Full opinion text
MEMORANDUM OPINION AND ORDER REBECCA R. PALLMEYER, District Judge. Plaintiff Omnicare, Inc., is the nation’s largest institutional pharmacy — that is, a provider of pharmacy services to persons in health care institutions. UnitedHealth Group (“UnitedHealth”) and PacifiCare Health Systems, Inc. (“PacifiCare”) are health insurers who provide prescription drug coverage to senior citizens under the Medicare “Part D” program. To qualify under that program, a health insurer must demonstrate to federal regulators that it can provide pharmacy services to individuals in long-term care facilities; a contract with an institutional pharmacy such as Omnicare is one way of doing so. Both UnitedHealth and PacifiCare entered into negotiations with Omnicare, and United-Health signed an agreement with Omni-care before UnitedHealth was certified under the Medicare Part D program. During the same time period, United-Health and PacifiCare were engaged in merger talks that culminated in a Merger Agreement between the two parties. Pa-cifiCare broke off its negotiations with Omnicare a week after signing the Merger Agreement and then proceeded to obtain federal certification without Omnicare in its contract “network.” PacifiCare later resumed contract talks with Omnicare, ultimately striking a deal far more favorable to it than the one UnitedHealth had achieved. Then, once the UnitedHealth-PacifiCare merger was complete, United-Health abandoned its own deal with Omni-care and took advantage of the more favorable terms in PacifiCare’s contract with Omnicare. In this lawsuit, Omnicare contends that the merger violated antitrust laws and that Defendants are liable for fraud. The court denied Defendants’ motion to dismiss, see Omnicare, Inc. v. UnitedHealth Group, Inc., 524 F.Supp.2d 1031 (N.D.Ill.2007), and the parties proceeded with discovery. Defendants now move for summary judgment on these claims and, for the reasons that follow, the motion is granted. FACTUAL BACKGROUND I. Medicare Part D Medicare is a health insurance program administered by the federal government in order to provide coverage to elderly and disabled Americans. See 42 U.S.C. § 1395 et seq. In 2003, Congress enacted the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, which created a voluntary prescription drug benefit for seniors called Medicare Part D. Pub. L. No. 108-173, 117 Stat. 2066 (2003). Under Part D, the Centers for Medicare & Medicaid Services (“CMS”) make payments to Prescription Drug Plan (“PDP”) sponsors — typically insurance providers. PDPs, in turn, pay prescription drug providers — retail and institutional pharmacies' — -for providing pharmacy services to the individuals enrolled in the PDP. See 42 U.S.C. § 1395w~ 115. The PDP sponsors are compensated in two ways: through payments from CMS and through premiums paid by enrollees. Id. The prescription drug providers receive their payments pursuant to contracts with the PDP sponsors. To participate in Part D, which went into effect on January 1, 2006, PDP sponsors were required to be approved by, and enter into a contract with, CMS. (Bagley Report ¶ 17, App. 155 to Mem. in Supp.) CMS divided the United States into thirty-four “PDP regions,” and a PDP sponsor had to be approved for each region in which it wished to operate. As part of its bid for CMS approval, a Part D sponsor needed to demonstrate that it had sufficient pharmacy providers in its network in the PDP region to service both retail customers and patients in long-term care facilities (“LTCs”). (3/16/05 Long-Term Care Guidance, App. 57 to Mem. in Supp.) PDPs were required to provide a list of contracts with pharmacies that serve LTCs in order to “ensure that all of [the sponsor’s] future Part D enrollees who are institutionalized can routinely receive their Part D benefits through the plans’ network of pharmacies” rather than through “out of network” pharmacies. (Id. at 4.) CMS referred to this requirement of nearby, in-network pharmacies providing services to LTC enrollees as the “convenient access” standard. (Id.) In addition, CMS required PDP sponsors to offer a contract to any pharmacy willing and able to participate in the sponsor’s LTC network. (Id.) In 2006, 23 million out of 42 million eligible seniors participated in Medicare Part D. (Ex. A to Rubinfeld Decl. ¶31, Attach, to Mem. in Opp’n.) Seniors can become enrolled in a PDP in one of two ways. First, seniors eligible for Medicare can simply choose to participate in Part D. Second, individuals who also qualify for Medicaid — another federal insurance program, one designed to provide coverage for individuals and families with low incomes- — are automatically enrolled by the government. These low-income seniors, called “dual eligibles” because they are eligible for both Medicare and Medicaid, are enrolled in PDPs whose premiums are lower than an established cap set by CMS. (Id. ¶ 34.) These enrollees are technically free to switch to any other plan that falls below the cost threshold established by CMS, but a number of factors — such as the physical impairment of these enrollees and bureaucratic obstacles- — -make this a rarely-used option. (Rubinfeld Decl. ¶ 6(c), Attach, to Mem. in Opp’n.) Dual eligibles are fully subsidized by the federal government, which pays for both premiums and co-payments for the drugs, and constitute up to 65% of LTC residents. (Ex. A to id. ¶¶ 34-35.) Overall, though, Omnicare concedes that all individuals living in LTCs, including both dual-eligibles and voluntary enrollees, comprise only about 3-5% of total PDP enrollees. (Mem. in Opp’n at 6 n. 7.) Defendants’ negotiations and resulting contracts with Omnicare, the largest LTC pharmacy in the nation, covered only LTC patients. (Omnicare’s Supplemental Statement of Undisputed Material Facts ¶¶ 23, 31.) II. Merger UnitedHealth and PacifiCare, insurance providers who sought CMS certification as PDP sponsors in 2005, initiated merger discussions in January 2005. (Defs.’ 56.1 ¶ 16.) As talks between the two entities intensified in the weeks leading up to signing the Merger Agreement on July 6, they entered into two separate confidentiality agreements dictating how information deemed “confidential” or “highly confidential” was to be exchanged during the “due diligence” period. (Defs.’ 56.1 ¶ 17.) Although there were some failures to comply with terms of the confidentiality agreements (Omnicare’s Resp. to Defs.’ 56.1 ¶¶ 17-19), the purpose for the agreements was apparent. The first .confidentiality agreement, designed to protect confidential information, made that information available only to members of United-Health’s due diligence team and prevented them from sharing it with others outside that team. (Defs.’ 56.1 ¶ 17.) The second confidentiality agreement created a “clean room” for highly confidential material and permitted only members of UnitedHealth’s “clean team,” a subgroup of the due diligence team, to have access to the materials. (Id. ¶ 18.) In addition, prior to the sharing of any information between the two parties, PacifiCare’s outside antitrust counsel, Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”), developed a “data room” where Skadden attorneys reviewed all PacifiCare’s documents to determine the propriety of sharing them with United-Health. (Id. ¶ 19.) Although much of the due diligence process had no relationship to the companies’ plans for Part D, several meetings and other exchanges of information concerning Part D did take place. On June 9, 2005, UnitedHealth and PacifiCare met specifically to discuss PacifiCare’s Part D program. (Id. ¶ 22.) At the meeting, Jacqueline Kosecoff, an Executive Vice President at PacifiCare, made a presentation entitled “Part D Prescription Drug Program,” which included general information regarding administrative expense estimates and information about RxSolu-tions, a wholly-owned subsidiary of Pacifi-Care responsible for negotiating contracts with pharmacies on PacifiCare’s behalf. (Part D Prescription Drug Program, App. 81 to Mem. in Supp.) From Kosecoffs presentation itself and notes prepared after the meeting, it appears that no pricing information was provided in the presentation outside of an assertion that Pacifi-Care would follow “an aggressive pricing strategy.” (Id.; 6/17/05 Memo, App. 26 to Mem. in Supp.) Tom Paul, a UnitedHealth official, noted in a summary prepared after the meeting that PacifiCare provided only “little information” that was “very general,” and stated that, based on the meeting, “[t]here is insufficient information to draw any due diligence conclusions about this important program.” (Id.) To that end, UnitedHealth sent PacifiCare a list of questions concerning Part D on June 22. (Defs.’ 56.1 1124.) In Pacifi-Care’s response to the document, Pacifi-Care disclosed its “expected average brand discount off of AWP,” which was in fact the same rate that Omnicare ultimately agreed to in its contract with Paci-fiCare’s agent, RxSolutions, in December 2005. (Part D Questions, Ex. 50 to Mem. in Opp’n, at UN008817.) At a meeting between the parties on June 28, 2005, approximately one week prior to the signing of the Merger Agreement, PacifiCare provided UnitedHealth with Part D information regarding “(1) product and distribution strategies, (2) benefit plan designs, and (3) financial assumptions,” including PacifiCare’s average low and average high plan pricing information from a sampling of regions. (Defs.’ 56.1 ¶ 23.) On July 2, Peter Frank, an outside actuary retained by UnitedHealth who does not appear to have formally been a member of UnitedHealth’s due diligence team, met with PacifiCare officials to exchange information about the Part D program. (Id. ¶ 25.) At this meeting, Pa-cifiCare disclosed national average bid information for its Part D plans, and Frank provided corresponding information concerning UnitedHealth’s Part D business. (Id.) The following day, Frank prepared a written summary of the meeting for Uni-tedHealth officials, in which he disclosed the profit margin PacifiCare expected in its Part D bids. (7/5/05 e-mail from Frank to Jelinek, App. 41 to Defs.’ 56.1.) Frank also emphasized that his report was lacking in many specifics, including the names of the PacifiCare officials with whom Frank met “in case [the UnitedHealth officials receiving the report] may know any of them.” (Id.) Frank further emphasized that “no information on regional bids or on distribution of expected enrollment by region is available. What you see [in the report] is most of what we have.” (Id.) Frank also noted that he “prepared the report quickly under some time pressure to get a copy to the lawyers so that any potential competitively sensitive info could be removed from the report.” (Id.) Edward Lagerstrom, the head of United-Health’s Corporate Development at the time of the merger, agreed that United-Health received limited information, stating in his deposition that UnitedHealth “wanted to be absolutely clear that [Pacifi-Care’s PDP was not] going to lose a lot of money, but I did not need to see the long-term care contracts, particularly given that our antitrust attorney said that we could not see them. So we did not see them.” (Lagerstrom Dep. at 218:8-14, App. 22 to Mem. in Supp.) On July 6, 2005, the two parties signed the Agreement and Plan of Merger (“Merger Agreement”), which announced UnitedHealth’s planned purchase of Pacifi-Care for approximately $8.8 billion. (Defs.’ 56.1 ¶ 6.) Section 5.01 of the Merger Agreement prohibits PacifiCare from entering into any contracts before the consummation of the merger, other than those entered into in the ordinary course of business, “without [UnitedHealth’s] pri- or written consent ... that involves [Paci-fiCare] or any of its Subsidiaries incurring a liability in excess of three million dollars.” (Merger Agreement § 5.01(a)(x), Ex. 72 to Mem. in Opp’n.) The December 2005 contract between RxSolutions and Omnicare generated about $130 million in revenue for Omnicare, which would appear to trigger the requirement of the Merger Agreement that PacifiCare secure United-Health’s approval for the Omnicare contract. (Capell Decl. ¶ 6, Attach, to Mem. in Opp’n.) However, Defendants have also provided a Company Disclosure Letter (“Letter”), referred to in § 5.01 of the Merger Agreement, which appears by its terms to carve out an exception to the approval requirement. Specifically, the Letter provides that PacifiCare “and its Subsidiaries may enter into or amend any Contracts relating to their Part D standalone business” without seeking approval from UnitedHealth. (Company Disclosure Letter § 5.01(a)(1), Attach, to Phanstiel Decl., App. 47 to Mem. in Supp.) The United States Department of Justice (“DOJ”) reviewed the terms of the Merger Agreement to determine its potential effects on competition. (Defs.’ 56.1 ¶¶ 7-8.) Subject to certain divestitures, none of which directly concerned Part D, DOJ approved the merger, and the transaction closed on December 20, 2005. (Id.) III. PDP Approval & Negotiations with Omnicare In addition to working on the merger, both UnitedHealth and PacifiCare spent much of the 2005 calendar year developing their PDPs to obtain approval from CMS for 2006. As explained above, a critical component to achieving CMS approval was entering into contracts with prescription drug providers, both for retail and LTC customers. To assist in the negotiations with these pharmacies, potential PDP sponsors contracted with pharmacy benefit managers (“PBMs”), who would act as brokers, negotiating contracts with institutional pharmacies on behalf of potential PDPs. Walgreens Health Initiatives, Inc. (“WHI”) served as the PBM for UnitedHealth (and other PDP sponsors) in negotiating contracts with certain pharmacies on behalf of UnitedHealth. (Defs.’ 56.1 ¶ 10.) Pacifi-Care utilized RxSolutions, an internal PBM that is a wholly-owned subsidiary of PacifiCare, to conduct its negotiations. (Id. ¶ 3.) Omnicare is the largest pharmacy servicing LTC facilities in the country. (Ex. A to Rubinfeld Decl. ¶ 21, Attach, to Mem. in Opp’n.) In June 2005, Omnicare distributed its template pharmacy-network contract, which included a section called the “18 Patient Protections” (the “Patient Protections” or “Protections”). (Defs.’ 56.1 ¶ 37.) According to Omnicare, the provisions grew out of an awareness of Omni-care’s importance in the LTC marketplace and were designed primarily “to address the specific health and safety needs of nursing home residents, who require a higher standard of care.” (Mem. in Opp’n at 8.) The Protections did provide certain benefits to plan enrollees; for example, one provision provision granted residents up to 180 days to transition from drugs not included in the plan to drugs that are, and another provision