Full opinion text
OPINION AND ORDER SEIBEL, District Judge. Before the Court is the motion of Defendants Ferring B.V., Ferring Pharmaceuticals, Inc., and Aventis Pharmaceuticals, Inc., (Doc. 103), seeking dismissal of the Amended Consolidated Class Action Complaint (the “Complaint” or “Compl.”), (Doc. 84), of putative representatives of a nationwide Indirect Purchaser Plaintiff class (“Plaintiffs” or “Indirect Purchaser Plaintiffs”), under Federal Rules of Civil Procedure 12(b)(1) for lack of standing and 12(b)(6) for failure to state a claim, and Plaintiffs’ Request for Judicial Notice, (Doc. 109). For the following reasons, Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiffs’ Request for Judicial Notice is DENIED. I. BACKGROUND AND PROCEDURAL HISTORY The facts (but not the conclusions) in the Complaint are assumed to be true for the purposes of this Opinion, Plaintiffs’ claims arise from the manufacture and marketing of DDAVP, an antidiuretic, and its generic equivalents, called desmopressin acetate. (Compl. ¶ 1.) Ferring B.V. is a privately held company organized under the laws of the Netherlands, and Ferring Pharmaceuticals, Inc. is a New York corporation and a subsidiary of Ferring B.V. (collectively “Ferring”) that developed and manufactured DDAVP. (Id. ¶¶ 17-18.) Ferring is the owner of U.S. Patent No. 5,407,398 (the “'398 patent”) that the Patent and Trademark Office (the “PTO”) issued on September 10, 1991, covering a gastrointestinally-absorbable tablet form of DDAVP. (Id. ¶¶ 54, 69.) Previously, Ferring was the owner of two other patents related to DDAVP that had expired, and the inventions claimed therein had entered the public domain. (Id. ¶¶ 50, 51, 54.) Aventis Pharmaceuticals, Inc. (“Aventis”) is a Delaware corporation to which Ferring licensed the exclusive right to market and sell the invention of the '398 patent in the United States. (Id. ¶ 19.) After the '398 patent issued, Defendants filed a new drug application (an “NDA”) with the United States Food and Drug Administration (the “FDA”), and the FDA listed the '398 patent in its publication “Approved Drug Products with Therapeutic Equivalence Evaluations,” commonly known as the “Orange Book” (id. ¶¶ 34, 77), which provides notice concerning patents covering FDA-approved drugs, (id. ¶ 34). When a generic drug manufacturer seeks to produce a generic version of a drug, it may submit an abbreviated new drug application (an “ANDA”) to the FDA to obtain such approval. (Id. ¶ 39.) If a patent is listed in the Orange Book and a generic drug manufacturer believes that the patent is invalid or will not be infringed by the proposed generic drug, it must provide a “Paragraph IV certification” in connection with any ANDA that it files with the FDA. (Id. ¶ 41.) The filing of a Paragraph IV certification is considered a technical act of patent infringement under 35 U.S.C. § 271(e)(2) upon which the branded drug manufacturer may institute a patent infringement lawsuit. (Id. ¶ 43.) The filing of such a lawsuit in turn invokes a thirty-month stay of approval of the generic manufacturer’s pending ANDA, thereby blocking entry of the generic competitor into the market. (Id. ¶¶ 43, 45.) In this case, Barr Laboratories (“Barr”) submitted ANDA No. 76^170 to obtain approval from the FDA to manufacture and sell a generic version of the tablet form DDAVP. (Id. ¶ 83.) The ANDA contained a Paragraph IV certification in which Barr claimed that '398 patent was invalid because Ferring had committed inequitable conduct before the PTO (discussed below). (Id.) On December 13, 2002, in response to Barr’s Paragraph IV certification, Defendants filed a patent infringement suit in the Southern District of New York against Barr, and Barr was therefore stayed from entering the market for thirty months. (Id. ¶ 85.) Similarly, on or about June 9, 2004, Teva Pharmaceuticals USA, Inc. (“Teva”) submitted a separate ANDA to sell a generic version of DDAVP, which included a Paragraph IV certification. (Id. ¶¶ 98-99.) On June 20, 2004, Defendants filed a patent infringement lawsuit against Teva in the District of Delaware, which also subjected Teva to the thirty-month stay. (Id. ¶¶ 100-01.) The inequitable conduct to which Barr’s and Teva’s Paragraph IV certifications referred related to the following facts. The PTO had twice rejected Ferring’s application for the '398 patent on grounds that the '398 patent would be obvious in light of Ferring’s prior DDAVP patents, (id. ¶¶ 58-64), which rejection was affirmed by the Board of Patent Appeals, (id. ¶¶ 65-66). Ferring responded by filing an amendment after appeal, which it supported by five declarations that purported to be from “non-inventors,” each of whom affirmed to the PTO