoly in the $700-million-plus annual United States market for Cardizem CD and its generic bioequivalents. These cases involve claims that the Defendants violated section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and various state antitrust and unfair competition statutes. Plaintiffs allege the following contract, combination or conspiracy in restraint of trade: Defendant Andrx developed a generic drug which is the bioequivalent to the Hoechst Defendants’ prescription drug Cardizem CD. Andrx’s generic drug was approved by the FDA for sale and could have entered the U.S. market on or about July 9, 1998. Andrx, however, did not enter the market at that time because it had agreed with its horizontal competitor, HMRI, that it would delay the entry of its generic version of Cardizem CD in exchange for, inter alio, non-refundable payments of $40 million per year from HMRI. Plaintiffs allege that this agreement is embodied in a September 24, 1997 document executed by Defendants HMRI and Andrx (the “HMRI/Andrx Agreement”). The HMRI/Andrx Agreement was executed eight days after the FDA preliminarily approved Defendant Andrx’s generic drug as the first AB-rated generic bioequi-valent for Cardizem CD. It is alleged that, under the terms of the Agreement, Defendant Andrx agreed not to market its generic drug when it received FDA approval and not to transfer, assign, or relinquish its right to a 180-day exclusivity period that Andrx would enjoy once it finally did begin to market its generic version of Car-dizem CD, and Defendant HMRI paid Andrx $89.88 million, beginning on the date the Andrx product received FDA approval. Thus, it is alleged that the HMRI/ Andrx Agreement not only protected HMRI from competition from Andrx, but it also protected HMRI from competition from other generic competitors because Andrx agreed not to give up its FDA first-filer status, thus blocking and delaying other drug manufacturers from introducing generic versions of Cardizem CD in the United States market; i.e., Andrx’s delayed entry would postpone the start of its 180-day exclusivity period, and Andrx’s agreement not to give up or transfer its right to that 180-day period of exclusivity would preclude other generic competitors from entering the market until that 180-day exclusivity period expired. After these actions were first filed in August 1998, Defendants’ HMRI/Andrx Agreement was widely publicized in the media, was condemned by public officials and health care payors injured by Defendants’ acts, and was investigated by the FTC. As a result, Plaintiffs’ allege that, in June 1999, HMRI and Andrx terminated their Agreement, settled their patent infringement action, and Andrx began to market Cartia XT, its generic version of Cardizem CD. In addition to the above, it is also alleged that Defendants have engaged in a continuing pattern of unlawful anticompeti-tive conduct to delay the introduction of generic bioequivalent versions of Cardizem CD in the United States. The targets have included, at varying times, co-Defendant Andrx, and Hoechst AG’s former joint venture partner, Biovail International Corporation (“Biovail”). The alleged pattern includes the Hoechst Defendants’ filing and continued prosecution of a baseless patént infringement action, breached agreements with Biovail, false misrepresentations made to the United States Food & Drug Administration (“FDA”), and manipulation of a Consent Decree with the United States Federal Trade Commission (“FTC”) which was designed to prevent the anticompetitive trade practices which are the subject of Plaintiffs’ suits. This matter is now before the Court on numerous motions brought by Defendants requesting dismissal of Plaintiffs’ complaints in this multidistrict antitrust litigation pursuant to Rules 12(b)(2) and (12)(b)(6) of the Federal Rules of Civil Procedure. At issue are: (1) State Law Plaintiffs’ Coordinated First Amended Class Action Complaints alleging that Defendants HMRI, Hoechst AG, and Andrx committed a per se violation of various state antitrust laws and were unjustly enriched in violation of various states’ common laws; (2) Sherman Act Class Plaintiffs’ Consolidated Amended Class Action Complaint alleging a section 1, Sherman Act violation against Defendants HMRI and Andrx under either a per se or rule of reason analysis of the reasonableness of the Defendants’ alleged restraint of competition; (3) Individual Sherman Act Plaintiffs’ Amended Complaint brought by the Kroger Co., Albertson’s, Inc., the Stop & Shop Supermarket Co., Eckerd Corporation, Walgreen Co. and Hy-Vee, Inc. against Defendants HMRI and Andrx alleging a per se violation of section 1 of the Sherman Act; and (4) Individual Sherman Act Plaintiffs’ Complaint brought by Plaintiffs CVS Meridian, Inc. and Rite Aid Corporation against Defendants HMRI and Andrx alleging a violation of section 1 of the Sherman Act under either a per se or rule of reason analysis. For the reasons stated below, this Court DENIES: (1) Defendant Hoechst AG’s motion to dismiss the Minnesota action (Aetna U.S. Healthcare, No. 99-73329) for lack of personal jurisdiction and failure to state a claim; (2) Defendant Hoechst AG’s motion to dismiss the Tennessee action (Larry S. Sizemore, No. 99-73345) for lack of personal jurisdiction and failure to state a claim; (3) Defendant HMRI’s motion to dismiss the Sherman Act Class Plaintiffs’ Amended Complaint (Louisiana Wholesale, No. 99-73259, and Duane Reade, No. 99-73870); (4) Defendant HMRI’s motion to dismiss Sherman Act Individual Plaintiffs’ Amended Complaint (Kroger, et al., No. 99-73735); (5) Defendant HMRI’s motion to dismiss Sherman Act Individual Plaintiffs’ Complaint (CVS Meridian and Rite Aid Corp., No. 99-75036); (6) Defendant HMRI’s motion to dismiss State Law Plaintiffs’ Coordinated First Amended Complaints (Nos. 99-75070, 99-73422, 99-73412, 99-73871, 99-74262, 99-73667, 98-74043, 99-73239, 99-73845, 99-73713, 99-74377, 99-73190, 99-73345, 99-73981, and 99-73666); (7) Defendant Andrx’s motion to dismiss the Coordinated “Indirect Purchaser” Complaints (Nos. 98-74043, 99-75070, 99-73422, 99-73412, 99-73871, 99-74262, 99-73239, 99-73667, 99-73845, 99-73713, 99-74377, 99-73190, 99-73345, 99-73981, and 99-73666); and (8) Defendant Andrx’s motion to dismiss the Consolidated “Direct Purchaser” Complaint and the two additional “Direct Purchaser” Complaints (Nos. 99-73870, 99-73259, 99-73735, and 99-75036). I. Facts A. The Parties 1. Defendants a. Hoechst Defendants On or about June 25, 1995, Defendant Hoechst AG bought Marion Merrell Dow, Inc. (“Dow”), a major pharmaceutical company. Dow’s best-selling prescription drug product was Cardizem CD. After the acquisition, Dow’s name was changed to HMRI. HMRI is responsible for developing, distributing, advertising and selling Cardizem CD throughout the United States. HMRI is an indirectly wholly owned subsidiary of Hoechst AG, a German company, whose stock is publicly traded on the Frankfurt Stock Exchange and until November 26, 1999 was traded on the New York Stock Exchange. Hoechst AG is a 96% owned, direct subsidiary of Aventis, a French corporation, which prior to December 15, 1999, was named Rhone-Poulenc, S.A. Aventis stock is