required the PDP sponsor to waive certain requirements that could delay the provision of drugs to LTC residents. (Mem. in Opp’n at 8.) Omnicare further contends that the Patient Protections represent best clinical practices. Indeed, some potential defense witnesses acknowledged this in their depositions. (Bagley Dep. 260:1-13, Ex. 96 to Mem. in Opp’n; Infante Dep. 158:17-19, Ex. 164 to Mem. in Opp’n.) The parties differ greatly in their characterizations of the Patient Protections, however. Defendants argue that many of the Patient Protections in fact violate Medicare regulations and would render a PDP ineligible to receive reimbursement from CMS. (Infante Memo at 1, App. 133 to Mem. in Supp.) In the opinion of outside counsel Marie Infante, who was retained by UnitedHealth, the violations would render UnitedHealth ineligible to receive reimbursement from CMS under Part D for its provision of drugs to LTC patients. (Id.) Among other objections concerning the scope of the coverage afforded by the Patient Protections, Infante wrote that the Protections also impermissibly shifted the obligation of the PDP to respond to inquiries from enrollees to Omnicare. (Id. at 1-3.) Defendants also argue that PDP sponsors “had a rational economic incentive” not to agree to the Patient Protection provisions because those provisions would increase the costs of providing prescription drugs to the LTC patients. (Defs.’ 56.1 ¶ 41.) Omnicare argues that the Protections were in fact in the economic interest of the sponsors because the sponsors had an interest in contracting with Omnicare (based on its large size). (Omnicare’s Resp. to Defs.’ 56.1 ¶ 41.) Further, Omni-care contends, because the Protections were- favorable to potential enrollees, their adoption would enhance the PDPs’ efforts to market themselves to potential enroll-ees. (Id.) A. WHI-Omnicare Agreement On July 29, 2005, after two months of negotiations; WHI, acting as the PBM for UnitedHealth as well as four smaller PDPs, entered into a pharmacy-network agreement with Omnicare (the “WHI-Om-nicare Agreement”). (Defs.’ 56.1 ¶¶ 11, 49.) In these pharmacy network contracts, the pharmacy is reimbursed for prescription drugs at a rate calculated as a percentage discount from the average wholesale price (“AWP”), plus a dispensing fee. . (Id. ¶ 39.) The PDP’s economic interest is to obtain a large discount from AWP, and a small dispensing fee. (Id. ¶ 40.) The Agreement also contained Om-nicare’s 18 Patient Protections, as did all the pharmacy-network agreements that Omnicare entered into prior to the August 1, 2005 deadline for PDPs to submit their LTC networks to CMS. (Id. ¶42.) In addition, the WHI-Omnicare Agreement provided that it would apply to any pharmacy acquired by Omnicare, but did not contain a parallel provision extending its reach to any PDP acquired by United-Health. (Id. ¶ 52.) Omnicare contends that as a matter of interpretation, a PDP acquired by UnitedHealth would “automatically [be] covered under the WHI Agreement,” but the Agreement contains no explicit provision providing for such a contingency. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 52.) Finally, Omnicare acknowledges that the Agreement did not contain any provision “that would have prevented [UnitedHealth] from withdrawing the [Un-itedHealth] Part D plans from the WHI-Omnicare Agreement and switching them to another Part D pharmacy network.” (Id.; Omnicare’s Resp. to Request to Admit No. 21, App. 56 to Mem. in Supp.) B. RxSolutions-Omnicare Agreement The negotiations between Omnicare and RxSolutions, PacifiCare’s internal PBM, were considerably more complicated and drawn out. According to Defendants, Pa-cifiCare’s strategy was to set up its pharmacy networks using the RxSolutions template contract — called an “Any Willing Provider” contract — rather than using contracts prepared by pharmacies. Consistent with that strategy, in 2005, RxSolu-tions did not sign any contract that was prepared by a retail or LTC pharmacy. (Defs.’ 56.1 ¶ 56, 59.) The standard reimbursement rate provided in the RxSolu-tions “Any Willing Provider” contract was substantially more favorable for the PDP than the one established by the WHI-Omnicare Agreement, providing both a lower dispensing fee and a greater discount from AWP. (Id. ¶ 57.) On June 6, 2005, in the course of its negotiations on behalf of PacifiCare, RxSo-lutions sent a copy of its “Any Willing Provider” contract to Omnicare. (Id. ¶ 59.) Later that day, Tim Bien, Omni-care’s Senior Vice-President of Professional Services who was responsible for negotiating pharmacy-network contracts with PBMs, participated in a conference call with RxSolutions and PacifiCare in which Bien stated that he would send a copy of Omnicare’s form contract to RxSolutions. (Id. ¶¶ 36, 60.) Bien did so on June 21. (Id. ¶ 61; 6/21/05 e-mail from Smith to Anchondo, App. 73 to Mem. in Supp.) Both Omnicare and RxSolutions pushed for use of its own form contract as the basis for further negotiations; Robert Hill at Omni-care suggested that RxSolutions make revisions to Omnicare’s form contract, but expressed a willingness for some flexibility by noting that the mark-up “will not commit Prescription Solutions to necessarily using Omnicare’s form of agreement.” (Defs.’ 56.1 ¶ 63; 6/24/05 e-mail from Hill to Cortes, Ex. 91 to Mem. in Opp’n.) By the time of their next conference call on July 6, Bien noted that the parties were still “way off on price,” but PacifiCare agreed to suggest changes to the Omni-care form contract rather than continue to insist upon its own. (Defs.’ 56.1 ¶ 65; Bien Dep. 204:6-205:7, App. 18 to Mem. in Supp.) Róchele Cortes, a Pharmacy Contracting Manager at RxSolutions, did mark up the Omnicare form contract, noting in several places RxSolutions’s position that various provisions, especially the Patient Protections, were either untenable from a business standpoint or violated CMS regulations; as of July 2005, Omnicare refused to agree to a contract that did not contain the Patient Protections. (Defs.’ 56.1 ¶¶ 66-67; App. 75 to Mem. in Supp.) According to Defendants, this impasse caused PacifiCare to conclude it would be unable to reach an agreement with Omni-care prior to the August 1 deadline and therefore broke off the negotiations. (Defs.’ 56.1 ¶ 68.) Omnicare contends in this lawsuit that PacifiCare’s termination of negotiations was actually the result of a conspiracy with UnitedHealth, designed to obtain more favorable rates from Omni-care for both PacifiCare and United-Health. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 68.) On July 14, about one week after PacifiCare and UnitedHealth signed the Merger Agreement, the negotiations between PacifiCare and Omnicare broke down. Róchele Cortes at RxSolutions sent Bien an e-mail stating, “We regret to inform you that based on the Omnicare agreement and the counteroffer rate ... we will not be engaging in a contract at this time with your company for Medicare Part D. Please feel free to contact me with any comments or questions.” (7/14/05 email from Cortes to Bien, App. 78 to Mem. in Supp.) Bien responded by saying, “Thanks for letting me know. We stand ready to negotiate should you decide to do so.” (7/15/05 e-mail from Bien to Cortes, App. 78 to Mem. in Supp.) The next day, RxSolutions Director of Network Relations David Chaney e-mailed Cortes, “This time next year, after we merge with United, they [i.e. Omnicare] will be begging to come in.” (7/15/05 e-mail from Chaney to Cortes, App. 80 to Mem. in Supp.) Cortes responded, “Let them beg!” (7/15/05 e-mail from Cortes to Chaney, App. 80 to Mem. in Supp.) After breaking off negotiations with Om-nicare, PacifiCare determined that its LTC network was 80-90% complete (i.e. Pacifi-Care had contracted with pharmacies within 75 miles of 80-90% of the LTC facilities where it had enrollees). (Defs.’ 56.1 ¶ 72.) Defendants claim that PacifiCare intended to fill in the remaining gaps in its network with smaller, independent pharmacies; according to Omnicare, given how small these independent pharmacies were, that was not a realistic goal. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 72.) In August 2005, CMS declared that PacifiCare’s existing LTC network was deficient and informed PacifiCare that it needed to contract with additional pharmacies. (Defs.’ 56.1 ¶ 77.) According to Cortes, PacifiCare considered approaching Omnicare to make up the gaps in its network; Omnicare disputes this, noting that after negotiations broke down in July, PacifiCare officials commented that Omnicare “shouldn’t hold [its] breath” in waiting to hear back from Paci-fiCare. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 78; 7/15/05 e-mail from Chaney to Cortes, Ex. 100 to Mem. in Opp’n.) In any event, PacifiCare decided that, given the short time frame (three days) that CMS provided to PacifiCare to cure the gaps, PacifiCare could satisfactorily plug the gaps by contracting with Managed Health Care Associates, Inc. (“MHA”), an organization that represented a number of smaller LTC pharmacies and with whom PacifiCare had fewer outstanding disagreements than it had with Omnicare. (Defs.’ 56.1 ¶ 78.) Even with MHA in its network, CMS initially concluded that Pa-cifiCare’s LTC network was still deficient in one region, but after learning that Paci-fiCare in fact had seven LTC pharmacies in the region at issue (the District of Columbia), CMS approved PacifiCare as a national PDP on September 30, 2005. (Id. ¶¶ 80-81.) CMS also certified at least one other national PDP, Humana, without Om-nicare in its network. (Id.) Omnicare changed its strategy in late 2005 and early 2006 to accept contracts with PDPs that did not contain the Patient Protections. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 107.) The reasons for the change, according to Omnicare, were to enable Omnicare to provide coverage for as many of its LTC patients as possible, and to respond to increasing pressure from CMS to do so. (Bien Dep. 127:12-128:4, Ex. 79 to Mem. in Opp’n.) PacifiCare, on the other hand, argues the change in strategy was caused by a weaker negotiating position and a concern that Omnicare might lose clients if it did not contract with more PDPs. Defendants point to an e-mail Bien received from other Omnicare officials that stated, “Two [LTC] facility Executive Directors indicated it would be easier to change pharmacies than to change that many patients ... [which] underlines the need that exists ... to have a contract with [PacifiCare].” (11/30/05 e-mail from Evans to Bien, App. 104 to Mem. in Supp.) Omnicare denies that any threatened loss of business was significant and insists that no such concern had any bearing on its strategy shift in late 2005. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 99.) In any event, it is undisputed that the majority (fifteen out of twenty-one) of the contracts that Omni-care entered into between August 1, 2005 and April 1, 2006 were PDP-written contracts that did not contain the Patient Protections. {Id. ¶43.) As of February 2006, the PDP-written contracts without the Protections governed over one-third of Omnicare’s Part D business (including the RxSolutions contract, described below). {Id. ¶ 83.) Presumably in order to determine whether Omnicare should resume its efforts to contract with PacifiCare, on October 17, 2005, Bien at Omnicare e-mailed Craig Stephens, the Vice President in charge of UnitedHealth’s Part D contracting, asking, “Is there a sense of when United will close the acquisition of Pacifi-Care? When the deal closes, will Pacifi-Care be contracted with Omnicare as a result of the acquisition? Thanks for your help on this.” (Defs.’ 56.1 ¶¶48, 84.) Stephens did not reply to this e-mail before conferring with other UnitedHealth officials, including Ann Tobin, counsel at UnitedHealth. Forwarding Bien’s e-mail, Stephens wrote to Tobin, “Interesting— should we assume PacifiCare has not agreed with Omnicare?” {Id. ¶ 85.) After another e-mail from Bien pressed him for a reply, Stephens finally wrote back on October 31, explaining that “PacifiCare’s Part D offering for 2006 is a unique contract with CMS. If and when the deal closes, PacifiCare will follow their own Part D product strategy throughout the 2006 calendar year.” {Id. ¶ 87.) The next day, Bien forwarded this response to Om-nicare CEO Joel Gemunder, noting his conclusion that “PacifiCare will not be included with the United Part D offering.” {Id. ¶ 93.) Shortly thereafter, Omnicare did contact PacifiCare to resume negotiations. {Id. ¶ 95.) PacifiCare asserts that, even though CMS had approved its LTC pharmacy-network without Omnicare, Pacifi-Care remained interested in negotiating with Omnicare in order to expand its network. {Id. ¶ 96.) Omnicare argues that PacifiCare actually still needed Omnicare, because it was concerned that CMS might heighten the “convenient access” standard by requiring that a PDP’s LTC enrollees reside even closer to the pharmacies that provided their drugs. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 96.) Specifically, Omnicare points to testimony from Angelo Giam-brone, the RxSolutions Vice President of Industry and Network Relations, suggesting PacifiCare was concerned that CMS might be “raising the bar” regarding convenient access standards. (Giambrone Dep. 183:12-19, Ex. 86 to Mem. in Opp’n.) At Bien’s request, in mid-November, Cortes again sent him the RxSolutions form contract, which PacifiCare claims it still wanted to use as the starting point for any negotiations. (Defs.’ 56.1 ¶¶ 95, 97.) Together with the RxSolutions “Any Willing Provider” contract, Cortes sent an-email saying, “We will need to work with this document in order to proceed.” (11/18/05 e-mail from Cortes to Bien, App. 102 to Mem. in Supp.) Omnicare claims that it understood that the form contract proposal was a “take it or leave it” proposition and not an invitation to commence negotiations; in particular, Bien testified that because of time restrictions — Omni-care wanted to finalize its Part D network before January 1, 2006 — -he asked Pacifi-Care and RxSolutions “for their best contract that they would give us, and I believe [the “Any Willing Provider” contract] was purported to be that.” (Omnicare’s Resp. to Defs.’ 56.1 ¶¶ 97-98; Bien Dep. 434:13-435:7, App. 18 to Mem. in Supp.) In any event, after receiving the RxSolu-tions form contract, Omnicare made no attempt to negotiate any of its terms — not even the reimbursement rate — and simply signed the contract on December 6, 2005. (Defs.’ 56.1 ¶¶ 100-101.) Chaney at RxSo-lutions testified that he was surprised that Omnicare made no attempt to negotiate any terms. (Chaney Dep. 124:18-22, App. 67 to Mem. in Supp.) The reimbursement rate in the RxSolutions contract was substantially