that the prior DDAVP patents did not teach the art in the '398 patent and thus render the '398 patent obvious. (Id. ¶¶ 67-68.) In other words, Ferring submitted declarations from people purportedly unaffiliated with Ferring to the effect that the prior DDAVP patents did not make the '398 patent obvious and thus unworthy of patent protection. After the amendment addressing the PTO’s concern regarding prior art, as to which the PTO had specifically asked for “non-inventor” evidence, (id. ¶ 60), the PTO issued the '398 patent. (Id. ¶ 69.) Unbeknownst to the PTO, however, three of the declarations were submitted by paid consultants of Ferring who failed to disclose their relationship with the company, despite the PTO’s request for objective, non-inventor testimony. (See id. ¶¶ 60, 70-76, 86.) On February 7, 2005, the district court in Defendants’ infringement suit against Barr granted summary judgment to Barr, and found the '398 patent unenforceable. (Id. ¶ 87.) The district court determined that Ferring had deceived the PTO by submitting declarations to the PTO that purported to be made by “non-inventors,” when in fact the declarants had “close and undisclosed long-standing associations” with Ferring, and that without the declarations, the '398 patent would not have issued. (Id. ¶¶ 87, 89); see Ferring B.V. v. Barr Labs., Inc, No. 02-CV-9851, 2005 WL 437981, at *9-10 (S.D.N.Y. Feb. 7, 2005) . The United States Court of Appeals for the Federal Circuit affirmed the district court’s decision on the patent’s unenforceability, finding ample evidence of Ferring’s intent to deceive the PTO. (Compl. ¶¶ 90-93); see Ferring B.V. v. Barr Labs., Inc., 437 F.3d 1181 (Fed.Cir.2006) . On February 2, 2004, during the time that Defendants were prosecuting their infringement claim against Barr, Ferring filed a citizen petition with the FDA, asking the FDA to mandate that all ANDAs seeking approval to market a generic version of DDAVP include more stringent evidentiary proofs of bioequivalence, including comparative clinical end-point studies in children and separate evidence of bioequivalence for each dose level. (Compl. ¶¶ 102, 104.) On July 1, 2005, the FDA denied Ferring’s citizen petition, concluding that Ferring had not proffered evidence as to why the FDA should depart from its well-established methodologies to establish bioequivalence, and further determining that, in violation of 21 C.F.R. § 10.30 (requiring petitioner to certify that “petition includes all information and views on which the petition relies, and that it includes representative data and information known to the petitioner which are unfavorable to the petition”), Ferring had failed to cite an Aventis study that was inconsistent with the position advanced by Ferring in the citizen petition. (Id. ¶ 115.) On the same day, the FDA granted final approval of Barr’s ANDA for generic DDAVP tablets, and Barr launched its generic DDAVP product on July 15, 2005. (Id. ¶¶ 117-18.) As the first generic competitor to file a Paragraph IV certification, Barr had the exclusive right to market generic DDAVP for 180 days. (Id. ¶¶ 46, 118.) Teva entered the market after the FDA approved its ANDA on January 25, 2006. (Id. ¶ 119.) Meijer, Inc. and Meijer Distribution, Inc. filed a class action complaint in this case on February 18, 2005. (Doc. 1.) Subsequently, two classes of plaintiffs the Direct Purchaser Plaintiff class (the “Direct Purchaser Plaintiffs”) and the Indirect Purchaser Plaintiffs (collectively the “Plaintiff classes”) — filed consolidated class action complaints on April 5, 2006. (Docs. 28, 29.) Defendants filed a joint motion to dismiss the claims of both Plaintiff classes on May 1, 2006, (see Doc. 32), and Aventis separately moved to dismiss the complaints against it for failure to plead fraud with particularity, (see Doc. 35), (collectively, the “first motions to dismiss”). Judge Charles Brieant, to whom the case was then assigned, granted the first motions to dismiss, holding that (1) Plaintiffs did not have standing to bring antitrust claims, (2) Ferring’s citizen petition was protected by the First Amendment, and (3) Plaintiffs had failed to plead fraud with particularity against Aventis with respect to its knowledge of Ferring’s inequitable conduct before the PTO. (See Docs. 48, 50.) Both Plaintiff classes appealed to the Second Circuit. (Doc. 54.) The Second Circuit determined — only with respect to the Direct Purchaser Plaintiffs — that they (1) had standing to raise antitrust claims against Defendants; (2) plausibly alleged antitrust claims based on Walker Process fraud (discussed below), sham litigation, the fraudulent listing of the '398 patent in the Orange Book, and a baseless citizen