publicly traded on the Frankfurt Stock Exchange, the Paris Bourse, and the New York Stock Exchange. State Law Plaintiffs sue both Hoechst Defendants. All other Plaintiffs sue only HMRI. b. Andrx Andrx develops, manufactures and markets controlled-release drugs. It has developed a generic bioequivalent to Cardizem CD, recently marketed under the trade name of Cartia XT. Andrx’s generic version of Cardizem CD was preliminarily approved by the FDA for sale in the U.S. in 1997, was given final FDA approval in July 1998, and was licensed for sale in Canada during the alleged class periods. Plaintiffs allege that, pursuant to the illegal HMRRAndrx Agreement, the Hoechst Defendants paid Andrx $89.83 million not to sell its generic version of Cardizem CD in the U.S. before June 1999 and to use its FDA first filer status to block other manufacturers from introducing generic Cardizem CD in the U.S. 2. Plaintiffs a. State Law Plaintiffs Plaintiffs are indirect purchasers of Car-dizem CD or Cartia XT in Alabama, California, D.C., Illinois, Michigan, Minnesota, New York, North Carolina, Tennessee, and Wisconsin. Plaintiffs claim violations of the antitrust and consumer protection statutes in eight of the states (California, D.C., Michigan, Minnesota, New York, North Carolina, Tennessee and Wisconsin) and seek recovery based on common law claims of unjust enrichment in all ten states. Plaintiffs bring their respective actions on behalf of state-wide indirect-purchaser classes defined as (1) all persons and entities who Or which have paid and/or co-paid pharmacies in the Indirect Purchaser States for Cardizem CD and Cartia XT dispensed pursuant to doctors’ prescriptions; and (2) in Alabama, California and New York, separate classes of retail pharmacies located in such Indirect Purchaser States which have purchased Car-dizem CD or Cartia XT for resale to individual users of Cardizem CD and Cartia XT during the Conspiracy Class Period or Monopolization Class Period. b. Sherman Act Class Plaintiffs Plaintiffs Louisiana Wholesale Drug Co., Inc., Duane Reade, Inc., and Kinray, Inc., bring this action alleging a violation of section 1 of the Sherman Act on behalf of themselves and as representatives of a class defined as “all persons, or assignees of such persons, who have directly purchased Cardizem CD from Hoechst at any time during the period July 9, 1998 through and after the date hereof until the effects of Defendants’ illegal contract, combination or conspiracy cease” (Complaint, ¶ ll). Plaintiff Louisiana Wholesale is a Louisiana corporation that has purchased the prescription drug Cardizem CD directly from Hoechst during the class period. Plaintiff Duane Reade is a publicly held corporation organized under Delaware laws and has its principal place of business in New York, New York. During the class period, Duane Reade purchased annually between $500,000 and $800,000 of Cardiz-em CD from Defendant HMRI through its wholesaler Kinray, Inc. Duane Reade is the assignee of Kinray, Inc.’s antitrust claims with respect to these Cardizem CD purchases from Defendant HMRI. Plaintiff Kinray, Inc. is a New York Corporation with its principal place of business in Whitestone, New York. It purchased Car-dizem CD directly from Defendant HMRI and sold it to Duane Reade during the class period. Kinray has assigned its antitrust claims with respect to these purchases to Duane Reade. c. Individual Sherman Act Plaintiffs There are two Individual Sherman Act actions and two different sets of Individual Sherman Act Plaintiffs. The first action, No. 99-78735,. is brought by the following Plaintiffs who own and operate retail stores in several states where prescription drugs are dispensed to the public and who purchased Cardizem CD directly from Defendant HMRI during the relevant time period: (1) The Kroger Co., an Ohio corporation with its principal place of business in Ohio; (2) Albertson’s Inc., a Delaware corporation with its principal place of business in Idaho; (3) The Stop & Shop Supermarket Co., a Delaware corporation with its principal place of business in Massachusetts; (4) Eckerd Corporation, a Delaware corporation with its principal place of business in Florida; (5) Walgreen Co., an Illinois corporation with its principal place of business in Illinois; and (6) Hy-Vee, Inc., an Iowa corporation with its principal place of business in Iowa. Plaintiffs Eckerd, Walgreen, and Hy-Vee also bring this action as an assignee of their pharmaceutical wholesalers with respect to those companies’ purchases of Cardizem CD directly from Defendant HMRI that were subsequently resold to them during the relevant time period. The second Individual Sherman Act case, No. 99-75036, is brought by two Plaintiffs: (1) CVS Meridian, Inc., a New York corporation with its principal place of business in Rhode Island; and (2) Rite Aid Corp., a Delaware corporation with its principal place of business in Pennsylvania. Each Plaintiff purchases substantial quantities of pharmaceutical products and other goods for resale to the public, and, during the relevant time period, purchased Car-dizem CD from Defendant HMRI through wholesalers who have assigned their antitrust claims with respect to these purchases to Plaintiffs. B. Relevant Statutory and Regulatory Framework The manufacture and distribution of pharmaceutical drugs are regulated by the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301, et seq. (1994). Congress passed the “Hatch-Waxman Amendments” to the Act in 1984 after concluding that the Act’s “cumbersome drug approval process delayed the entry of relatively inexpensive generic drugs into the market place.” Mylan Pharmaceuticals, Inc. v. Shalala, 81 F.Supp.2d 30, 32 (D.D.C.2000). The Hatch-Waxman Amendments, 21 U.S.C § 355 (1994), embody Congress’ intent “to make available more low cost generic drugs” and its attempt “to balance two conflicting policy objectives: to induce name-brand pharmaceutical firms to make the investments necessary to research and develop new drug products, while simultaneously enabling competitors to bring cheaper, generic copies of those drugs to market.” Id. (internal quotes and citations omitted). “[T]he Hatch-Waxman Amendments established new guidelines for the approval of generic drugs. Generic drug makers were permitted to file an Abbreviated New Drug Application (‘ANDA’) which incorporated data that the ‘pioneer’ manufacturer had already submitted to the FDA regarding the pioneer drug’s safety and efficacy. In order to obtain FDA approval, the ANDA must demonstrate, among other things, that the generic drug is ‘bioequiva-lent’ to the pioneer drug. 21 U.S.C. § 355(j)(2)(A)(iv). As protection for pioneer drug makers, the applicant is also required to certify in one of four ways that the generic drug will not infringe on any patent which claims the pioneer drug. See id. at § 355(j)(2)(A)(vii).” Mylan Pharmaceuticals, 81 F.Supp.2d at 32. Applicable here is the fourth type of certification. Paragraph IV certification “permits the applicant to allege that the patent for the pioneer drug is either invalid or will not be infringed by the marketing of the generic drug. See id. at § 355(j)(2)(A)(vii)(IV).” Mylan Pharmaceuticals, 81 F.Supp.2d at 32. As the District Court for the District of Columbia recently observed, “[a] generic drug manufacturer’s filing of a so-called ‘Paragraph IV’ certification has important legal ramifications. It automatically creates a cause of action for patent infringement. Upon receiving notice of a Paragraph IV certification’s filing, the patent holder or pioneer manufacturer has 45 days within which to file suit against the generic manufacturer. See id. at § 355(j)(5)(B)(iii). If such an action is brought, the FDA cannot approve the generic manufacturer’s ANDA for 30 months. See id. However, if the court hearing the infringement action rules before the expiration of the 30-month period that the patent at issue is ‘invalid or not infringed,’ then ‘the approval shall be made effective on the date of the court decision[.]’ Id. at § 355(j)(5)(B)(iii)(I).” Mylan Pharmaceuticals, 81 F.Supp.2d at 32-33. To encourage competitors to bring cheaper generic drugs to market, and acknowledging that they will likely incur “potentially substantial litigation costs associated with challenging pioneer drug makers’ patents, the Hatch-Waxman Amendments provide an added incentive for generic drug producers to file Paragraph IV certifications. The first generic manufacturer to file an ANDA containing a Paragraph IV certification with respect to a specific patent is awarded a 180-day period of exclusive marketing rights for a generic version of the drug claimed by that patent. In other words, no other ANDA for the same generic drug product will be approved during those 180 days.” Id. at 33. Section 355(j)(5)(B)(iv) provides that: Id. (quoting 21 U.S.C. § 355(j)(5)(B)(iv)). Accordingly, the 180-day period of exclusivity “can be triggered in one of two ways — either (1) when the generic producer begins commercial marketing of its drug (the ‘commercial marketing trigger’), or (2) when there is a court decision finding the pioneer drug maker’s patent invalid or not infringed (the ‘court-decision trigger’).” Mylan Pharmaceuticals, 81 F.Supp.2d at 33 (footnote omitted). If the [ANDA] contains a certification described in [Paragraph IV] and is for a drug for which a previous application has been submitted under this subsection [containing a Paragraph IV] certification, the application shall be made effective not earlier than one hundred and eighty days after— (I) the date the Secretary receives notice from the applicant under the previous [ANDA] of the first commercial marketing of the drug under the previous [ANDA], or (II) the date of a decision of a court in an action described in clause (iii) holding the patent which is the subject of the certification to be invalid or not infringed, whichever is earlier. C. Background 1. Cardizem CD In 1982, Marion Merrell Dow (“Dow”), HMRI’s predecessor, introduced the pioneer drug in the United States containing diltiazem hydrochloride as an active ingredient for treating hypertension and angina. This drug used an immediate release delivery method and was patented and sold under the brand name “Cardizem.” The problem with immediate release drugs is that they do not provide for a continuing and slow release of a drug into the patient’s bloodstream, so Cardizem patients had to take three or four doses a day. Some patients would forget a dose and this in turn would cause undesirable fluctuations in diltiazem concentrations in the blood. To remedy this problem, Dow introduced an improved, twice-a-day product called “Cardizem SR” in 1989. In 1992, Dow introduced its once-a-day diltiazem hydrochloride formulation under the name Cardizem CD. Cardizem CD’s single administration of diltiazem hydrochloride is based on a sustained-release delivery method patented by Elan Corp., P.L.C. (“Elan”), an Irish company. Dow and Carderm Capital L.P., a limited partnership, were the licensees of Elan’s U.S. patents for sustained release delivery and absorption of Cardizem CD. Cardizem CD quickly replaced Cardizem SR as the most popular hydrochloride product in the U.S. The U.S. patent on the compound dil-tiazem hydrochloride, the active ingredient in Cardizem CD, originally expired in February 1988 but was extended by legislation until November 1992. Thus, it is alleged that after November 1992, Dow for the first time began to face the threat of competition from generic pharmaceutical manufacturers. (State Law Plfs. Complt. ¶ 58). 2. Development of Generic Bioequi-valent — Biovail As the Eighth Circuit recently observed, “[djiltiazem was a pioneer new drug, which means that the Cardizem products enjoyed a ten-year period of market exclusivity under the Hatch-Waxman amendments to the Food, Drug, and Cosmetics Act.” Rhone-Poulenc Rover Pharm., Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511, 513 (8th Cir.1996). “Cardizem products were immensely successful, generating sales of $1.1 billion in 1992 alone. By the early 1990’s, competing drug manufacturers were anxious to penetrate the diltiaz-em market with less costly alternatives.” Id. In 1993, Biovail, a Canadian corporation, was in the process of developing a bioequi-valent formulation of once-daily diltiazem hydrochloride (“QD Diltiazem”) to compete with Cardizem CD. In June 1993, Hoechst AG, through its subsidiary Hoechst-Rous-sel Pharmaceuticals, Inc. (“HRP”), entered into an Agreement with Biovail for the joint development and exploitation of QD Diltiazem drugs which HRP and Biovail intended to sell under the trademark “Tia-zac.” Tiazac, like Cardizem CD, is administered once a day and provides the patient with diltiazem hydrochloride in the bloodstream throughout the day. (¶¶ 59-62). HRP filed a New Drug Application (NDA) for Tiazac with the FDA certifying its safety and effectiveness. On September 30, 1993, HRP gave notice to Dow and Carderm of HRP’s NDA and certified that HRP’s submission of its NDA to the FDA did not constitute an act of infringement of the Elan-licensed patents. Dow and Car-derm responded on November 11, 1993 with a patent infringement lawsuit in the District of New Jersey which HRP characterized as frivolous. The filing of this suit served to stay HRP’s NDA for 30 months. In late 1994, Hoechst (parent of HRP) agreed to acquire Dow and HRP terminated its joint venture with Biovail. After the acquisition, Dow became HMRI. (¶¶ 63-69). In April 1995, Biovail sued Hoechst and others for breach of contract and antitrust violations, and Hoechst, Dow and Biovail then entered into a Settlement Agreement and Release resolving the pending Dow/ HRP patent infringement action and the Biovail litigation against Hoechst and others. As part of the Settlement Agreement, Dow (HMRI’s predecessor) agreed not to “initiate any regulatory proceedings or legal actions challenging or contesting in any manner whatsoever the Product, infringement relating to the Product or regulatory approvals of the Product now or in the future.” “Product” was defined to include Tiazac and “any improvements thereto or any formulation thereof alone or in combination with at least one other active ingredient.” Biovail was also assigned the rights to the NDA for Tiazac previously filed by HRP. (¶¶ 70-73). Subsequently, the FTC investigated the proposed acquisition of