lower than the rates Omnicare negotiated with other national PDPs, including UnitedHealth — in fact, United-Health’s discount off of AWP in the WHI contract was only 75% of the discount provided in the RxSolutions contract, and Un-itedHealth also paid a larger dispensing fee. (Rubinfeld Deck ¶¶ 11-12, Attach, to Mem. in Opp’n.) Still, at least three small local PDPs, representing less than 1 % of Omnicare’s January 2006 revenues, did negotiate lower rates than the RxSolutions contract contained. (Id.) As described above, Bien had directly asked Stephens whether PacifiCare would become a party to UnitedHealth’s contract as a result of the merger. Yet Omnicare negotiators apparently did not consider the flip side of that question, and the contract contained no provision that precluded IMtedHealth from participating, after the merger, in the agreement that RxSolutions negotiated on behalf of PacifiCare. C. UnitedHealth Joins RxSoIutions-Omnicare Agreement Omnicare contends in this lawsuit that UnitedHealth’s decision in February 2006 to withdraw from the WHI-Omnicare Agreement and join the RxSolutions contract had been planned by UnitedHealth and PacifiCare for a long period of time before the merger was finalized. Omnicare claims that UnitedHealth’s basic strategy is summed up in a document referred to as the “stalking horse memorandum,” first circulated between UnitedHealth and Paci-fiCare officials on September 6, 2005. The two-page memo is titled “United-Health Group’s Pharmacy Management Options.” (Ex. 215 to Mem. in Opp’n, at UN034675.) Page 1 discusses United-Health’s past experiences with PBMs and presents some basic information about RxSolutions, including the fact that it operates solely as an “in-house” PBM for PacifiCare and a description of the services RxSolutions provides. (Id.) The top of page 2 reads, in bold, “Several strategic options need to be considered to capitalize on the value proposition Prescription Solutions can bring to United.” (Id. at UN034676.) The memo then lists three strategic options: “1. Continue to outsource all of United’s PBM services .... 2. Adopt a mixed strategy of outsourcing selected PBM services/functions to external vendors and in source [sic] selected services/functions to Prescription Solutions _ 3. Eventually consolidate all PBM services internally under Prescription Solutions.” (Id.) Under the second option, the memorandum asked, “Is there a role for a central group to manage all PBM services for United whether they are in-sourced or out-sourced to obtain the best financial terms, contracts and service?”, and suggested as a solution, “Use Prescription Solutions as a stalking horse to obtain the best service and contracts.” (Id.) Omnicare contends that this reference to using RxSolutions as a stalking horse demonstrates UnitedHealth’s intention to “surreptitiously obtain more favorable contracts for [UnitedHealth] from vendors such as Omnicare.” (Mem. in Opp’n at 21.) UnitedHealth has a different explanation for its eventual withdrawal from the WHI-Omnicare Agreement. According to Defendants, UnitedHealth began harboring legal concerns about the WHI-Omni-care Agreement in general, and the 18 Patient Protections in particular, as early as August 2005. (Defs.’ 56.1 ¶¶ 117-18.) Indeed, on September 12, two months before negotiations between Omnicare and PacifiCare resumed, Tobin sent Stephens an e-mail saying that UnitedHealth “may be requiring WHI to renegotiate our Om-nicare agreement.” (Id. ¶ 119). On November 9, Attorney Infante warned that there were legal problems with the WHI Agreement (as noted, Omnicare questions whether this decision was reached independently). (Id. ¶ 121.) Around this same time, WHI’s own senior attorney, Kelly Simenson, also concluded that the WHI-Omnicare Agreement, at least as it concerns UnitedHealth, conflicted with Medicare Part D regulations. (Id. ¶ 124.) On December 8, two days after Omnicare signed the RxSolutions contract, UnitedHealth expressed its concerns about the WHI Agreement to Omnicare, apparently for the first time. (Id. ¶ 125.) Later that month, WHI forwarded a copy of the WHI-Omnicare Agreement to Om-nicare, with proposed changes that WHI contended were necessary to bring the agreement into compliance with federal law and regulations. (Id. ¶ 126.) Omni-care concedes that “one or two” other unnamed PDPs raised legal concerns about the Patient Protections, and that several PDPs — including Medlmpact, Caremark, RxAmerica, Coventry, FirstHealth, and Independent Health — signed contracts with Omnicare that did not contain the Protections. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 131.) Bien believed that these objections regarding the Protections, including the claim that the Protections violated CMS regulations, were simply a negotiating tactic. (Id.) In early January 2006, UnitedHealth’s outside counsel proposed an agreement, without many of the Protections, to replace the agreement negotiated on UnitedHealth’s behalf by WHI. (Defs.’ 56.1 ¶ 130.) Defendants claim that UnitedHealth learned of the RxSolutions-Omnicare Agreement in January 2006. (Id. ¶ 132.) Omnicare contends that the evidence recited above — especially the stalking horse memorandum — demonstrates that United-Health both knew of and devised strategy around the RxSolutions contract months before this time. (Omnicare’s Resp. to Defs.’ 56.1 ¶ 132.) Yet on January 11, 2006, Stephens at UnitedHealth e-mailed Giambrone, his counterpart at RxSolu-tions, asking, “Quick question' — do you have a Part D network agreement with Omnicare for LTC pharmacy?” (Defs.’ 56.1 ¶ 132.) Later that day, Giambrone affirmed that RxSolutions/PacifiCare did have such an agreement: “Yes — Do you?” (Id.) Stephens responded twenty minutes later, ‘Tes — we do through WHI. Let’s discuss on Friday.” (Id.) According to Defendants, this correspondence’ marked the first time that UnitedHealth became aware of the RxSolutions contract with Omnicare. (Id.) Following a meeting between Giambrone and Stephens on January 20, Stephens wrote an e-mail to Tobin exploring the possibility that UnitedHealth might benefit from PacifiCare’s advantageous deal with Omnicare: I learned from Angelo [Giambrone of RxSolutions] yesterday that PHS has a favorable agreement in place with Omni-care. We need to understand if we can utilize the [RxSolutions] agreement for our business — this may offer a different approach we can take with Omnicare. Will you discuss/get copy from [Pacifi-Care’s in-house counsel]? (Id. ¶¶ 133-34.) In response, Tobin emailed PacifiCare’s in-house counsel a couple of days later, requesting a copy of the RxSolutions-Omnicare Agreement. “Angelo suggested to Craig that it could be useful to us in finalizing our agreement with Omnicare or that we might even be able to use it,” she wrote. (Id. ¶ 135.) On February 22, 2006, Stephens verbally informed Bien that UnitedHealth would be utilizing the RxSolutions contract, effective April 1, 2006; he confirmed this in writing on February 28. (Id. ¶ 137.) IV. Omnicare files suit Omnicare filed this action against Defendants on May 18, 2006 in the U.S. District Court for the Eastern District 'of Kentucky, the site of Omnicare’s corporate headquarters and many potential witnesses. (Mem. Op. and Order [45] at 6.) The Kentucky district court transferred the matter to this court, relying on a forum selection provision