Full opinion text
OMNIBUS ORDER GRANTING IN PART AND DENYING IN PART JOINT MOTION TO DISMISS THE SECOND AMENDED CONSOLIDATED CLASS ACTION COMPLAINT MORENO, District Judge. I. INTRODUCTION This multi-district litigation involves two separate categories of plaintiffs who have filed suit against various insurance companies that provide managed care. One group of plaintiffs consists of Providers who allege that the managed care company defendants, both individually and in combination, engaged in a pattern of failing to pay claims in full and in a timely manner, thereby breaching certain agreements and selected federal and state statutes. The Providers include those in the Main Track nationwide class action complaint as well as certain tag-along plaintiffs transferred to this Court from locations around the country by the Judicial Panel on Multi-District Litigation. Before the Court is the second phase of motions to dismiss in the Provider track of this litigation. Defendant managed care companies jointly seek to dismiss various portions of the Main Track Second Amended Consolidated Class Action Complaint for failure to state a claim upon which relief can be granted. Through numerous pleadings spanning many months and a hearing on August 14, 2003, these well-matched parties have participated in a classic legal contest. For the reasons outlined below, the joint motion to dismiss is GRANTED in part and DENIED in part consistent with this opinion. A. COMPLAINT The Main Track Second Amended, Consolidated Class Action Complaint (the “SAC”) (D.E. No. 1607) contains ten separate causes of action: (1) RICO conspiracy, 18 U.S.C. § 1962(d); (2) RICO aiding and abetting, 18 U.S.C. § 2((1) and (2) collectively referred to herein as “secondary RICO violations”); (3) primary RICO, 18 U.S.C. § 1962(a) & (c); (4) RICO declaratory and injunctive relief, 18 U.S.C. § 1964(a); (5) breach of contract; (6) unjust enrichment/constructive contract; (7) violation of various state prompt pay statutes; (8) violation of the California Business & Professions Code § 17200; (9) violation of the Connecticut Unfair Trade Practices Act; and (10) violation of the New Jersey Consumer Fraud Act. II. LEGAL STANDARD A court will not grant a motion to dismiss unless the plaintiff fails to prove any facts that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiffs well-pleaded facts as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); St. Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948 (11th Cir.1986). III. DISCUSSION Coventry, Health Net, Humana, Pacifi-Care, Prudential, United, and WellPoint have filed a joint motion to dismiss the SAC. Anthem and Coventry have also filed separate motions to dismiss. The Court has issued several Orders of Dismissal as to previous versions of both Provider and Subscriber Track complaints. Many of these previous rulings are pertinent to resolution of the instant motions. (1)The Court rejected Defendants’ position that claims under 18 U.S.C.1962(a) must result from the “investment” of racketeering proceeds, rather than merely flow from predicate acts of racketeering. See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 441 (5th Cir.2000); Fogie v. THORN Americas, Inc., 190 F.3d 889, 899 (8th Cir.1999); Vemco v. Camardella, 23 F.3d 129, 132 (6th Cir.1994). The Court adopted the minority position that does not require an investment use injury independent of the alleged predicate acts under Section 1962(a). See In re Managed Care Litig., 150 F.Supp.2d 1330, 1351-52 (S.D.Fla.2001); See also Busby v. Crown Supply, 896 F.2d 833, 836-40 (4th Cir.1990); accord Avirgan v. Hull, 691 F.Supp. 1357, 1362 (S.D.Fla.1988), aff'd, 932 F.2d 1572 (11th Cir.1991). Nonetheless, in the most recent version of the Complaint, Plaintiffs have alleged that they suffered injury from Defendants’ “investment and reinvestment of [racketeering] income ... to operate, expand and perpetuate [the Managed Care Enterprise].” SAC ¶¶ 186, 192, 197. (2) The Court rejected Defendants’ position that Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), supercedes Eleventh Circuit precedent that authorizes a private cause of action for “aiding and abetting” a RICO violation pursuant to 18 U.S.C. § 2. See In re Managed Care Litig., 135 F.Supp.2d 1253, 1267 (S.D.Fla.2001); see also Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir.1994); cf. Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1204 (11th Cir.2001). (3) The Court held that the central, enterprise allegations underlying all of Plaintiffs’ RICO claims were untenably broad, and that the supporting averments were too vague, incomplete or indefinite. Plaintiffs failed to identify the third-party entities which formed the enterprise, and also did not provide sufficient detail regarding the links between these third-party entities. Accordingly, the Court directed Plaintiffs to “identify who comes within the ambit of [the RICO] enterprise, or where [plaintiffs’ RICO claims] begin and end.” In re Managed Care Litig., 135 F.Supp.2d 1253, 1262 (S.D.Fla.2001). (4) With regard to state prompt-pay statutes, the Court required Plaintiffs to “identify which state statutes are being alleged and which Defendants are alleged to have violated which statute” and “state how each Defendant violated the statute.” Id. at 1269-70. A. RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (COUNTS I-IV) The Racketeer Influenced and Corrupt Organizations Act (“RICO”) provides that it is “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). Therefore, “to state a RICO claim, a plaintiff must plead (1) that the defendant (2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering - activity’ (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect interstate or foreign commerce.” McCulloch v. PNC Bank, 298 F.3d 1217, 1225 (11th Cir.2002). “Racketeering activity” is defined to include “any act which is indictable under a lengthy list of criminal offenses.” Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1312 (11th Cir.2000). 1. “ENTERPRISE” a. Requirement of a Discernible “Entity” Defendants argue that the SAC again fails to define a sufficiently discrete enterprise for purposes of RICO liability. Plaintiffs include the following entities within their definition of the Managed Care Enterprise (“MCE”): Defendants, their trade associations, a few named vendors, unidentified “health insurance companies not named as defendants herein,” and “other third party entities.” SAC ¶¶ 26-31. Plaintiffs previously alleged that the RICO enterprise comprised the entire health care industry, including both providers and the numerous different companies connected in some professional fashion with the nation’s system for providing private health care coverage. While the scope of the alleged enterprise is still quite large, the Court finds that Plaintiffs have answered the challenge and added the requisite amount of detail to successfully allege an association-in-fact enterprise. An association-in-fact enterprise requires the existence of an entity, “an ongoing organization, formal or informal, and evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); see also NOW v. Scheidler, 510 U.S. 249, 259 n. 5, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (noting that an “enterprise” under Section 1962(a) must “be an entity that was acquired through illegal activity,” whereas an “enterprise” under Section 1962(c) is “generally the vehicle through which the unlawful pattern of racketeering is committed, rather than the victim of that activity”). Whether the enterprise is the prize, victim, instrument, or perpetrator, this requirement ensures that all RICO enterprises have a structure and some mechanism for “controlling and directing the affairs of the enterprise on an ongoing, rather than ad hoc basis.” United States v. Riccobene, 709 F.2d 214, 222-23 (3d Cir.1983); Bachman v. Bear Stearns & Co., 178 F.3d 930, 932 (7th Cir.1999) (stating that a RICO enterprise requires “continuity of structure and personality,” the ability “to hold [itself] together through time,” and “hierarchal or consensual decision-making”). While in particular cases the proof used to establish the enterprise and the racketeering pattern requirements may coalesce, the possibility of evidentiary overlap does not detract from the fact that the existence of an enterprise remains a separate element. Turkette, 452 U.S. at 583, 101 S.Ct. 2524 (“The ‘enterprise’ is not the ‘pattern of racketeering activity’; it is an entity separate and apart from the pattern.”). A RICO enterprise “require[s] a certain 'amount of organizational structure which eliminates simple conspiracies from the Act’s reach. That is, simply conspiring to commit a fraud is not enough to trigger the Act if the parties are not organized in a fashion that would enable them to function as racketeering organization for other purposes.” VanDenBroeck v. Common-Point Mortgage Co., 210 F.3d 696, 699 (6th Cir.2000); Fitzgerald v. Chrysler Corp., 116 F.3d 225, 228 (7th Cir.1997). Since “diverse parties ... customarily act for their own gain dr benefit in commercial relationships,” a complaint founded on commercial relationships between the alleged components of the enterprise should plead facts “dispelling] the notion that the different parties entered into [the alleged] agreements ... for their own gain or benefit.” Stachon v. United Consumers Club, Inc., 229 F.3d 673, 677 n. 4 (7th Cir.2000). Defendants argue that the SAC’s factual averments are insufficient even to allege concerted action that legally amounts to a conspiracy, much less an “entity” with the type of ongoing organization and structure necessary to meet RICO’s enterprise requirement. They claim that Plaintiffs’ new allegations of a MCE continue to cast too wide a net, in effect over an entire industry. Moreover, Defendants assert that there are no specific factual allegations showing a common link between the alleged participants. Thus, they assert that this “nebulous, open-ended description” is insufficient. Richmond v. Nationwide Cassel, L.P., 52 F.3d 640, 645 (7th Cir.1995); see also Brannon v. Boatmen’s First Nat’l Bank of Okla., 153 F.3d 1144, 1149 (10th Cir.1998). Once again, Defendants turn to authority outside the Eleventh Circuit holding that severally contracting with various Defendants is insufficient. Yet, the Eleventh Circuit has not bound itself to strict metaphysical structural requirements and has authorized just the type of allegations made .in this case. “An enterprise under [RICO] is any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact though not a legal entity. Moreover, under our case law, a RICO enterprise need not possess an ascertainable structure distinct from the association necessary to conduct the pattern of racketeering activity.... We have held that Turkette left intact this Circuit’s holding in United States v. Elliott, 571 F.2d 880 (5th Cir.1978), that the definitive factor in determining the existence of a RICO enterprise is the existence of an association of individual entities, however loose or informal, that furnishes a vehicle for the commission of two or more predicate crimes, that is, the pattern of racketeering activity requisite to the RICO violation.” United States v. Goldin, 219 F.3d 1271, 1274-75 (11th Cir.2000) (internal quotations and citations omitted). Indeed, “[A] RICO enterprise may be an ‘amoeba-like’ structure of a loose informal association.” Avirgan v. Hull, 932 F.2d 1572, 1578 (11th Cir.1991) (citing United States v. Cagnina, 697 F.2d 915, 921 (11th Cir.1983)), cert. denied, 502 U.S. 1048, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992). Plaintiffs argue that the SAC satisfies Goldin and cures the deficiencies previously noted by the Court. See SAC ¶¶ 126-131. While Defendants protest that the level of factual detail has not been reached, the pleadings are justifiably limited at this stage because Plaintiffs have not had the aid of discovery. The Court finds that the preliminary sketch of a RICO enterprise provided by the Plaintiffs adequately meets .the Court’s challenge-. Moreover, although the MCE that the Provider Plaintiffs have alleged is admittedly larger in scope than the one found sufficient in the Subscriber Track, there are a few analogous similarities. First, the Plaintiffs have not.bundled a random assortment of contracts and labeled it an enterprise. Each of the entities are tied together with the common purpose established by the Defendants. Second, the associations and third-party entities are alleged to have a stake in the ongoing function of the enterprise. Indeed, the links between the entities go beyond ordinary contractual bonds — for example, the hiring of each other’s senior-level employees, the use of similar patient care guidelines and computer software packages, and formation and membership in trade associations that unify the industry voice. SAC ¶ 130. Every individual entity plays a role in the enterprise equation: each Defendant and their subsidiaries throughout the country; other health insurance companies not expressly named; third party entities that develop claims processing systems or components; third party entities which promulgate patient care guidelines; third party entities that Defendants hire to review and wrongfully deny claims; trade associations; and a health industry database, MedUnite. SAC ¶ 127. The maintenance of this organized system requires an ongoing enterprise. Accordingly, the Plaintiffs have set out to the Court’s satisfaction the associational links comprising the Managed Care Enterprise and the Court therefore finds that Plaintiffs have sufficiently alleged an enterprise for the purposes of RICO. b. Antitrust in Disguise Defendants next argue that Plaintiffs’ concentration on “market dominance” confirms that the SAC is nothing more than vague antitrust allusions imper-missibly dressed in RICO garb. SAC ¶¶ 112-15, 130. RICO’s history indicates that Congress did not intend for it to be used as a vehicle for evading the strict legal requirements applicable to antitrust claims. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498-99, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Moreover, RICO enterprises are entities that might be victimized by, or used as vehicles for, the commission of the crimes enumerated by RICO. NOW v. Scheidler, 510 U.S. 249, 259 n. 5, 114 S.Ct. 798 (1994). Defendants claim that if Plaintiffs are allowed to proceed on their collusive-industry enterprise theory, all businesses might face similar liability for engaging in business practices that have not been shown to harm consumers or competition. Plaintiffs should not be able to use RICO to evade the requirements of applicable antitrust law. The broader regulation of competition, markets or lines of commerce remains the exclusive focus of antitrust laws. Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir.1990) (holding that antitrust conspiracy allegations are not “racketeering acts” under RICO, because a “violation of antitrust law is not a predicate act under RICO”); Prince Heaton Enters., Inc. v. Buffalo’s Franchise Concepts, Inc., 117 F.Supp.2d 1357, 1363 (N.D.Ga.2000); Schwartz v. Hosp. of Univ. of Pa., CIV A. No. 88-4865, 1993 WL 153810, *7 (E.D.Pa. May 7, 1993) (finding that plaintiff could not advance a RICO claim that “is dependent on an antitrust violation.”). Defendants contend that Plaintiffs’ “antitrust” averments would require dismissal under settled doctrine, as evidenced by their failure to allege harm to competition or define the relevant product and geographic markets. Feldman v. Palmetto Gen. Hosp., Inc., 980 F.Supp. 467, 469 (S.D.Fla.1997); see also Wagner v. Magellan Health Servs., Inc., 121 F.Supp.2d 673, 682 (N.D.Ill.2000). In the process of asserting that Plaintiffs’ claims have antitrust implications, however, Defendants actually undermine their position that Plaintiffs’ RICO claims encroach on antitrust territory when they attempt to demonstrate that an antitrust claim does not exist. Indeed, the fact that Defendants might be legitimate organizations does not take them out of RICO’s ambit. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. at 499, 105 S.Ct. 3275 (1985). Defendants urge the Court to adopt some sort of antitrust preemption, but none has been statutorily authorized by Congress. c. “Operation and Management” of the Enterprise Section 1962(c) imposes RICO liability on a defendant only if it “conduct[s]” or “participate^] ... in the conduct” of an enterprise. Congress’ insistence that the defendant must have “conduct[ed]” the affairs of the enterprise is not merely synonymous with “aid and abet,” or otherwise “superfluous,” but rather constitutes a separate and distinct requirement. Reves v. Ernst & Young, 507 U.S. 170, 178, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). Accordingly, Defendants must exercise “some degree of direction” of the enterprise as well as an element of “control.” Id. at 179, 184, 113 S.Ct. 1163. “[Liability depends on showing that the defendants conducted or participated in the conduct of the ‘enterprise’s affairs,’ not just their own affairs.” Id. at 185, 113 S.Ct. 1163; Brannon v. Boatmen’s First Nat. Bank of Oklahoma, 153 F.3d 1144, 1146 (10th Cir.1998). Defendants argue that Plaintiffs merely recycle allegations of individual predicate acts that each Defendant is alleged to have committed in the course of the operation of its own business. SAC ¶¶ 112-14, 130. Nevertheless, the Court finds that these allegations are sufficient at this stage. Plaintiffs begin by alleging that Defendants have violated Section 1962(c) “by conducting ... the affairs of the Managed Care Enterprise.” See Am. RICO Case Statement ¶ 6(d). Plaintiffs paint a further picture of the enterprise’s operation and control by alleging that Defendants played a part in directing the affairs of the enterprise by developing guidelines and standards to use as criteria to deny claims, by hiring others to develop automated systems for manipulating claims, by creating MedUnite as a common entry point for physician data, and by approving on a CEO by CEO basis the joint actions of the Coalition for Quality Healthcare. SAC ¶ 130(a), (c), (f) & (g). These allegations, if established, would show that the MCE furnishes a vehicle for the commission of continuing predicate crimes with the Defendants squarely in the driver’s seat. While Defendants quibble about needing more specificity regarding the operation and control of the enterprise, the Court nevertheless finds that Plaintiffs have alleged the basic contours of control necessary to survive a Fed.R.Civ.P. 12(b)(6) motion. 2. PREDICATE ACTS a. “Breach as Fraud” Theory Anthem and the Joint Defendants contend that Plaintiffs’ mail and wire fraud allegations amount at most to breach of contract (or quasi-contract) not the criminal fraud prohibited by 18 U.S.C. §§ 1341, 1343 which constitute RICO predicate acts. They argue that most of the representations alleged by Plaintiffs are merely communications that announce the disposition of a particular request for contractual reimbursement. See Amended RICO Case Statement ¶¶ 70-237. Plaintiffs, however, allege that each Defendant became guilty of fraud by failing to disclose secret cost containment mechanisms — such as the use of computer software to review claims— that Defendants allegedly use to deny, diminish and delay payment for covered, medically necessary services. SAC ¶¶ 78, 84-96. Rather than honoring their contractual and quasi-contractual obligations, Defendants “use cost-based or other actuarial criteria unrelated to [contractual and quasi-contractual] requirements to approve and deny claims submitted by Plaintiffs and the class.” Id. ¶ 84. At the outset, the Court notes that simple allegations of withholding or delaying payment under a contract, even for extortionate purposes, do not constitute criminal mail and wire fraud. Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1318-19 (11th Cir.1998); see also United States v. D’Amato, 39 F.3d 1249, 1261 n. 8 (2d Cir.1994); McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir.1990). Moreover, nondisclosure of an intent not to perform a contract generally cannot be used to bootstrap a fraud claim, since the mail and wire fraud statutes only proscribe representations designed to defraud. McNally v. United States, 483 U.S. 350, 357, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); Reynolds v. E. Dyer Dev. Co., 882 F.2d 1249, 1252 (7th Cir.1989); Zemans v. Karris, No. 87 C 171, 1989 WL 13161, *1 (N.D.Ill. Feb. 16, 1989). In addition, the Court also notes that the Defendants’ arguments do not apply to Plaintiffs who treated Defendants’ insureds outside of any contractual relationship. Further, as to the contractual claims, commercial contractual relationships are generally not the type of special relationship of trust that imposes an affirmative duty to disclose information. Langford v. Rite Aid, 231 F.3d 1308, 1314 (11th Cir.2000). However, contractual settings can provide the context for RICO mail fraud claims if there is a pattern of misrepresentations amounting to both a scheme to defraud and racketeering activity, Robert Suris Gen. Contractor Corp. v. New Metro. Fed. Sav. & Loan Ass’n, 873 F.2d 1401, 1404 (11th Cir.1989); United States v. Kreimer, 609 F.2d 126, 128 (5th Cir.1980). Concealment of critical data, even without a formalized duty to disclose, may also constitute mail and/or wire fraud in certain situations. Langford, 231 F.3d at 1312-13. In the SAC, the Plaintiffs allege a fraudulent scheme based upon the failure to disclose a plethora of automated processing techniques to diminish, deny or delay payments. SAC ¶ 78. See McNally v. United States, 483 U.S. 350, 357, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); Reynolds v. E. Dyer Dev. Co., 882 F.2d 1249, 1252 (7th Cir.1989). These contractual promises were allegedly never intended to be performed. Moreover, the allegations in the SAC can be distinguished from Johnson Enterprises, cited by Defendants, where the corporate defendant’s undue delay in payment did not constitute criminal fraud as it did not constitute a “scheme to defraud”. Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1318-19 (11th Cir.1998). In contrast, these failed disclosures alleged in the SAC go to ‘the heart of their relationship’ and disclosure was necessary to prevent the doctors from being misled by Defendants’ apparent actions and statements. Therefore, the allegations, if proven, constitute circumstances that might trigger a duty to disclose. See, e.g., United States v. Brown, 79 F.3d 1550, 1558 (11th Cir.1996) (“it can be criminal fraud for a seller to conceal, or even fail to disclose, information after already affirmatively misleading customers about material facts”). While Defendants insist on focusing on the individual contractual level in this class action, the Plaintiffs’ allegations of a fraudulent scheme takes place on a far wider systematic level — a significant distinction. Accordingly, while their claims are indeed embedded in a contractual relationship, Plaintiffs’s allegations of mail fraud continue to be viable. b. Fraud Claims and Fed.R.Civ.P. 9(b) The Joint Defendants also argue that all the fraud claims are not pled with the requisite particularity. Fed.R.Civ.P. 9(b); see also United States ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1310 (11th Cir.2002). The Court previously held that Plaintiffs’ allegations of “downcoding, CPT code manipulation, improper bundling and use of inappropriate criteria to deny or reduce claims” satisfied Fed.R.Civ.P. 9(b) and thus “properly pled against each Defendant predicate acts of mail and wire fraud constituting a continuing pattern of racketeering activity.” See In re Managed Care Litig., 135 F.Supp.2d 1253, 1263 (S.D.Fla.2001). The Court has not had occasion, however, to address the Plaintiffs’ capitation-related allegations contained in the SAC. Plaintiffs allege that Defendants misrepresent that their capitation rates are ac-tuarially sound, SAC ¶ 103, that Defendants overcharge risk funds for the cost of prescription medicine, id. ¶ 106, that Defendants manipulate pharmacy risk pools so that there is never any money in the pools at the end of the year to pay doctors, id. ¶ 107, and that Defendants delay furnishing providers with initial capitation payments, id. ¶¶ 104-05. Moreover, Plaintiffs allege that the Providers possessing capitation agreements with one or more of the Defendants receive monthly capitation rolls supposedly listing the patients in their group, but that the rolls do not include enrolled patients who have yet to seek any treatment, allowing Defendants to retain the full premiums for “well” members and forcing the doctors to absorb the costs of treating a group artificially inflated with sick patients. SAC ¶¶ 105-106 Defendants claim that Plaintiffs have provided only one allegation of fraud relating to one Defendant’s capitation payments and have provided no specific allegations of fraud relating to any Defendant’s risk sharing arrangements. Once again, this argument hinges on levels of specificity which are not required at this stage. Plaintiffs have provided the same level of detail in the capitation allegations as they did for the claims processing allegation, which this court found sufficient for the purposes of pleading RICO mail and wire fraud. Similarly, other courts have found that such detail is not required for numerous misrepresentations that occur over an extended period of time. Fujisawa Pharmaceutical Co. v. Kapoor, 814 F.Supp. 720, 726 (N.D.Ill.1993); Sunbird Air Servs., Inc. v. Beech Aircraft Corp., 789 F.Supp. 364, 366 (D.Kan.1992); United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 20 F.Supp.2d 1017 (S.D.Tex.1998). Accordingly, Plaintiffs have provided the requisite allegations which allow their claims to proceed. c. Deprivation of a Property Interest Striking at the substantive merits of Plaintiffs’ mail and wire fraud claims, Defendants contend that Plaintiffs’ claims of mail and wire fraud cannot be proven as a matter of law because the Plaintiffs have not alleged the deprivation of any cognizable property interest. The Supreme Court has held that the “mail fraud statute is limited in scope to the protection of property rights.” McNally v. United States, 483 U.S. 350, 360, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). This is because “the original impetus behind the mail fraud statutes was to protect the people from scheme to deprive them of their money or property.” Id. at 356, 107 S.Ct. 2875. Defendants argue that the providers possess services, and even though they expect to give that up in exchange for money, that does not make it a property interest. Defendants’ arguments have principally arisen in the wake of the recent Scheidler v. NOW decision, where the Supreme Court held, among other things, that by interfering with “a woman’s right to seek medical services from a clinic” and “the right of the doctors, nurses, or other clinic staff to perform their jobs” individual and corporate entities did not “obtain” or attempt to obtain a property right from women’s rights organization or abortion clinics. Scheidler v. NOW, 537 U.S. 393, 399-402, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003). Plaintiffs, however, argue that services indeed can be considered property, and allegations that they performed the services and were defrauded out of rightful monetary payments easily falls under the rubric of a property interest. The Court agrees. The allegations in part concern a scheme using claims processing mechanisms to deny, diminish, and delay payments for services that have been performed. Therefore, the providers are being deprived of a property right — in this case money rightfully theirs — in perhaps the most legally primitive sense. 3. PROXIMATE CAUSE Defendants argue that Plaintiffs’ allegations that Defendants have injured individual physicians by economically manipulating the entire managed care industry fail under RICO’s stringent proximate cause requirements. Holmes v. Sec. Invest Prot. Corp., 503 U.S. 258, 267-68, 272-73, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (requiring “some direct relation between the injury asserted and the injurious conduct alleged” and stating that RICO’s reach does not extend past the intervening acts of third parties). In the SAC, Plaintiffs have alleged that their injuries result from the participants in the managed care industry who have been “coerced” into participating in Defendants’ supposed “scheme.” For example, Plaintiffs allege that Defendants’ subsidiaries enter into capitation agreements with providers through independent medical groups (“IPAs”). Many of these IPAs themselves receive monthly capitation payments for each enrolled patient and agree to assume responsibility for processing and paying the claims of their individual doctors. According to Plaintiffs, Defendants’ fraudulent misrepresentations render those payments actuarially unsound and cause the