Dow by Hoechst, and that investigation was settled when the parties agreed to enter into a Consent Order that was proposed on September 26, 1995 and became final on April 17, 1996. That Consent Order contained an express provision requiring that the Hoechst Defendants give Biovail a letter of reference to the toxicology data filed with the FDA in support of Dow’s NDA covering Cardiz-em CD. Specifically, the FTC Consent Order compelled the Hoechst Defendants to “make the necessary filings with the FDA authorizing the FDA to refer to the appropriate section(s) of Dow’s [now HMRI’s] NDA No. 18-602 for such data (including, but not limited to, pharmacology and toxicology data) in support of Biovail NDA No. 20-401 for Biovail Diltiazem Products, including any supplemental NDAs or related NDAs.” (¶¶ 74-78). “Biovail Diltiazem Products” were defined in the FTC Consent Order as “the sustained release and/or extended release diltiazem products that Hoechst was developing with Biovail pursuant to the Rights Agreement that Hoechst and Biovail entered into on June 30,1993.” (¶ 79). On December 18, 1995, HMRI wrote to the FDA authorizing Biovail to reference the data discussed in the Consent Order “in support of Biovail’s NDA No. 20401 for onee-a-day dosage form of diltiazem hydrochloride, including any supplemental NDAs or NDAs related to that product.” (¶ 80). Also by letter dated April 8, 1996, the FDA confirmed to Biovail that the “right of reference” was broad enough to cover “any diltiazem hydrochloride new drug application or supplement that Bio-vail submits.” (¶ 82). Plaintiffs allege that the purpose and intended effect of the Biovail/Hoechst Settlement Agreement, the FTC Consent Order, and the Letter of Reference was to ensure that the Hoechst Defendants would not attempt to prevent Biovail from obtaining FDA approvals for its diltiazem products, including any supplemental or related NDAs. In the summer of 1996, the Hoechst Defendants learned that Biovail was: (1) resolving its patent dispute with Elan, which in light of the December 18, 1995 letter of reference, would have been the only remaining impediment to the FDA’s approval of Biovail’s generic version of Cardizem CD; (2) preparing to file an ANDA seeking approval of its generic drug; and (3) preparing to submit an NDA for its generic version of Cardizem CD which required, as a precondition to filing, the December 18, 1995 letter of reference. (¶ 86). Since drugs covered by NDA’s are not subject to Para. IV Certification or the 180-day exclusivity period imposed on all ANDA filers except the first ANDA filer, Biovail’s NDA filing would have been unaffected by Andrx’s 1995 first-filed ANDA for its generic version of Cardizem CD. Biovail’s generic version would have been promptly approved for marketing under the NDA route and allegedly would have been available in the U.S. no later than April 1998, before Andrx’s ANDA was approved. (Id., ¶ 88). Accordingly, it is alleged that the Hoechst Defendants wrote to the FDA on July 11, 1996 to attempt to limit the scope of the right of reference to Tiazac only. The Hoechst Defendants wrote to the FDA, renouncing the wording of its December 18,1995 “right of reference” letter, and telling the FDA that the right of reference did not apply to any QD diltiaz-em formulations other than the one originally submitted for Tiazac, and telling the FDA that the right of reference could not be used for any new NDAs submitted by Biovail for diltiazem-based drug products. (¶¶ 86-91). In October 1996, the Hoechst Defendants delivered a second letter to the FDA renouncing the wording of their earlier December 18, 1995 right of reference letter and stating that it did not apply to any QD diltiazem formulation other than the one originally submitted for Tiazac and further stating that it could not be used for any new NDA submitted by Biovail for diltiazem-based drug products. {Id., ¶ 91). On November 8, 1996, the FDA advised Biovail that Defendant HMRI had expressly limited the right of reference and thus “the broader interpretation by the agency of the possible scope of the right of reference, which was conveyed to [Biovail] by letter of April 18, 1996” was inapplicable. (¶ 92). Plaintiffs allege that the Hoechst Defendants’ limitation of the right of reference: (1) “plainly contradicted” the “clear wording” of the December 18, 1995 letter of reference itself; (2) constituted a breach of the Settlement Agreement and the FTC Consent Order; (8) compelled the FDA to reject Biovail’s NDA filing; (4) precluded Biovail from filing an expedited NDA for generic Cardizem CD; (5) prolonged Defendants’ monopoly over the Cardizem CD market; and (6) was done despite the absence of any reasonable belief in its merits and for the sole purpose of prolonging the Cardizem CD monopoly. (¶¶ 93-95). The Hoechst Defendants also allegedly sent an Hoeehst/HMRI representative to meet with Biovail’s executives at Biovail’s Canadian headquarters on a Sunday in August 1997, where the Hoechst/HMRI representative offered Biovail a payment of at least $20 million cash not to market its generic version of Cardizem CD before January 2000 and threatened a patent infringement suit, notwithstanding its covenant not to sue, if Biovail filed an NDA. Biovail refused the offer and indicated its intent to file an NDA using the right of reference to expedite the process. (¶¶ 89-90). Biovail has filed suit against Hoechst, HMRI and Carderm in the United States District Court for the District of New Jersey for, inter alia, violations of antitrust laws in connection with this conduct. On June 1, 1999, that court denied each of defendants’ motions to dismiss Biovail’s complaint. 39 F.Supp.2d 750 (D.N.J.1999). {Id., ¶¶ 94-96). 3. Development of Generic Bioequi-valent — Andrx Prior to August 1995, Defendant Andrx had been developing its own generic version of Cardizem CD, and provided samples of its proposed generic substitute for Cardizem CD to the Hoechst Defendants so they could perform their own tests to confirm that there was no infringement of the patents claiming Cardizem CD and thus avoid litigation. On September 22, 1995, Andrx filed an ANDA for a generic version of Cardizem CD and made a Paragraph IV Certification with regard to all unexpired patents listed in the FDA’s Orange Book allegedly claiming Cardizem CD. On November 28, 1995, two months after Andrx’s ANDA, the U.S. Patent and Trademark Office issued the “584 Patent” to Carderm which then licensed it to HMRI. (Id., ¶ 101). In January 1996, HMRI and Carderm filed a patent infringement suit against Andrx in the District Court for the Southern District of Florida (“HMRI/Andrx patent case”). The filing of the suit triggered the 30-month Hatch-Waxman waiting period, which expired on July 3, 1998. {Id. ¶ 102). On April 4, 1996, Andrx amended its ANDA to specify a dissolution profile that was even more clearly distinct from that claimed by the ’584 patent. {Id., ¶ 103). Despite notice of this, HMRI continued to prosecute the HMRI/Andrx patent case. Andrx also filed antitrust counterclaims against HMRI in the patent ease. On September 17, 1997, the FDA gave preliminary approval to Andrx’s amended ANDA for its generic