petition; and (3) had pleaded the circumstances of Aventis’s alleged fraud with particularity. See In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 687-95 (2d Cir.2009). After the case was remanded back to this Court, Defendants and the Direct Purchaser Plaintiffs settled their claims, a settlement on which I held a fairness hearing and which I approved orally on November 2, 2011, (see Doc. 115), as memorialized in a November 28, 2011 Order, (see Doc. 113). On March 31, 2011, the Second Circuit granted the motion of the parties in the instant litigation to remand the case to this Court for a “determination of whether the amended judgment should be vacated as to the Indirect Purchaser Plaintiffs, in light of [the Second Circuit’s] decision in In re DDAVP Direct Purchaser Antitrust Litigation .... ” (Doc. 73 at 2.) On July 6, 2011, I vacated the amended judgment. (Doc. 79.) The Indirect Purchaser Plaintiffs filed the Complaint on July 26, 2011 seeking injunctive relief under Section 16 of the Clayton Act for Defendants’ alleged violations of Section 2 of the Sherman Act; compensatory and multiple damages under the antitrust and/or consumer protection statutes of the Indirect Purchaser Plaintiffs’ states; and restitution, disgorgement, and constructive trust for unjust enrichment under the laws of all fifty states and the District of Columbia. (See Compl. ¶¶ 133-49.) Defendants now jointly move to dismiss the Complaint for failure to state a claim. (Doc. 103.) II. LEGAL STANDARDS A. Motion to Dismiss “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. In considering whether a complaint states a claim upon which relief can be granted, the court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then determines whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937. Deciding whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “[Wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘shown’ — ‘that the pleader is entitled to relief.’ ” Id. (alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2)). B. Consideration of Documents Outside the Pleadings When deciding a motion to dismiss, the Court is entitled to consider the following: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents integral to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011) (internal quotation marks omitted); accord Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002). “Rule 201 of the Federal Rules of Evidence permits judicial notice of a fact that is ‘either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably ... questioned.’ ” United States v. Bryant, 402 Fed.Appx. 543, 545 (2d Cir.2010) (summary order) (quoting Fed.R.Evid. 201). Further, it is well established that courts may take judicial notice of publicly available documents on a motion to dismiss. See Byrd v. City of N.Y., — Fed.Appx. —, —, No. 04-CV-1396, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005) (summary order) (“[Mjaterial that is a matter of public record may be considered in a motion to dismiss.”); Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004) (courts can “look to public records, including complaints filed in ... court, in deciding a motion to dismiss”). But, “[i]n the motion to dismiss context, ... a court should generally take judicial notice ‘to determine what statements [the documents] contain[ ] ... not for the truth of the matters asserted.’ ” Schubert v. City of Rye, 775 F.Supp.2d 689, 698 (S.D.N.Y.2011) (alterations in original) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991)); see Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir.2006) (“A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”) (internal quotation marks omitted). C. Leave to Amend Leave to amend a complaint should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). It is within the sound discretion of the district court to grant or deny leave to amend. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). “Leave to amend, though liberally granted, may properly be denied for: ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.’ ” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), Where the “problem with [a complaint] is substantive [and] better pleading will not cure it,” leave to amend should be denied as futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see Malester v. Adamo, No. 09-CV-9347, 2010 WL 5065865, at *4 (S.D.N.Y. Dec. 8, 2010) (“A motion for leave to amend should be denied when allowing such an amendment would be futile in that it could not withstand a motion to dismiss for failure to state a claim.”). III. DISCUSSION A. Injunction under Section 16 of the Clayton Act for Defendants’ Violations of Section 2 of the Sherman Act 1. Claim Under the Clayton Act, “[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws.” 15 U.S.C. § 26. In other words, plaintiffs “must demonstrate a significant threat of injury from an impending violation ... or from a contemporary violation likely to continue or recur,” In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 13 (1st Cir.2008) (internal quotation marks omitted); see Chance v. Bd. of Exam’rs, 561 F.2d 1079, 1092 n. 25 (2d Cir.1977) (injunction “ ‘is justified only by the [wrongdoing] that induced it and only so long as it counteracts a continuing [violation]’ ”) (alterations in original) (quoting Milk Wagon Drivers Union of Chi., Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 298-99, 61 S.Ct. 552, 85 L.Ed. 836 (1941)). But “[i]n the context of injunctive relief, ... lingering monetary injury, without any ongoing threat of recurrent violations [to the plaintiffs], is not sufficient to confer standing to seek an injunction.” In re Nifedipine Antitrust Litig., 335 F.Supp.2d 6, 19 (D.D.C.2004); compare Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 131-32, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) (finding injunction could properly issue where allegations demonstrated that plaintiff patentee, which was associated with Canadian patent pool, sought to exclude defendant licensee from Canadian market, and there was nothing to indicate that conduct had terminated or would cease in foreseeable future), with In re G-Fees Antitrust Litig., 584 F.Supp.2d 26, 35 (D.D.C.2008) (dismissing claim for injunction where, plaintiffs failed to show that defendants threatened to injure plaintiffs’ business or property and “[a]n order enjoining defendants from specific future conduct would have no remedial effect whatsoever on the continuing future damages plaintiffs expect to experience due to the past injury”). Defendants argue that the Plaintiffs are not entitled to an injunction because the '398 patent has been held to be unenforceable, and thus there is no threat of future injury to Plaintiffs. (See Ds’ Mem. 4-6; Ds’ Reply Mem. 1-2.) Plaintiffs concede that there is no threat of future injury from enforcement of the '398 patent but argue that they seek an injunction “to assure that similar anticompetitive conduct does not occur in the future whether related to DDAVP or any other drug [for which] Plaintiffs may be forced to pay supracompetitive prices down the road.” (Ps’ Mem. 23 (internal quotation marks omitted).) Plaintiffs have not pleaded facts to show that they are entitled to an injunction. Plaintiffs allege vaguely that they seek injunctive relief “to remedy the anti-competitive market effects caused by the unlawful conduct of Defendants, and other relief so as to assure that similar anti-competitive conduct does not occur in the future,” (Compl. ¶ 138), but fail to allege how any putative Plaintiff faces a significant threat of injury from an impending violation relating to the '389 patent or supra-competitive prices of DDAVP. Further, with respect to “other drugs,” Plaintiffs have similarly failed to demonstrate which drugs might be involved, or what fraudulent conduct might be undertaken, or which Plaintiffs might buy the drugs at supra-competitive prices. In other words, Plaintiffs’ claim of future injury is wholly speculative. Putative class claims for an injunction fail where they do not demonstrate a threat of future injury to the plaintiffs in the case. See, e.g., New Motor Vehicles, 522 F.3d at 14 (“Plaintiffs have failed to establish the continuing presence of the requisite threatened injury. The ‘perfect storm’ that allegedly precipitated massive arbitrage opportunities for selling Canadian cars in the United States ceased long ago.”); In re Plavix Indirect Purchaser Antitrust Litig., No. 06-CV-226, 2011 WL 335034, at *4 (S.D.Ohio Jan. 31, 2011) (considering defendants’ past unlawful conduct, but determining that “[plaintiffs simply have not established that there remains any threatened conduct that will cause loss or damage [to them] as [is] necessary to seek injunctive relief’) (internal quotation marks omitted); G-Fees, 584 F.Supp.2d at 35 (plaintiffs failed to identify future conduct by defendants that threatened plaintiffs’ property or business; “Plaintiffs have conflated damages from a past injury that will be realized in the future ... with the threat of a future injury. Plaintiffs seek injunctive relief to prevent defendants from colluding with regard to G-Fees and requiring of lenders that G-Fees be kept secret and confidential. However, even if this alleged collusion were to be enjoined, plaintiffs would not feel relief because none claims to be a future mortgagee, and as current mortgagees, the G-Fees are already ‘baked