of the WHI-Omni-care Agreement that provided for Illinois courts to have exclusive jurisdiction over disputes “arising under or in connection with” the Agreement. (Id. at 3.) Omnicare claims that, prior to the merger, United-Health and PacifiCare conspired to have PacifiCare obtain the lowest possible price from Omnicare and then switch United-Health’s plan over to the more favorable PaeifiCare-Omnicare contract. In its First Supplemental and Amended Complaint (“Complaint”), Omnicare alleges that Defendants violated the Sherman Act, as well as a parallel Kentucky antitrust statute, by “conspiring] to coordinate their negotiations with Omnicare in order to ... fix and depress the prices paid by defendants to Omnicare for providing those services.” (Am. Compl. ¶ 6.) Omnicare further alleges that Defendants conspired to defraud Omnicare, fraudulently misrepresented their intentions to Omnicare, and were unjustly enriched by their fraud. Defendants moved to dismiss the antitrust claims in the Complaint for failure to state a claim on which relief can be granted. This court denied the motion on September 28, 2007, holding that Omnicare had “pleaded facts which plausibly suggest that the merger agreement constituted a contract, combination, or conspiracy between UnitedHealth and PacifiCare under section 1 of the Sherman Act.” Omnicare, Inc. v. UnitedHealth Group, Inc., 524 F.Supp.2d 1031, 1039 (N.D.Ill.2007). The court further held that Omnicare had pleaded sufficient facts to satisfy the other elements of the antitrust claims, namely, that Defendants’ conduct resulted in an unreasonable restraint of trade, that Omni-care was a proper plaintiff to bring the suit, and that Omnicare had suffered an injury recognized by antitrust laws. Id. at 1039-44. On June 20, 2008, Defendants moved for summary judgment on all claims. On the same date, Omnicare filed a Motion for Partial Summary Judgment Pursuant to Rule 56 Or in the Alternative Motion to Strike, arguing that five affirmative defenses advanced by Defendants fail as a matter of law. The court addresses both summary judgment motions in this opinion. DISCUSSION Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Unlike a motion to dismiss, a motion for summary judgment requires the opposing party to present evidence “showing a genuine issue for trial.” Fed. R. Civ. P. 56(e). A genuine issue of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court will draw all reasonable inferences from the evidence in favor of the nonmoving party, id. at 255, 106 S.Ct. 2505, but the nonmoving party still bears the burden of establishing the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). I. Federal Antitrust Claim Section 1 of the Sherman Act is designed to prevent business entities from entering into collusive agreements. By its terms, section 1 prohibits “[ejvery contract, combination ..., or conspiracy, in restraint of trade.” 15 U.S.C. § 1. In the usual case, a price-fixing conspiracy exists between sellers who agree to artificially set their prices above or below market prices. See Int’l Outsourcing Servs., LLC v. Blistex, Inc., 420 F.Supp.2d 860, 864 (N.D.Ill.2006) (citing Arizona v. Maricopa County Med. Soc., 457 U.S. 332, 348, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982)). Illegal agreements may also be made between buyers who conspire to establish a price below market levels, a situation often referred to as a “buyers’ cartel.” Int’l Outsourcing Servs., 420 F.Supp.2d at 864. To establish a successful section 1 claim against a buyers’ cartel, a plaintiff must prove: (1) the existence of a contract, combination, or conspiracy between buyers; (2) an unreasonable restraint of trade in the relevant market; and (3) an injury caused by the cartel. See Denny’s Marina v. Renfro Prods., 8 F.3d 1217, 1220 (7th Cir.1993). Defendants argue that Omnicare cannot establish the existence of a genuine issue of material fact supporting its claim that Defendants violated section 1 of the Sherman Act. See 15 U.S.C. § 1. Specifically, Defendants argue that Omnicare has not presented sufficient evidence to avoid summary judgment on each of the three elements of the claim outlined above. The court agrees with Defendants that Omni-care has not established a genuine issue of material fact that the Defendants engaged in a contract, combination, or conspiracy in restraint of trade. Although the parties also devoted substantial briefing to the other two elements, the failure to establish a genuine issue on the first element is dispositive of the entire claim, and the court therefore does not consider whether a genuine issue of material fact exists concerning an unreasonable restraint of trade or whether Omnicare was injured as a result of anticompetitive behavior. Omnicare can prove the existence of an agreement through direct or circumstantial evidence. Miles Distribs., Inc. v. Specialty Constr. Brands, Inc., 476 F.3d 442, 449 (7th Cir.2007). Direct evidence is “evidence tantamount to an acknowledgment of guilt,” while circumstantial evidence is “everything else including ambiguous statements.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 662 (7th Cir.2002). When relying on circumstantial evidence to establish the existence of a conspiracy, at least some of the evidence “must tend to exclude the possibility that the alleged conspirators acted independently rather than in concert.” Miles Distribs., 476 F.3d at 449 (citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)). This standard does not, however, require the plaintiff to exclude any possibility that the defendants acted independently. See In re Brand Name Prescription Drugs Antitrust Litig., 186 F.3d 781, 787 (7th Cir.1999). Rather, the standard merely establishes that “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (citing Monsanto, 465 U.S. at 764, 104 S.Ct. 1464). Therefore, while the plaintiff in an antitrust case faces no higher burden to defeat summary judgment than a plaintiff in another case, Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), antitrust law does “limit[ ] the range of permissible inferences from ambiguous evidence in a [section] 1 case.” Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 660 (7th Cir.1987) (quoting Matsushita, 475 U.S. at 588, 106 S.Ct. 1348). Omnicare argues that the voluminous evidence presented with this motion creates a genuine issue of material fact as to the existence of an illegal agreement between UnitedHealth and PacifiCare. First, Omnicare argues that the Merger Agreement between UnitedHealth and Pa-cifiCare by its own terms establishes the existence of a conspiracy in restraint of trade. Second, Omnicare claims that Paci-fiCare’s actions in its contract negotiations with Omnicare were economically irrational unless understood as the product of concerted action with UnitedHealth. Om-nicare’s final argument is that the information exchanged by the merging entities in the period leading up to the merger was competitively sensitive and creates substantial evidence from which a jury could find the existence of a conspiracy. For the reasons explained here, the court concludes that the evidence on which Omnicare relies is at least as consistent with independent action by the Defendants as it is with an unlawful agreement. Accordingly, Defendants are entitled to summary judgment on Count I. A. Merger Agreement The main pillar of