version of Cardizem CD. Thus, upon expiration of the 30 month waiting period in early July 1998, Andrx would be able to introduce its generic version of Cardizem CD into the U.S. market. Plaintiffs allege (¶ 108) that unless the Hoechst Defendants could come up with a way to keep their competitor’s generic version off the market, they would lose their monopoly over the market for Cardizem CD and its generic bioequivalents by no later than July 9, 1998. On that date, the 30-month Hatch-Waxman waiting period would expire, and the FDA’s approval of ■Andrx’s ANDA would allow Andrx to begin marketing its generic drug notwithstanding the continued pendency of the HMRI/Andrx patent case. On or before September 24, 1997, HMRI and Andrx entered into the HMRI/Andrx Agreement. Plaintiffs allege (¶ 111) that this collusive and anticompetitive agreement had the effect and purpose of allowing the Hoechst Defendants to continue to maintain their monopoly market share while continuing to set artificially high prices for Cardizem CD throughout the U.S. Under the Agreement, HMRI was obligated to start, as of July 9, 1998 (the date the 30-month freeze ended), making quarterly payments to Andrx of ten million dollars. The payments were to end when the HMRI/Andrx patent case, including all appeals, was finally over. It is alleged that but for the HMRI/ Andrx Agreement, Andrx would have begun marketing is generic version of Car-dizem CD on or shortly after July 9, 1998, and the FDA could have approved other generic versions of Cardizem CD after the 180-day period of exclusivity granted to Andrx under Hatch-Waxman expired. On August 20, 1998, the first of these state law class actions was filed in California, and on June 9,1999, HMRI and Andrx announced that they had agreed to settle the HMRI/Andrx patent suit. They claim here that the settlement was possible because Andrx amended its ANDA and reformulated its generic version of Cardizem CD. At the time of settlement, HMRI paid Andrx an additional $50,700,000, bringing its total payments to Andrx to $89,830,000. Since June of 1999, Cartia XT, Andrx’s generic version of Cardizem CD, has been sold at a substantial discount to the price of Cardizem CD, and it has captured nearly half of the U.S. market for Cardizem CD and its generic bioequivalents. D. Defendants’ Motions to Dismiss Presently pending before the Court are Defendants’ motions to dismiss raising issues concerning: 1. Defendants’ immunity from antitrust liability under the Noerr-Pennington Doctrine; 2. State Law and Sherman Act Plaintiffs’ failure to allege antitrust injury— an essential element of Plaintiffs’ antitrust claims; 3. State Law and Sherman Act Plaintiffs’ failure to allege any legally cognizable anticompetitive effects; 4. Preemption/Exemption of Plaintiffs’ claims; 5. Plaintiffs’ lack of standing to enforce the FTC Consent Order regarding Bio-vail; 6. State Law Plaintiffs’ failure to state claims under the antitrust statutes of Tennessee and Wisconsin (interstate vs. intrastate commerce issue); 7. State Law Plaintiffs’ failure to state claims based on principles of unjust enrichment; 8. Whether the Tennessee or Minnesota Plaintiffs have personal jurisdiction over Defendant Hoechst AG; and 9. Plaintiffs’ failure to state an antitrust claim that allows the reasonableness of the alleged restraint of trade to be analyzed under either a per se or rule of reason analysis. II. Standard of Review — Motion to Dismiss To survive a motion to dismiss under Rule 12(b)(6), a “complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988) (internal quotation marks and citations omitted). The Court “must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief.” In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993). “[W]hen an allegation is capable of more than one inference, it must be construed in the plaintiffs favor.” Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039-40 (6th Cir.1991). “[A] complaint should be dismissed for failure to state a claim only where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1189 (6th Cir.1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “Although this standard for Rule 12(b)(6) dismissals is quite liberal, more than bare assertions of legal conclusions is ordinarily required to satisfy federal notice pleading requirements.” Scheid, 859 F.2d at 436 (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357, at 596 (1969)). “The essential elements of a private antitrust claim must be alleged in more than vague and conclusory terms to prevent dismissal of the complaint on a defendant’s 12(b)(6) motion.” Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir.1988). III. Analysis A. Immunity under the Noerr-Pen-nington Doctrine Issues: (1) Whether the HMRI/Andrx Agreement is “incidental to” a valid effort to influence governmental action and thus immune from antitrust liability under the Noerr-Pennington Doctrine; (2) Whether Plaintiffs have failed to allege facts showing that the HMRI/Andrx Patent Infringement Litigation was a Sham; and (3) Whether Hoechst’s communications with the FDA regarding the scope of the Right of Reference Granted to Biovail are protected under the Noerr-Pennington doctrine? 1. Noerr-Pennington Immunity for Conduct “Incidental To” Non-Sham Governmental Petitioning Defendant HMRI argues that, because the HMRI/Andrx Agreement is an “incidental effect” of non-sham patent infringement litigation; i.e., it is conduct reasonably attendant to litigation (a protected activity), it is immune from antitrust liability under the Noerr-Pennington doctrine. HMRI’s argument has two premises; the first presents a legal argument, and the second presents a factual one: (1) private agreements, like the HMRI/Andrx Agreement, can be considered “incidental effects” of litigation and thus fall within the protection of the Noerr-Pennington immunity doctrine; and (2) HMRI’s initiation and continued prosecution of the HMRI/ Andrx patent infringement litigation was a valid effort to influence government action; i.e., it was not sham litigation. If the Court disagrees with HMRI’s initial legal argument and finds that the HMRI/Andrx Agreement is separate and distinct activity that cannot be considered an incidental effect of the HMRI/Andrx patent litigation, there is no need to address the factual premise of Defendant’s argument; i.e., that Plaintiffs have failed to alleged facts showing that HMRI’s filing and continued prosecution of the HMRI/Andrx patent case was a sham. Accordingly, this Court addresses the legal argument first. a. Noerr-Pennington Doctrine The Noerr-Pennington doctrine immunizes defendants from antitrust liability for anticompetitive harm that results from government-petitioning activity, including litigation. “Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability”. Allied, Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). “The doctrine stands for the proposition that the exercise of First Amendment rights in seeking governmental action—including litigation—cannot form the basis of antitrust liability, even if the action injures a competitor.” TRW Financial Systems, Inc. v. Unisys Corp., 835 F.Supp. 994, 1011, n. 25 (E.D.Mich.1993). The doctrine has developed from a trio of Supreme Court decisions. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). “In Noerr and Pennington, the Court held that ‘the Sherman Act does not prohibit ... persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or monopoly.’ ” Noerr, 365 U.S. at 136, 81 S.Ct. at 529; Pennington, 381 U.S. at 669, 85 S.Ct. at 1592. “In California Motor Transport, the Court extended Noerr to protect from antitrust liability citizens engaging in adjudicatory actions before administrative agencies and the courts. 404 U.S. at 510, 92 S.Ct. at 611.” TRW Financial Systems, 835 F.Supp. at 1011 n. 25. The Supreme Court has observed, however, that “[t]he scope of this protection depends ... on the source, context, and nature of the anticompetitive restraint at issue.” Allied Tube, 486 U.S. at 499, 108 S.Ct. 1931. As Professors Areeda and Hovenkamp observe: [mjonopolists or collaborators are privileged to pursue their private and selfish objectives through legislation, adjudication, or executive and administrative machinery. This right is founded in our Constitution but is also said to be independently derived from statutory interpretation of the antitrust laws. But even setting aside the Constitution and the substantive meaning of the statute, when the anticompetitive harm results from the government action—as when a private petitioner requests and receives anticompetitive legislation—then the government itself becomes the “cause” of the restraint, and the private petitioner is relieved from liability. 1 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 201a at 148 (Rev. ed.1997) (emphasis added). Elaborating further, Professors Areeda and Hovenkamp explain that “[t]o be sure, private parties may have influenced or persuaded the government to act, but the government’s decision to act reflects an independent governmental choice, constituting the supervening ‘cause’ that breaks the link between a private party’s request and the plaintiffs injury.” Id. ¶ 202c at 160. In the context of successful litigation, these commentators observe that “[i]n that case the premise must be that judge and jury are politically ‘neutral’ decision makers and that established law entitled the petitioner to the requested relief.” Id. at 161. “[Cjourts distinguish between harm caused directly by the private parties from that caused by the government itself.” Id. at 163. When the anticompetitive harm is the result of a court decision, although requested by a private party, there “is no private restraint of trade.” Id. at 163-64. b. Analysis Defendant HMRI’s Rule 12(b)(6) motion to dismiss is premised on its legal argument that purely private agreements, like the HMRI/Andrx Agreement, that are entered into during the course of pending litigation but are not filed with, presented to, or approved by the court presiding over that litigation, fall within the protection of the Noerr-Pennington immunity doctrine because they are “incidental to” that pending litigation. See Allied Tube, 486 U.S. at 499, 108 S.Ct. 1931 (citing Noerr, 366 U.S. at 143, 81 S.Ct. 523). Specifically, HMRI argues that the HMRI/Andrx Agreement is “incidental to” the HMRI/Andrx patent infringement action because,' contrary to Plaintiffs’ allegations in their complaints, it merely maintained the status quo and managed the risks the parties faced while the HMRI/Andrx patent suit was being litigated. Defendant calls the Agreement an “interim stipulation” and a “stipulated preliminary injunction” despite the fact that the Agreement was never filed in that case and was never presented to or approved by the court presiding over the HMR/Andrx patent infringement action. Defendant also describes the Agreement as “akin to a settlement agreement of portions of the infringement action” despite the fact that the Agreement settled none of the infringement claims pending in the HMRI/Andrx patent infringement action. Rather, as Plaintiffs allege, in addition to refraining from going to market with its generic version of Cardizem CD in exchange for $10 million per quarter, Andrx agreed to dismiss, without prejudice, its antitrust and unfair competition counterclaims against HMRI which asserted that HMRI’s patent infringement claims were a sham. Plaintiffs argue that the anticompetitive harm caused by the purely private HMRI/ Andrx Agreement is separate and distinct from any anticompetitive effects that would have resulted from Defendant HMRI’s successful prosecution of its patent infringement action against Andrx and thus cannot be considered an “incidental effect” of that patent infringement litigation. This, they argue, is not a situation where the anticompetitive harm is the result of a court’s decision although requested by a private party. Rather, it is the result of purely private conduct and thus constitutes a private restraint of trade subject to liability under the antitrust laws. Plaintiffs further argue that, despite HMRI’s current characterizations of the HMRI/Andrx Agreement, there was no preliminary injunction hearing or injunction issued in the patent case, no stipulation filed in that case, and no partial settlement agreement presented to, filed in, or approved by the court presiding over that matter. Thus, any anticompetitive harms that flow from the HMRI/Andrx Agreement are the result of purely private action, not judicial action. This Court agrees with Plaintiffs. Construing the allegations in Plaintiffs’ Complaints in the light most favorable to them, this Court is persuaded that Noerr-Pennington jurisprudence does not justify application of this doctrine to immunize the anticompetitive harms caused by the HMRI/Andrx Agreement. The decisions Defendant relies upon do not support a contrary conclusion. i. The Decision in Noerr Does Not Support HMRFs Argument Defendant’s “incidental effects” argument finds its roots in Noerr. In that case, a group of railroads waged a publicity campaign against truckers and trucking companies in an effort to influence anti-trucking legislation. A group of trucking companies subsequently brought an antitrust suit against the railroads alleging a railroad conspiracy to monopolize the long-distance freight business and alleging that the government’s veto of a Fair Truck Bill in response to the railroad’s publicity campaign caused the trucking companies damage in the form of lost business. The Court held that the railroad group was immune from antitrust liability for the anticompetitive harms that resulted from its legitimate government petitioning activity despite the fact that the railroad’s publicity campaign may have also inflicted some direct injury on the trucking companies. In Noerr, the Court observed that: [i]t is inevitable, whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interest of the party against whom the campaign is directed.... To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns. Noerr, 365 U.S. at 14&-44, 81 S.Ct. 523. Accordingly, Noerr teaches that, in some circumstances, immunity is still warranted despite the presence of incidental effects of lobbying that might result in direct injury of an opponent. See 1 P. Areeda & H. Hovenkamp, supra, ¶2(^ at 164. “In Noerr, ..., the