group’s capitation fund to run dry. Defendants argue that it is speculation whether an individual doctor’s failure to receive payments is directly attributable to insufficient capitation payments as opposed to the business practices of individual medical groups or IPAs, including their administrative overhead, efficiency and claims processing procedures. See Holmes, 503 U.S. at 258, 112 S.Ct. 1311. Even assuming that the appropriate assessment of factual causation could be made out with respect to some members, Defendants argue that this would be determinable in many cases only after culling out those members whose incomes were reduced as a result of mistakes or poor business practices and then apportioning damages among individual members accordingly. The ensuing causal investigation would open the door to the kind of “massive and complex damages litigation” that Holmes held had no place in RICO. Id. at 274, 112 S.Ct. 1311. The Court disagrees. Exploring Defendants’ nightmarish causal scenario is inappropriate at this stage and Defendants fail in their attempt to create multiple layers of attenuation. Nothing like the extended chain of causation that existed in Holmes exists here — indeed, Defendants’ conduct is alleged to be the precipitating force in the Plaintiffs’ injuries in a simple causal relationship. The fee-for-service Plaintiffs are injured when their bills are not paid in full by the Defendants. The capitation Plaintiffs are injured when they fail to receive payment, in this case, the full capitation payments that they are entitled to, directly or indirectly, through the IPAs that pass them along. Accordingly, Plaintiffs have satisfactorily alleged proximate cause. 4. RICO CONSPIRACY (SECTION 1962(D)) To successfully allege a Section 1962(d) claim, a plaintiff must allege “that the conspirators agreed to participate directly or indirectly in the affairs of an enterprise through a pattern of racketeering activity.” United States v. Castro, 89 F.3d 1443, 1451 (11th Cir.1996). Proof of an agreement to participate in a RICO conspiracy can be established by either: (1) “showing an agreement of an overall objective or (2) in the absence of an agreement on an overall objective, by showing that a defendant agreed personally to commit two predicate acts.” United States v. Church, 955 F.2d 688, 694 (11th Cir.1992), cert. denied, 506 U.S. 881, 113 S.Ct. 233, 121 L.Ed.2d 169 (1992). Plaintiffs must allege both that the conspirators agreed to participate in the affairs of an enterprise through a pattern of racketeering activity, see United States v. Castro, 89 F.3d at 1451, and sufficient conduct on the part of the participants that such an agreement can be inferred, see United States v. Church, 955 F.2d at 694. The existence of an agreement to further illegal acts is the key. In re Asbestos Sch. Litig., 46 F.3d 1284, 1290 (3d Cir.1994). Paragraphs 165 and 166 of the SAC allege the formal RICO conspiracy language for both Sections 1962(a) and (c). Defendants argue that Plaintiffs’ conspiracy allegations merely allege conscious parallelism and constitutionally protected (First Amendment) conduct. See SAC ¶¶ 116, 118, 120 (“Defendants employ similar business practices in dealing with claims for reimbursement and participate in trade associations and other industry groups that are vehicles for the exchange of sensitive information”). Defendants assert that this is an insufficient factual basis from which to infer an agreement to violate RICO. O’Malley v. O’Neill, 887 F.2d 1557, 1560 (11th Cir.1989); Schiffels v. Kemper Fin. Servs., Inc., 978 F.2d 344, 352 (7th Cir.1992). They argue that evidence of membership in trade associations or other similar groups “is not probative of conspiracy.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Blomkest Fertilizer, Inc. v. Potash Corp., 203 F.3d 1028, 1038 (8th Cir.2000); In re Citric Acid Litig., 191 F.3d 1090, 1097-98 (9th Cir.1999). Nor is conspiracy demonstrated by “consciously parallel action” among industry members who belong to the same industry groups. Consolidated Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284, 293-94 n. 30 (5th Cir.1988). In the previous Order of Dismissal, this Court found that the Plaintiffs had adequately pled a conspiracy claim under Section 1962(d). Nevertheless, the claim was dismissed due to a defect in the enterprise allegations. Now that the Court has found that the Plaintiffs have satisfied the enterprise pleading requirements in the newest iteration of the complaint, there is no reason to depart from the previous finding. Indeed, close inspection of the SAC demonstrates that Plaintiffs continue to satisfy the pleading requirements. An agreement to the overall objective of the conspiracy as well as to commit predicate acts is contained in Paragraph 117, the functional necessity of such an agreement is contained in Paragraph 118, and sub-agreements, like agreeing to use the same standards, guidelines and automated processing techniques to deny or dimmish claims are alleged in Paragraph 130(b) and (d). Paragraphs 112 through 120 of the SAC allege conduct from which the requisite agreement can be inferred. As to the First Amendment concerns, Plaintiffs’ allegations go far beyond participation in trade associations. The First Amendment does not protect illegal conduct implemented through trade associations. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 926, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). Thus, discovery is necessary to determine the significance and probative value of these associational activities. 5. EQUITABLE RELIEF UNDER RICO (COUNT IV) Defendants argue that RICO does not authorize a private plaintiff to obtain equitable or declaratory relief, only treble damages. 18 U.S.C. § 1964(a). Section 1964(a) grants district courts “jurisdiction to prevent and restrain violations” of RICO by issuing various forms of injunctive relief — including “ordering dissolution or reorganization” — but does not expressly set forth a cause of action for any sort of relief. Section 1964(b) states that “[t]he Attorney General may institute proceedings under this section,” and that “[p]ending final determination thereof,” the court may enter appropriate interim restraining orders. Section 1964(c) provides that “[a]ny person injured in his business or property by reason of a [RICO] violation ... may sue ... and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” There is no controlling legal precedent that governs the Court’s disposition of this issue. Defendants argue, however, that based upon the text, structure and history of the statute, only the Attorney General may seek final and interim injunctive relief. A slim plurality of courts of appeals appear to agree, but most have addressed the issue in terms of interim or temporary equitable relief. Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076, 1087 (9th Cir.1986) (addressing the availability of interim injunctive relief); In re Fredeman Litig., 848 F.2d 821, 830 (5th Cir.1988) (holding that interim injunctive relief was unavailable); Sedima, S.P.R.L. v. Imrex, 741 F.2d 482, 489 n. 20 (2d Cir.1984), rev’d on other grounds, 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); see also Johnson v. Collins Entm’t Co., 199 F.3d 710, 726 (4th Cir.1999) (expressing doubt as to the availability of injunctive relief for private plaintiffs); cf. Bennett v. Berg, 685 F.2d 1053, 1064 (8th Cir.1982) (citing law review article supporting injunctive relief), aff'd on reh’g, 710 F.2d 1361 (1983) (en banc) (McMillan, J., concurring) (suggesting injunctive relief is available). Conversely, most courts have held that the Attorney General may not seek treble damages. United States v. Bonanno, 879 F.2d 20, 22-24 (2d Cir.1989). Furthermore, amendments that would have added a private right to injunctive relief were omitted from the final version of the statute. See Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076, 1084-85 (9th Cir.1986) (discussing RICO’s long legislative lineage). One circuit court, however, has recently held that private parties may obtain in-junctive and declaratory relief under RICO. NOW v. Scheidler, 267 F.3d 687 (7th Cir.2001), rev’d on other grounds, 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003). Scheidler relied entirely upon the plain meaning of the statutory text: “Section 1964(a) ... grants the district courts jurisdiction to hear RICO claims and also sets out general remedies, including injunctive relief, that all plaintiffs authorized to bring suit may seek. Section 1964(b) makes it clear that the statute is to be publicly enforced by the attorney general and it specifies additional remedies, all in the nature of interim relief that the government may seek. Section 1964(c) similarly adds to the scope of 1964(a), but this time for private plaintiffs. Those private plaintiffs who have been injured in their business or property by reason of a RICO violation are given a right to sue for treble damages.” Id. at 696. The decision in NOW v. Scheidler is most closely on point with the remedies sought in the SAC as Scheidler arose from the district court’s grant of permanent, rather than temporary, injunctive relief, akin to what Plaintiffs are seeking in the case at bar. Furthermore, few courts have squarely addressed the issue of the availability of equitable remedies and even then, do not reason in unison that permanent injunctive relief is unavailable. See In re Fredeman Litig., 843 F.2d 821, 830 (5th Cir.1988) (“[w]e need not decide, however whether all forms of injunctive or other equitable relief are foreclosed to private plaintiffs under RICO”). While the many authorities cited above render this interpretation a close call, the Court will follow the persuasive interpretation of thé NOW v. Scheidler decision in the Seventh Circuit as it appropriately tracks the plain language of the statute. The Eleventh Circuit has cautioned district courts not to consult legislative history (including failed amendments) when the plain meaning is clear. CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225, 1227-28 (11th Cir.2001). Therefore, the Court finds that RICO authorizes the injunctive and declaratory relief that Plaintiffs are seeking. 6. MCCARRAN-FERGUSON ACT Defendants contend that the McCarran-Ferguson Act, 15 U.S.C. § 1012(b) (the “Act”), bars several named Plaintiffs’ claims in Alabama, California, Florida and Louisiana. Section 1012(b) provides that “[n]o Act of Congress' shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). The Act was enacted for the express purpose of rendering the antitrust laws inapplicable to insurers who are regulated by the several states, and in particular to allow insurers to form trade associations and share underwriting data. Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 221-22, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). The Act “reverses the doctrine of preemption in cases involving state insurance law, such that a state law specifically regulating the business of insurance shall preempt a conflicting federal law unless that federal law specifically relates to the business of insurance.” Blackfeet Nat’l Bank v. Nelson, 171 F.3d 1237, 1243 (11th Cir.1999) (stating that McCarron-Ferguson was passed to “make clear that states generally retained the power to regulate the business of insurance”). The Eleventh Circuit has directed a three part inquiry for the preemption analysis. First, was the relevant state law enacted “for the purpose of regulating the business of insurance?” Second, is the matter at issue (provider agreements) properly considered the “business of insurance?” Third, does the federal act (the Act) “specifically relate to the business of insurance?” Id. at 1240, 1245-46. In its previous decisions, the Court has not specifically dealt with the issue of whether the Defendants’ challenged activities vis-à-vis the Providers fall under the “business of insurance.” The meaning of insurance in this context is a question of federal law. Blackfeet, 171 F.3d at 1245; Royal Drug Co., 440 U.S. at 205, 99 S.Ct. 1067; St. Bernard Hosp. v. Hosp. Serv. Ass’n of New Orleans, Inc., 618 F.2d 1140 (5th Cir.1980); Gen. Motors Corp. v. Caldwell, 647 F.Supp. 585 (N.D.Ga.1986). Some courts have found that similar provider contracts do not constitute the business of insurance. See Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979); St. Bernard Hosp. v. Hosp. Serv. Ass’n of New Orleans, Inc., 618 F.2d 1140, 1144-45 (5th Cir.1980), cert. denied, Hospital Service Association of New Orleans, Inc. v. St. Bernard General Hospital, Inc., 466 U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1984) In Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), the Supreme Court held that contracts setting the amount of reimbursement health insurance companies would pay to pharmacies providing drugs to insureds were not within the business of insurance. Similarly, in Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982), the Court held that a peer review process for determining the reasonableness of health care claims was outside of the business of insurance. Through Royal Drug and its progeny, the Supreme Court articulated a three-part test in determining whether a practice falls under the business of insurance: “first, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 120, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982). It is unclear whether the provider agreements at issue here constitute the “business of insurance” within the meaning of the Act. Blackfeet National Bank v. Nelson, 171 F.3d 1237, 1245 (11th Cir.1999); Espinoza v. Union Sec. Life Ins. Co., 1996 WL 380702, at *2 (N.D.Ga. Jan. 24, 1996). In the instant case, the provider agreements generally are fee-for-service agreements, which merely minimize the costs Defendants must incur to fulfill their underwriting obligations. See Liberty Glass Co. v. Allstate Ins. Co., 607 F.2d 135, 137 (5th Cir.1979) (finding that service and price agreements between automobile insurers and glass installers for covered automobile glass replacement was not the “business of insurance”). Some lower courts have found that the relationship between insurers and service providers falls outside the “business of insurance.” See, e.g., St. Bernard Hosp., 618 F.2d at 1144-45 (contract between mutual insurance association and non-member hospital was not the business of insurance because the purpose of the agreement was to minimize the insurer’s costs, rather than to spread risk). Moreover, the SAC alleges practices which clearly do not deal with the transfer or spreading of a policy-holder’s risk. The provider contracts are simply business contracts that allow Defendants to carry out their obligations to their insureds. While some type of provider agreement may be necessary for the Defendants’ plans to exist, “it does not follow that because an agreement is necessary to provide insurance, it is also the ‘business of insurance.’ ” Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 214, n. 9, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). Even though the provider contracts might inure to the benefit of policyholders, they are still not part of the core insurance policy. Defendants counter that the Court’s previous decisions in the subscriber track provide support for their contentions that the claims are created by an underlying insurance policy. See SAC ¶ 75 (“These services are provided based upon the fundamental premise that, if the services are covered by Defendants and are medically necessary, the Plaintiffs and class members will be compensated in a timely manner... ”). In this case, however, the relationship between the provider and insurance company is an arrangement for the purchase of goods and services. Roy al Drug, 440 U.S. at 214, 99 S.Ct. 1067. Thus, it is distinguishable from the Subscriber Track, where the holders of the insurance policies were pursuing RICO claims. Defendants also encourage the Court to adopt a more expansive interpretation of the “business of insurance.” Citing United States Dep’t of the Treasury v. Fabe, 508 U.S. 491, 506, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993), the Defendants contend that the reach of the Act is not confined to the business of insurance; rather, the inquiry is focused on whether application of federal law impairs, interferes or conflicts with a State’s broad regulatory authority over the business of insurance. Fabe, 508 U.S. at 505, 113 S.Ct. 2202. Defendants point to Fabe’s language which interprets the Act to preclude any suit that seeks to supplant state efforts directly or indirectly “aimed at protecting or regulating” the performance of an insurer’s obligations or ensuring that policyholders “ultimately will receive payment.” Id. at 506, 113 S.Ct. 2202. Nothing in Fabe, however, suggests that the Act sweeps within its scope all laws that affect insurance companies. Indeed, the Supreme Court in Fabe supported the interpretation of the “business of insurance” as focusing on the relationship between the insurance company and the policyholder. See Blackfeet National Bank v. Nelson, 171 F.3d 1237, 1246 (11th Cir.1999). Here, Plaintiffs’ relationship to the insurer is ancillary to the actual insurance contract itself. See Royal Drug, 440 U.S. at 216, 99 S.Ct. 1067. The contracts of insurance were between Defendants and the insureds, not between Defendants and the individual providers (service agreements). Accordingly, the Court finds that the relationship between insurers and providers falls outside the “business of insurance” and thus the Act does not pose a preemption issue. 7. ARBITRABLE PRIMARY RICO CLAIMS Defendants argue that secondary RICO claims (Counts I and II) that derive from primary RICO claims, 18 U.S.C. § 1962(a) and (c) (Count III), ordered to arbitration or abandoned by Plaintiffs must be dismissed, because Plaintiffs may not recover for secondary violations without first establishing primary RICO violations. The issue presented by Defendants is indeed a novel one. Yet Defendants are unable to cite controlling case law on point that convinces this court to override Plaintiffs’ prerogative in framing their claims. Defendants first submit that Plaintiffs must validly assert a direct RICO claim in order to maintain secondary claims including conspiracy and aiding and abetting. This is not possible, according to Defendants, given the Plaintiffs’ abandonment of arbitrable direct RICO claims. It is well established that if a plaintiff fails to state a claim of a primary RICO violation, then the plaintiffs civil conspiracy claims necessarily fails. See, e.g., GE Invest. Private Placement Partners II v. Parker, 247 F.3d 543, 551 n. 2 (4th Cir.2001); Efron v. Embassy Suites, P.R., Inc., 223 F.3d 12, 21 (1st Cir.2000); Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1064 (2d Cir.1996), vacated on other grounds, 525 U.S. 128, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir.1993); Religious Technology Center v. Wollersheim, 971 F.2d 364, 367 n. 8 (9th Cir.1992); Danielsen v. Burnside-Ott Aviation Training Ctr., Inc., 941 F.2d 1220, 1232 (D.C.Cir.1991); Craighead v. E.F. Hutton & Co., 899 F.2d 485, 495 (6th Cir.1990); In re Edwards, 872 F.2d 347, 352 (10th Cir.1989). Civil conspiracy is not an independent cause of action; it is a liability spreading device based upon a viable underlying cause of action. See United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1294 (11th Cir.2001); Beck v. Prupis, 162 F.3d 1090, 1099 n. 18 (11th Cir.1998), aff'd, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) (analyzing whether a RICO conspiracy Plaintiff can recover against a defendant when a co-conspirator commits any overt act in furtherance of the conspiracy, even if the overt act is neither a predicate act of racketeering or an actionable primary RICO violation). Civil (not criminal) common law conspiracy principles have been held to be applicable to secondary RICO claims. Beck, 529 U.S. at 500-01 n. 6, 120 S.Ct. 1608. Similarly, to be guilty of criminal aiding and abetting under 18 U.S.C. § 2, the prosecution must first show that a substantive offense was committed. United States v. Pareja, 876 F.2d 1567, 1568 (11th Cir.1989); see also United States v. Lozano-Hernandez, 89 F.3d 785, 790 (11th Cir.1996). Civil common law principles of aiding and abetting lead to the same result. Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983). Defendants use these preceding principles to argue that Plaintiffs cannot seek secondary liability by proving, without seeking judgment or damages for, primary claims that are subject to arbitration. Further, those direct RICO determinations must be made before an arbitrator. Defendants’ attempt to piggyback on this line of reasoning is to no avail. Defendants do not cite to any controlling authority that squarely supports their theory. In this case, as they must, Plaintiffs argue that, in the course of asserting their secondary RICO claims, they have pled and intend to prove that each Defendant committed primary RICO violations. Nevertheless, Plaintiffs need not pursue a discrete claim, ie. seek judgment and damages, for the underlying violation that is the object of the conspiracy or the alleged aiding and abetting violation. Put another way, while it may be necessary for Plaintiffs to plead a violation of the direct RICO statute in order -to properly assert the secondary claims, it is not mandatory that they also seek relief for the underlying violation. Adoption of this principle permits Plaintiffs to remain masters of their own complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Indeed, the Supreme Court’s Beck decision confirms that Section 1962(d) can be used to sue a defendant who might not have violated