Omnicare’s proof of a contract, combination, or conspiracy is the Merger Agreement signed by PacifiCare and UnitedHealth. In denying Defendants’ motion to dismiss, this court held that “Omnicare has pleaded facts which plausibly suggest that the merger agreement constituted a contract, combination, or conspiracy between UnitedHealth and PacifiCare under section 1 of the Sherman Act.” Omnicare, Inc., 524 F.Supp.2d at 1039. At the summary judgment stage, however, merely pleading sufficient facts will not suffice to withstand a motion for summary judgment; rather, the plaintiff must make an affirmative showing of proof that a genuine issue of material fact exists that requires a trial. See Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 607 (7th Cir.2005) (citing Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988)). An examination of the Merger Agreement itself — including the materials incorporated by reference into the agreement — shows that Omnicare has not made such a showing here. Omnicare emphasizes a provision of the Merger Agreement (the “approval provision”) that requires PacifiCare to obtain UnitedHealth’s approval for any transaction, other than those entered into in the ordinary course of business, in excess of $3 million. Specifically, section 5.01 of the Merger Agreement prohibits PacifiCare from “enter[ing] into ... any Contract ... that involves [PacifiCare] or any of its Subsidiaries incurring a liability in excess of three million dollars.” (Merger Agreement § 5.01(a)(x), Ex. 72 to Mem. in Opp’n.) In Omnicare’s view, the approval provision sets such a low threshold that it essentially grants UnitedHealth control over all of PacifiCare’s Part D contracts. In response, Defendants point to exceptions in the Merger Agreement that carve out the Part D contract entered into by RxSolutions from the approval requirement. Most notably, Defendants point to the Company Disclosure Letter (“Letter”) referred to in section 5.01 of the Merger Agreement. Section 5.01 establishes the $3 million ceiling for PacifiCare transactions that do not require UnitedHealth approval, except as “provided in Section 5.01(a) of the Company Disclosure Letter.” (Id.) That Letter specifically authorizes PacifiCare “and its Subsidiaries [to] enter into or amend any Contracts relating to their Part D standalone business .... ” (Company Disclosure Letter § 5.01(a)(1), Ex. 73 to Mem. in Opp’n.) Omnicare has not challenged Defendants’ interpretation of the provision: that it exempts Pacifi-Care from securing UnitedHealth’s approval before entering into a Part D contract. Instead, Omnicare casts doubt on the Letter’s authenticity, arguing that it is only a draft, and characterizes Defendants’ tardy disclosure of the Letter as an “affront to this court.” (Mem. in Opp’n at 37.) None of these reasons provide a basis on which the court is free disregard the letter. Authentication of a document can be made by a “witness with knowledge” who testifies “that a matter is what it is claimed to be.” Fed.R.Evid. 901(b)(1). PacifiCare’s Chief Executive Officer and President at the time of the merger, Howard Phanstiel, confirmed the parties’ interpretation of the Letter, testifying that he “understood that Part D contracts with providers, like institutional pharmacy provider Omnicare, Inc., were exempted” from the approval provision by the Company Disclosure Letter. (Phanstiel Deck ¶¶ 4-5, App. 47 to Mem. in Supp.) Phan-stiel further asserted that the Letter attached to his Declaration was a “true and correct copy” of the Letter, which sufficiently authenticates the Letter under Rule 901(b)(1). {Id. ¶ 5.) Contrary to Om-nicare’s suggestion, the copy of the Letter attached to Phanstiel’s Declaration is not labeled as a “draft,” and Omnicare has presented no other basis for the conclusion that it was not a binding part of the Pacifi-Care/UnitedHealth Merger Agreement. Omnicare’s suggestion that the court should disregard the Letter because it is unexecuted is insufficient in this regard: the Letter is not a separate agreement that required separate execution by the parties, but rather is incorporated by reference into the Merger Agreement based on the explicit reference in § 5.01 of the Agreement. Finally, Omnicare argues that the Defendants’ production of the Letter at this late stage in the proceedings, two years after the action was initially filed, is an “affront to the court.” (Mem. in Opp’n at 37.) The court is also puzzled by Defendants’ regrettable decision to withhold materially beneficial evidence until the summary judgment stage. Nonetheless, nothing in the record casts serious doubt upon the authenticity of the Letter, and the court will not exclude relevant evidence solely on the basis of effrontery. Finding no basis on which to exclude the Company Disclosure Letter, the court must consider it in determining whether a genuine issue exists as to the existence of a conspiracy based on the Merger Agreement. In ruling on the motion to dismiss, the court concluded that the allegation that Defendants “coordinated their decisions regarding PacifiCare’s entry into new agreements” was sufficient to state a claim. Omnicare, 524 F.Supp.2d at 1037. Now at the summary judgment stage, Om-nicare bears the burden of showing that a genuine issue exists as to whether such coordination actually took place. The Company Disclosure Letter explicitly excludes PacifiCare’s Part D negotiations from requiring UnitedHealth’s approval, and Phanstiel stated that, to the best of his knowledge, “PacifiCare did not ask for United’s prior consent to enter into any pharmacy-network contract with Omnicare or any other pharmacy provider.” (Phan-stiel Decl. ÍI7, App. 47 to Mem. in Supp.) All that Omnicare offers in rebuttal is the text of § 5.01 of the Merger Agreement, but as noted above, the relevance of that text is undermined by the Company Disclosure Letter. Omnicare also relies on two consent decrees that the United States entered into with companies accused of violating the Sherman Act to argue that the United-Health-PacifiCare Merger Agreement is anticompetitive. According to Omnicare, the merger agreements in both cases contain similarly restrictive provisions, which DOJ relied upon in determining the existence of a conspiracy in restraint of trade. As an initial matter, the court notes that these decrees have no precedential value. More importantly, the provisions of the merger agreements involved in those other cases are clearly distinct from the approval provision of the UnitedHealth/PacifiCare agreement. The provision in the Merger Agreement between UnitedHealth and Pa-cifiCare is a relatively common feature in merger agreements intended to insure that the acquired company (PacifiCare) does not assume any major liabilities for which the acquiring company (UnitedHealth) would be responsible after the merger. See Antitrust Adviser, supra § 3:74, at 3-270. By contrast, the merger agreement in United States v. Computer Assocs. Int'l, Inc., No. 01-02062, 2002 WL 31961456 (D.D.C. Nov. 20, 2002), contained a provision preventing the acquired company from setting prices below a certain level. Id. at *9. This provision could not be explained in terms of its possible effect on the proposed merger and appeared to be motivated almost entirely by anticompetitive interests. Id. (provision is “extraordinary and not reasonably ancillary to any