plaintiffs alleged that one consequence of the railroads’ campaign against truckers was the dissemination of information suggesting that the truckers were dangerous on the highway, that they did not pay their fair share of highway taxes, and similar charges. Whether true or not, these claims injured the truckers without regard to any action that the government might take in response to the railroads’ petitions.” Id. at 165, 81 S.Ct. 523 (footnote omitted). Nonetheless, “the Supreme Court held that there could be no recovery for any injury that was ‘an incidental effect’ of the legislative campaign. Every campaign for regulating someone else, the Court noted, would include factual statements casting the other in a bad light. It then concluded that making petitioners liable for incidental injuries caused by their petitions would be tantamount to condemning the petitions themselves.” Id. (footnotes omitted). The argument Defendant advances here is not supported by the Court’s “incidental effects” analysis in Noerr. The source, context and nature of the anticompetitive restraint at issue here are readily distinguished from those present in Noerr. There is no claim of anticompetitive harm here resulting from the incidental effects of a publicity campaign waged by HMRI in connection with its litigation against Andrx. Rather, the source of the alleged anticompetitive harm is a private market allocation agreement between horizontal competitors who were adversaries in the pending HMRI/Andrx patent infringement action. Defendant does not explain how Noerr advances its claim that the purely private HMRI/Andrx Agreement is an “incidental effect” of pending litigation and thus entitled to immunity from antitrust liability. Applying Noerr in the litigation context, a more analogous “incidental effect” of non-sham litigation deserving of immunity would be the direct and indirect costs associated with defending the litigation. See 1 P. Areeda & H. Hovenkamp, supra, ¶ 202d at 164. This Court agrees with Plaintiffs’ argument that, rather than being analogous to Noerr, this case is more analogous to a situation where the Pharmaceutical Manufacturers Association petitions Congress for a law requiring drug makers to raise their prices by a specified amount per year (an immunized governmental petitioning activity) and then, because Congress isn’t as quick as the Association would prefer, its members enter into a private, “interim” agreement where they accomplish the same thing while Congress deliberates (not immunized governmental petitioning activity). See, e.g., In re Brand Name Prescription Drugs Antitrust Litig., 186 F.3d 781, 789 (7th Cir.1999) (observing that the Noerr-Pennington “doctrine does not authorize anticompetitive action in advance of government’s adopting the industry’s anticompetitive proposal. The doctrine applies when such action is the consequence of legislation or other governmental action-”). ii. Decisions Extending Immunity to Pre-litigation Conduct Do Not Advance HMRI’s Arguments Noerr-Pennington immunity has been extended to non-sham, pre-litigation threats of suit, demand letters, and communications about pending suits. See McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1558-60 (11th Cir.1992)(pre-litigation threats of suit); Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358, 1366-67 (5th Cir.1983) (same); and Barq’s, Inc. v. Barq’s Beverages, Inc., 677 F.Supp. 449, 453 (E.D.La.1987) (observing that “threatened litigation and attending ^publicity” was considered “part and parcel" of'the petitioning immunity of Noerr-Pennington if the litigation itself was in good faith” and thus holding that the plaintiffs pre-litigation demand letters were “also protected under the Noerr-Pennington petitioning immunity”). See also Aircapital Cablevision, Inc. v. Starlink Communications Group, Inc., 634 F.Supp. 316, 324-26 (D.Kan.1986) (observing that publicity about non-sham litigation and its indirect threats of litigation against Starlink’s customers were incidental to non-sham litigation and thus protected under the Noerr-Pennington immunity doctrine). Cf. Cardtoons v. Major League Baseball Players Ass’n, 182 F.3d 1132, reh’g en banc, 208 F.3d 885,- (10th Cir.2000) (observing that Noerr-Pennington immunity is available to immunize prelitigation threats from liability only when antitrust claims are at issue). “Most lawsuits are prefaced by various communications, such as demand letters that expressly or impliedly threaten suit unless the addressee alters its conduct or provides other relief. Such prelitigation communications provide useful notice and facilitate the resolution of controversies. It would be foolish to adopt antitrust rules encouraging suit before communication by penalizing the communication but not the suit.” 1 P. Areeda & H. Hovenkamp, supra, ¶ 205e at 237. Defendant’s argument that the HMRI/ Andrx Agreement is “reasonably and normally attendant upon effective litigation” and thus entitled to immunity is not advanced by decisions holding that pre-litigation conduct like threats of suit are entitled to the same immunity as the litigation itself. While it is true that the courts have extended Noerr-Pennington immunity to non-sham, pre-litigation threats of suit, demand letters, and communications about pending suits, the HMRI/Andrx Agreement does not fall within this category of immunized pre-litigation conduct. Accordingly, that line of authority does nothing to advance Defendant’s position here. Defendant HMRI’s reliance on McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1560 n. 11 (11th Cir.1992), is similarly misplaced. The Court in McGuire Oil did not, as Defendant HMRI argu^sTRoId that “an interim stipulation entered into bv opposing parties in ongoing litigation was protected by Noerr-Pennington immunity.” HRMI Br. at 25. Rather, the McGuire Oil Court held that pre-litigation threats of suit enjoy the same immunity under the Noerr-Pennington doctrine as the litigation itself. In McGuire Oil, the plaintiffs, petroleum wholesalers “engaged in the wholesale and retail sale of branded gasoline” first threatened suit and then sued defendant corporation, which was “engaged in the retail sale of unbranded petroleum products in Alabama,” alleging that defendant had violated the Alabama Motor Fuel Marketing Act by selling or offering to sell gas at prices below cost. McGuire Oil, 958 F.2d at 1554. The defendant filed a counterclaim alleging that “the plaintiffs engaged in a concerted effort to establish minimum prices for gasoline in the Mobile [Alabama] area, and that this effort manifested itself in threats and coercion of those independent retailers, like [defendant], who sought to preserve their market share by pricing gas one or two cents below major brand gas prices.” Id. at 1557. Defendant’s counterclaim alleged, in essence, “that plaintiffs violated the Sherman Act by engaging in concerted efforts to threaten and initiate litigation against [defendant] under the [Alabama Motor Fuel Marketing Act].” Id. at 1558. Affirming the district court’s summary dismissal of defendant’s antitrust claims, the Eleventh Circuit observed that, “[o]n its face, [defendant]^ Sherman Act counterclaim