in’ to their mortgages ....”) (internal citation and quotation marks omitted);. Because Plaintiffs have failed to “demonstrate a significant threat of injury from an impending violation ... or from a contemporary violation likely to continue or recur,” New Motor Vehicles, 522 F.3d at 13 (internal quotation marks omitted), Plaintiffs have not plausibly stated a claim for an injunction under Section 16 of the Clayton Act. 2. Request for Judicial Notice and Leave to Amend In connection with their argument that a threat of future injury exists, Plaintiffs request that I take judicial notice of court filings in five other lawsuits involving Fer-ring and Aventis. (See generally Ps’ Req. for Judicial Notice.) Plaintiffs argue that “Defendants have shown a certain proclivity for unlawful conduct when it comes to maintaining their drug monopolies,” (Ps’ Mem. 23; see id. at 23-26), and “ask the Court to simply take judicial notice that such allegations exist and that Plaintiffs intend to prove these allegations in this case in order to obtain an injunction against the Defendants to prove ‘future violations,’ ” (Ps’ Req. for Judicial Notice ¶ 4 (emphasis in original)). Plaintiffs further argue that because Defendants did not seek to dismiss the Clayton Act claims in their first motions to dismiss, Plaintiffs did not realize that they had to include in their Complaint the allegations set forth in their Request for Judicial Notice. (Id. ¶ 3.) Plaintiffs alternatively seek leave to amend the Complaint to add these allegations if the Court chooses not to take judicial notice. (Id.) Defendants oppose Plaintiffs’ Request for Judicial Notice as an improperly-captioned request for leave to amend the Complaint and as inappropriate on a motion to dismiss because the Court would have to assume the truth of the allegations in the various lawsuits in connection with the instant Motion to keep Plaintiffs’ claims alive. (See generally Ds’ Opp.) It appears that Plaintiffs are asking this Court to look to facts alleged within documents filed in other court cases “not to establish their existence, but rather to provide the reasoned basis for the court’s conclusion,” Global Network Commc’ns, 458 F.3d at 157 that is, Plaintiffs want the Court to consider not just that Defendants have been accused, but that Defendants in fact have an alleged proclivity for engaging in inequitable conduct before the PTO. Judicial notice of these facts is not permitted under Federal Rule of Evidence 201. See id. (on motion to dismiss, court may take judicial notice of the existence of public records, but not the truth of facts contained therein). Even if this Court were to take judicial notice of these filings, that Defendants may have been charged with engaging, or may have engaged, in inequitable conduct in other cases is no basis for letting Plaintiffs pursue their claim for an injunction in this case for the reasons already stated. Despite Defendants’ past unlawful conduct in this case (and possibly other eases), “Plaintiffs simply have not established that there remains any threatened conduct that will cause loss or damage [to them] as [is] necessary to seek injunctive relief.” Plavix, 2011 WL 335034, at *4 (internal quotation marks omitted). Further, I deny Plaintiffs’ request for leave to amend the Complaint to add allegations contained in their Request for Judicial Notice concerning Defendants’ conduct in these five cases. Although a court should grant leave to amend when justice so requires, see Fed.R.Civ.P. 15(a)(2), I find that it would be futile to do so under these facts, see Ruotolo, 514 F.3d at 191 (leave to amend may be denied if amendment is futile). Amending the Complaint to add allegations concerning Defendants’ conduct regarding drugs other than the one in the instant case, and which conduct (even if true) would not render any less speculative Plaintiffs’ claim of future injury from conduct relating to yet other drugs, would not cure the deficiencies in Plaintiffs’ pleading of their claim for an injunction under Section 16 of the Clayton Act. See MacEntee v. Int’l Bus. Mach., 783 F.Supp.2d 434, 446 (S.D.N.Y.2011) (re-pleading futile where problem with claim is substantive and additional allegations will not cure it); Lee v. Regal Cruises, Ltd., 916 F.Supp. 300, 304 (S.D.N.Y.1996) (denying leave to amend proper where “proposed amendment would be futile, as the factors upon which plaintiffs now would rely would be insufficient to salvage their case even if leave to amend were granted”). As discussed earlier in connection with Plaintiffs Request for Judicial Notice, that Defendants on other occasions may have unlawfully sought to obtain or protect patents (which the Court would have to assume to be true if such allegations were in the Complaint) does not plausibly demonstrate “a significant threat of injury ... from a contemporary violation likely to continue or recur.” Hazeltine Research, 395 U.S. at 130, 89 S.Ct. 1562. The “contemporary violation” here relates to DDAVP and has ceased without chance of recurrence. That the same Defendants might have engaged in unrelated unlawful conduct does not warrant injunctive relief for conduct that will not recur. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (“The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.”); United States v. Or. State Med. Soc’y, 343 U.S. 326, 333-34, 72 S.Ct. 690, 96 L.Ed. 978 (1952) (“The sole function of an action for injunction is to forestall future violations.... The record discloses no threat or probability of resumption of the [challenged actions]. We agree with the trial court that conduct discontinued in 1941 does not warrant the issuance of an injunction in 1949.”); Chance, 561 F.2d at 1092 n. 25 (injunction is justified only to counteract a continuing violation). Because Plaintiffs have failed to set forth facts plausibly suggesting a significant threat of injury, and have not suggested that they are in possession of facts that could cure those pleading deficiencies, Defendants’ Motion to Dismiss Plaintiffs’ claim for an injunction under Section 16 of the Clayton Act is granted, and Plaintiffs’ requests for judicial notice and, alternatively, leave to amend the Complaint are denied. B. State-Law Claims Next, Defendants make various arguments concerning why the Court should dismiss Plaintiffs’ state-law claims. Defendants claim that (1) Plaintiffs lack standing to assert state-law claims under the laws of jurisdictions other than Florida, Illinois, and Pennsylvania, the states in which the putative class representatives reside, (Ds’ Mem. 13-16; Ds’ Reply Mem. 6-7); (2) Plaintiffs’ state-law claims are preempted by federal patent or FDA law, (Ds’ Mem. 6-13; Ds’ Reply Mem. 2-6); and (3) even if the Court finds that Plaintiffs have standing and that their claims are not preempted, the state-law claims fail for various other reasons, (Ds’ Mem. 16-25; Ds’ Reply Mem. 8-10). I address each argument in turn. 1. Article III Standing of Named Plaintiffs The named plaintiffs in this action are residents of Florida, Pennsylvania, and Illinois, respectively. (See Compl. ¶¶ 11-14.) Defendants argue that the named plaintiffs lack Article III standing to assert claims under the laws of states' in which they do not reside or did not suffer injury, and that they cannot acquire standing through the back door of a class action lawsuit. (See Ds’ Mem. 13-16; Ds’ Reply Mem. 6-7.) Plaintiffs argue that the issue of whether the named plaintiffs can raise claims on behalf of other class members is a class certification issue, and that when class certification is the source of potential standing problems, a court should make the class certification determination before deciding the standing issue. (See Ps’ Mem. 26-29.) Generally, an Article III court must determine that it has jurisdiction over a plaintiff at the outset of a case. See Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 181, 197-98 (2d Cir.2005). But the Supreme Court has carved out an exception to that rule when class certification issues are “ ‘logically antecedent’ to Article III concerns.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 831, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (quoting Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 612, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Although the Second Circuit has not yet defined the contours of the “logically antecedent” exception, “ ‘there has been a growing consensus among district courts that class certification is ‘logically antecedent,’ where its outcome will affect the Article III standing determination, and the weight of authority holds that in general class certification should come first.’” Winfield v. Citibank, N.A., 842 F.Supp.2d 560, 574 (S.D.N.Y.2012) (quoting Blessing v. Sirius XM Radio Inc., 756 F.Supp.2d 445, 451 (S.D.N.Y.2010)); see In re Grand Theft Auto Video Game Consumer Litig. (No. II), No. 06-MD-1739, 2006 WL 3039993, at *2 (S.D.N.Y. Oct. 25, 2006) (acknowledging split of authority on issue, but holding that “the better interpretation is to treat class certification as logically antecedent to standing where class certification is the source of the potential standing problems”). I join the courts in that growing consensus and find that class certification is logically antecedent to the issue of standing in this case. Defendants do not dispute that the named plaintiffs have standing to bring claims