one of the substantive provisions of Section 1962. Beck, 529 U.S. at 506-07, 120 S.Ct. 1608. Defendants’ theory is therefore a non-starter. Close inspection of the substantive principles contained in the secondary causes of action confirms this view. Under common law civil conspiracy law, Plaintiffs need not sue all co-conspirators. Wilson P. Abraham Constr. Corp. v. Texas Indus., Inc., 604 F.2d 897, 904 n. 15 (5th Cir.1979); Non-Ferrous Metals, Inc. v. Saramar Aluminum Co., 25 F.R.D. 102, 104 (N.D.Ohio 1960). Moreover, in aiding and abetting prosecutions, the principal who committed the offense need not be convicted, joined or even identified. United States v. Campa, 679 F.2d 1006, 1013 (1st Cir.1982); United States v. Perry, 643 F.2d 38, 45 (2d Cir.1981); United States v. Ruffin, 613 F.2d 408, 412-13 (2d Cir.1979). Therefore, it would be illogical to preclude Plaintiffs from pursuing secondary RICO claims simply because they are not seeking judgment or relief from the underlying claim. While Defendants contend that there is no meaningful distinction between proving and pursuing a direct RICO violation, nevertheless, the fact remains that Plaintiffs as masters of their complaint still face a hurdle of proving every substantive element of their primary and secondary RICO claims in order to obtain the relief they request. B. ERISA PREEMPTION Defendants renew their reliance on the preemption provision of the Employee Retirement Income Security Act of 1974 (“ERISA”) in seeking to dismiss certain claims in the SAC. Defendants contend that the SAC’s new set of allegations reveal that Plaintiffs’ claims are not only substantially preempted by ERISA’s two species of preemption, Section 502 and Section 514, but also to the extent that Plaintiffs seek to pursue their non-participating provider claims through ERISA, those claims must be dismissed for failure to exhaust administrative remedies. ERISA applies to any employee benefit plan, provided that it is established or maintained by an employer or employee organization engaged in commerce or in any industry or activity affecting commerce. 29 U.S.C. § 1003(a). The statute explicitly includes plans provided through the purchase of insurance. 29 U.S.C. § 1002(1). Section 514(a), the specific preemption provision, states that this federal statute preempts all state laws insofar as they “relate to” any employee benefit plan. 29 U.S.C. § 1144(a) (1988). A state law “relates to” a covered employee benefit plan “if it has a connection with or reference to such a plan.” District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 129, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). The Eleventh Circuit has recognized two types of ERISA preemption; complete preemption and defensive, or conflict, preemption. ERISA’s specific preemption provision under Section 514 triggers conflict preemption, which applies where the court has subject matter jurisdiction over the case but the plaintiffs claim is subject to ERISA’s express preemption provision, 29 U.S.C. § 1144(a) (i.e. if any of plaintiffs’ claims “relate to any employment benefit plan”). This “defensive” preemption does not provide independent federal subject matter jurisdiction. Rather, it provides an affirmative defense to state law claims. See Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1211 (11th Cir.1999). This Court has had occasion to consider the issue of ERISA preemption in a prior iteration of Plaintiffs’ complaint and previously found that Plaintiff providers in the Shane consolidated provider-track action could “bring their breach of contract claims free of the shadow of ERISA preemption.” In re Managed Care Litigation, 135 F.Supp.2d 1253, 1268 (S.D.Fla.2001); see also Cutler v. Humana Health Plan, Inc. No. 00-630, slip. op. at 1-2 (S.D.Fla. Mar. 7, 2001) (finding no ERISA preemption based upon provider’s breach of contract and violations of Florida statutory law claims), Blackshear v. United Health Care of Florida, Inc., No. 00-1334, slip. op. at 2 (S.D.Fla. May 4, 2001) (same). The analysis previously performed by the Court, however, was in accordance with Section 514(a). This Court reasoned that “state law claims brought by health care providers too tenuously affect ERISA plans to be preempted by the Act.” See In re Managed Care Litig., 135 F.Supp.2d at 1268 (citing Lordmann Enterprises, Inc. v. Equicor, Inc., 32 F.3d 1529, 1533 (11th Cir.1994)). Furthermore, the Court found that Plaintiffs’ claims that Defendants breached their contracts by bundling and downcoding did not require plan interpretation so as to “relate to” any ERISA plan. See id. at 1268. On the other hand, there is another type of preemption provided by Section 502(a) of ERISA’s statutory scheme, which Defendants urge the Court to apply to a substantial number of claims in the most recent complaint. This complete preemption, or “super-preemption,” arises from Congress’s creation of a comprehensive remedial scheme in 29 U.S.C. § 1132 for loss or denial of employee benefits. See Butero v. Royal Maccabees Life Insurance Co., 174 F.3d 1207 (11th Cir.1999). Complete preemption applies where “Congress preempts an area of law so completely that any complaint raising claims in that area is necessarily federal in character and therefore necessarily presents a basis for federal jurisdiction.” Kemp v. Int’l Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir.1997). This doctrine serves as an exception to the “well-pleaded complaint rule” and even permits a defendant to remove a case to federal court even when only state law claims are alleged in the complaint. Id. Congress has established complete preemption in the realm of ERISA under Section 502(a), which provides that ERISA is the exclusive cause of action for the recovery of benefits under an ERISA plan. 29 U.S.C. § 1132(a); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Therefore, put more succinctly, if a state law claim is in fact properly one that arises under ERISA’s enforcement provisions, e.g. a claim for benefits, ERISA complete preemption should apply. Id. The Court will accordingly bifurcate its discussion of ERISA preemption. 1. SECTION 502 PREEMPTION a. Express Contract Claims (Count V) Defendants assert that the Provider Plaintiffs’ breach of contract claims are subject to complete preemption under Section 502(a) because they are attempting to assert an alternative basis, outside of ERISA, for enforcing plan obligations to pay for covered, medically necessary services. Confronted with this Court’s clear precedent of holding that ERISA preemption is inapplicable to the Plaintiffs’ state law contract claims, Defendants claim that regardless of whether there was ordinary preemption under Section 514(a), ERISA nonetheless preempts all the state law contract claims, whether or not they relate to an ERISA plan, because Plaintiffs seek to impose an alternative enforcement mechanism for benefits that are created by ERISA plans. Specifically, Defendants argue that under Rush Prudential v. Moran, 536 U.S. 355, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002), the Supreme Court made stark the applicability of Section 502(a) to this context. At the outset, the Court notes that Section 502(a)(1)(B) provides that an ERISA plan “par