appears barred by the Noerr-Pen-nington doctrine: the raison d’etre of plaintiffs’ alleged conspiracy was to threaten and ultimately initiate litigation against [defendant] under the [Alabama Act] in an attempt to get [defendant] to cease its below-cost sales of gas.” Id. at 1559. After rejecting defendant’s argument that the sham exception to the Noerr-Penning-ton immunity doctrine “applies in this case to strip the plaintiffs of immunity from Sherman Act liability under that doctrine”, the McGuire Oil court held that “plaintiffs’ concerted and repeated threats of litigation”, as well as plaintiffs’ “actual initiation of litigation,” are immunized from antitrust liability. Id. at 1562, 1560. Rather than being derived from the holding in McGuire Oil, Defendant’s argument is gleaned from dicta in a footnote. There the court observed that the defendant in McGuire could not use the fact that it' had suffered losses as a result of a stipulation it voluntarily entered into during the course of the plaintiffs litigation against it to bootstrap an argument, in support of its antitrust counterclaim, that the plaintiff had sued it purely for anti-competitive purposes and without a legitimate expectation of winning or a desire for judicial relief. See McGuire Oil, 958 F.2d at 1560 n. 11. When the court stated that the defendant “cannot treat as abuse of the judicial process the entry of a stipulation to which the parties voluntarily agreed, regardless of the injurious effect it had on [defendant’s business”, it was merely observing that the defendant could not argue that the lawsuit filed against it was a sham because, during the course of that litigation, it agreed with its opposing party that it would raise its gas prices and subsequently lost sales as a result of that voluntary agreement. The facts presented here are readily distinguished from the facts presented in McGuire Oil. They are likewise distinguishable from the facts of other decisions Defendant relies upon in support of its argument that the HMRI/Andrx Agreement is conduct “reasonably and normally attendant upon litigation” and thus immunized from antitrust liability. iii. Decisions Immunizing the Rejection of a Settlement Offer Do Not Advance HMRI’s Arguments Noerr-Pennington immunity has been extended to an antitrust defendant’s refusal to accept the antitrust plaintiffs offer to settle pending, non-sham litigation between these parties. See Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1528-29 (9th Cir.1991) (holding that the plaintiffs’ refusal to accept the defendant’s offer to settle a pending, nomsham copyright infringement case was conduct incidental to the prosecution of that non-sham case and thus was likewise immunized from antitrust liability), aff'd sub nom, Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); PrimeTime 21 Joint Venture v. Nat’l Broadcasting Co., Inc., 21 F.Supp.2d 350, 358-59 (S.D.N.Y.1998) (similarly construing the antitrust defendants’ concerted refusals, both to negotiate with the antitrust plaintiff and to erant-fhe plaintiff the licenses it sought in an attempt to~avoid liability for infringing "fhe"'dsfendants’ copyrights, as a rejection of a settlement offer and thus conduct incidental to the antitrust defendants’ pending copyright infringement litigation against the antitrust plaintiff); Modesto Irrigation Dist. v. Pacific Gas & Elec. Co., 61 F.Supp.2d 1058 (N.D.Cal.1999) (construing the antitrust defendant’s unilateral refusal to accept the antitrust plaintiffs request to provide transmission service' 'to_a'~eertam~p5wer substation as analogous"!» a refusantd accept a settlement offer and thus finding the refusal “incidental to” the defendant’s filing of a petition before a governmental agency, where it sought a declaration that it was not obligated to provide power to that substation, and entitled to immunity because, if the offer had been accepted, the agency action would have been moot). In Columbia Pictures, PrimeTime 21, and Modesto, the court reasoned that the antitrust defendant’s conduct was “incidental to” the underlying litigation because the rejection allowed for continued prosecution whereas an acceptance of the antitrust plaintiffs offer would have rendered the underlying dispute moot. Contrary to Defendant’s argument here, the courts in Columbia Pictures, Prime-Time 24, and Modesto did not apply Noerr-Pennington immunity to a purely private agreement similar t'o the-HMRI/ Andrx Agreement. Rather,- these court held that an antitrust defendants’ refusal to accept the antitrust plaintiffs’ offer to settle a pending, non-sham case was conduct “incidental to” the continued prosecution of that non-sham case and thus was entitled to the same immunity as that enjoyed by the underlying litigation. Thus, the principle to be gleaned from these decisions is’ tHaFIf tire underlytng'Tffigation is~not’a shañTahdImmuneTrom antitrust liaMlify,"!heif 'in’ a" subsequent~'antrtfust ácHbñ7fhe'añS5;ust“deféManl’s" refusaTto settle the undérIpñg~süit~is~Ekewise iin-mune_from antitrust liability-under~the Nóerr-Penniñgfm doctrine. CoBImlñd NicMreFhlüstrat'esTEIFpoiñE In Columbia Pictures, the plaintiffs sued the defendant hotel operators alleging that the defendants had violated the plaintiffs’ “copyrights to certain motion pictures by renting videodiscs of those pictures” to its guests “for viewing on videodisc players placed in hotel rooms.” Id. at 1527. Defendant Professional Real Estate Investors, Inc. (“PRE”) filed a counterclaim against the plaintiffs alleging violations of the Sherman Act, state antitrust laws and state unfair competition laws. “PRE charged that the copyright infringement suit was a sham”, and that the plaintiffs’ “concerted refusal to grant licenses to PRE to rent the videos, as well as other unspecified activities, constituted a pattern of anticompetitive conduct.” Id. Granting the plaintiffs’ motion for summary judgment, the district court held that the plaintiffs’ “copyright infringement action was not a ‘sham’, and that, as a result, the Movie Studios’ bringing of that action was immune from antitrust liability under the Noerr-Pennington doctrine.” Id. at 1527-28. This decision was affirmed by the Ninth Circuit. Additional rulings in that appeal are germane to Defendant HMRI’s argument here. On appeal, PRE argued that summary judgment was improper because the district court failed to consider its additional allegation of anticompetitive conduct, including an allegation that the plaintiffs in the copyright infringement action had “eoncertedly refused to grant licenses to PRE to rent videodiscs to its guests”. Id. at 1528. Despite the district court’s failure to address PRE’s additional allegations, the Ninth Circuit affirmed its decision granting summary judgment because reversal was not required. Id. at 1528. The court reasoned that reversal was not required because: (1) PRE’s concerted-refusal-to-deal allegation related to “PRE’s attempts, after Columbia Pictures instituted the copyright infringement action, to obtain licenses from the Movie Studios to use and install in-room videodisc systems in the guest rooms”, id.; (2) “[o]n the facts of this case, PRE’s request for licensi