legitimate goal of the transaction”). Nor does United States v. Gemstar-TV Guide Int'l, Inc., No. 03-0198, 2003 WL 21799949 (D.D.C. July 11, 2003) establish that the UnitedHealth/PacifiCare agreement violates the Sherman Act. In fact, in the Gemstar case, DOJ explicitly sanctioned the use of terms that limit the acquirer’s liability. Id. at *3 (permitting merging parties to agree to “forego conduct that would cause a material adverse change in the value of to-be-acquired assets during the Pre-consummation Period”). As numerous commentators, including Omnicare’s expert and the general counsel of the Federal Trade Commission, have noted, these approval provisions are common practice in mergers, and the presence of one here does not constitute evidence of conspiracy. (Coates Report ¶ 68, Attach, to Mem. in Opp’n; William Blumenthal, The Scope of Permissible Coordination Between Merging Entities Prior to Consummation, 63 Antitrust L.J. 1, 55-56 (Fall 1994).) In the absence of other evidence of a conspiracy, the threshold value of $3 million is not so low as to give rise to an inference of conspiracy. In sum, the Merger Agreement by its own terms did not require UnitedHealth to approve PacifiCare’s Part D contracts. The commonly-adopted provision requiring the acquirer’s approval of certain transactions therefore cannot provide the basis to conclude that a conspiracy in restraint of trade existed. B. Economic Evidence Omnicare next contends that economic evidence demonstrates that Defendants must have entered into an illegal agreement in restraint of trade. Generally, courts will not second-guess business judgments made by a private actor. See Lamb’s Patio Theatre, Inc. v. Universal Film Exchanges, Inc., 582 F.2d 1068, 1070 (7th Cir.1978). Some courts have, however, recognized that evidence that a defendant’s action, if taken independently, would be contrary to its economic self-interest “tend[s] to exclude the likelihood of independent conduct” and may therefore constitute circumstantial evidence in support of a Sherman Act claim sufficient to survive summary judgment. Re/Max Int'l, Inc. v. Realty One, Inc., 173 F.3d 995, 1009 (6th Cir.1999). Omnicare argues that PacifiCare’s bargaining strategy makes no sense in the absence of a conspiracy because a contract with Omnicare was the only practical way for PacifiCare to provide drugs to many of its enrollees in LTC facilities serviced by Omnicare. If PacifiCare had not reached a secret agreement with UnitedHealth, Omnicare con-eludes, its bargaining behavior was so reckless that it endangered PacifiCare’s reputation, its Part D certification by CMS, and even the merger itself. Omni-care also claims that the reimbursement rate it received in the PacifiCare contract is itself evidence of a conspiracy because it was significantly lower than prevailing market rates and could only have been extracted from Omnicare by anticompeti-tive behavior. The court addresses these arguments in turn. 1. PacifiCare’s Bargaining Strategy In mid-July 2005, PacifiCare had not yet been approved by CMS as a national PDP. Given Omnieare’s widely-felt presence in the market, Omnicare argues that Pacifi-Care’s decision to break off negotiations at that point in the CMS-approval process was reckless and made no economic sense. First, Omnicare argues that the decision risked PacifiCare’s ability to get drugs to its enrollees living in nursing homes serviced by Omnicare, which would seriously harm PacifiCare’s brand name with senior citizens. Second, the decision to break off negotiations also put PacifiCare’s certification with CMS at risk. On March 16, 2005, CMS had explicitly told PacifiCare, “We would expect that the plan would seek to enter into a network contract with a pharmacy serving the LTC facility as soon as practicable.” (3/16/05 Long-Term Care Guidance, Ex. 20 to Mem. in Opp’n at 4.) According to Omnicare, by breaking off negotiations with the institutional pharmacy that was likely to service many of Paci-fiCare’s dual eligibles and that possessed exclusive contracts with many of the LTC facilities, PacifiCare jeopardized its CMS certification and risked the loss of $64 million in Part D profits PacifiCare was expecting in 2006. Finally, Omnicare suggests that PacifiCare’s economically-irrational decision to break off negotiations with Omnicare may even have put Pacifi-Care’s planned merger with UnitedHealth at risk, if UnitedHealth thought the loss of the expected PDP profits made the merger no longer desirable. Based on information available in PacifiCare’s public financial statements, Omnicare argues that PacifiCare’s strategy put at risk $64 million in Part D profits, a gain in its market capitalization of $1.2 billion, $243 million in merger-related costs that PacifiCare would have to realize as losses (for tax purposes) had the merger failed, and $60 million in executive bonuses to be paid upon completion of the merger; in exchange, Pacifi-Care stood to gain only $11 million based on better reimbursement rates in the Om-nieare contract over three years. (Coates Decl. ¶ 5, Rubinfeld Decl. ¶ 9, Attachs. to Mem. in Opp’n.) And, if UnitedHealth were to become a party to the RxSolutions contract, the newly-merged entity stood to gain somewhere between $130 and $300 million. These circumstances, according to Omnicare, create a genuine issue of material fact as the economic reasonableness of PacifiCare’s decisions. In defense of its business judgment, Pa-cifiCare relies principally on the fact that its strategy succeeded — PacifiCare’s PDP was certified by CMS without Omnicare and it eventually received a lower rate in its contract with Omnicare. This fact by itself, according to PacifiCare, undermines any challenge to its decision and defeats the contention that PacifiCare’s decision to call Omnicare’s bluff is inconsistent with independent action on the part of Pacifi-Care. The court agrees that the success of PacifiCare’s strategy entitles it to very strong judicial deference, for if business judgments generally deserve deference, see Brack v. Amoco Oil Co., 677 F.2d 1213, 1223 (7th Cir.1982), then successful business judgments deserve even greater deference. In fact, the record shows that Pacifi-Care’s business strategy made sense even without the benefit of hindsight. At the time PacifiCare refused to sign the Omni-care contract and insisted on working from the RxSolutions standard contract, there were several other PDPs — including at least one other national PDP — that also refused to sign Omnicare’s contract before the CMS bid deadline of August 1. In August 2005, CMS informed PacifiCare that its LTC pharmacy network was deficient and that PacifiCare needed to expand its network by contracting with additional pharmacies. Rather than returning to Omnicare, with whom PacifiCare believed there were a number of outstanding issues, PacifiCare thought it could sufficiently patch its pharmacy network by contracting with MHA. CMS ultimately approved Paci-fiCare’s PDP with MHA, and not Omni-care, in its network. Similarly, Humana, another national PDP, contracted with enough other pharmacies to meet the CMS requirements without Omnicare in its network. Omnicare believes its own centrality to a national PDP’s LTC strategy make Pacifi-Care’s insistence upon using its own form contract, initially at the expense of any agreement with Omnicare, irrational and thereb