against Defendants under the state antitrust and consumer protection laws of Florida, Pennsylvania, and Illinois, the states in which Plaintiffs reside and purchased DDAVP. Thus, “this is not a case where the Named Plaintiffs are attempting to piggy-back on the injuries of the unnamed class members. Rather, each of the Named Plaintiffs asserts a[n] ... injury resulting from Defendants’ allegedly wrongful” conduct, Grand Theft Auto, 2006 WL 3039993, at *3 (citation and internal quotation marks omitted), and a favorable court decision will redress the named plaintiffs’ injuries, see Friends of the Earth, Inc. v. Laidlaw Envtl Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (plaintiff must demonstrate (1) injury in fact, (2) fairly traceable to defendant’s alleged wrongful conduct, (3) that may be redressed by a favorable decision). Therefore, the issue “is not whether the Named Plaintiffs have standing to sue Defendants — they most certainly do — but whether their injuries are sufficiently similar to those of the purported Class to justify the prosecution of a nationwide class action,” which is properly determined at the class certification stage, when this Court may consider commonality and typicality issues with respect to the named plaintiffs and other putative class members. In re Grand Theft Auto, 2006 WL 3039993, at *3; see In re Digital Music Antitrust Litig., 812 F.Supp.2d 390, 406 (S.D.N.Y.2011) (finding that named plaintiffs’ claims related to conduct “alleged to be the same no matter where any plaintiff resides,” and deferring determination on standing until after class certification); Blessing, 756 F.Supp.2d at 452 (same); In re Buspirone Patent Litig., 185 F.Supp.2d 363, 377 (S.D.N.Y.2002) (same). Defendants’ Motion to Dismiss Plaintiffs’ state-law claims for lack of standing is therefore denied. 2. Preemption of Plaintiffs’ State-Law Antiti'ust and/or Consumer Protection Claims In the Direct Purchaser Plaintiffs’ appeal in this case, the Second Circuit held that that class of plaintiffs had sufficiently alleged federal antitrust claims of the kind articulated in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), to survive the first motions to dismiss. See DDAVP Direct Purchaser Antitrust Litig., 585 F.3d at 693-94. Further, they had plausibly alleged that that the citizen petition filed by Ferring caused delay in generic competition, demonstrated by the fact that the FDA approved the generic DDAVP drug on the same day that it rejected Ferring’s citizen petition. Id. at 694. An issue that was not determined in the first motions to dismiss is whether the Indirect Purchaser Plaintiffs’ state-law Walker Process type-claims are preempted. Defendants argue that Plaintiffs’ state antitrust and/or consumer protection law claims are preempted by federal law because these claims are either based on misconduct before the PTO, which is preempted by federal patent law, or concern the “baseless citizen petition,” which is preempted by federal FDA law. (See Ds’ Mem. 6-13; Ds’ Reply Mem. 2-6.) Plaintiffs argue that their state-law Walker Process-type antitrust claims should not be preempted because such state-law claims do not stand as obstacles to the federal laws’ purposes and objectives, (See Ps’ Mem. 5-17.) Further, Plaintiffs argue that a claim predicated on a sham citizen petition “is an antitrust claim just as a Walker Process claim is an antitrust claim,” (id. at 18), and thus should not be preempted. (See id. at 17-22.) a. Conduct before the PTO It appears that neither the Supreme Court nor an appellate court has analyzed the question of whether a plaintiff may bring state-law Walker Process-type antitrust claims predicated on fraudulent conduct before the PTO. In Walker Process, the Supreme Court held that as long as a plaintiff could plead the intent and conduct elements of a Sherman Act violation, see 15 U.S.C. § 2, as well as that the defendant’s conduct had the ability to reduce or destroy competition, that plaintiff could pursue a federal antitrust claim predicated on a defendant’s maintenance and enforcement of a patent procured by knowing and willful fraud before the PTO. 382 U.S. at 177-78, 86 S.Ct. 347; see id. at 177, 86 S.Ct. 347 (“to strip [a patentee] of its exemption from the antitrust laws,” an antitrust plaintiff is required to prove that patentee “obtained the patent by knowingly and willfully misrepresenting facts to the [PTO]”). Justice Harlan’s concurrence emphasized that the Court’s holding did not extend to any invalid patent, but only to one “procured by deliberate fraud.” Id. at 180, 86 S.Ct. 347 (Harlan, J., concurring). In Abbott Laboratories v. Brennan, 952 F.2d 1346 (Fed.Cir.1991), the Federal Circuit narrowly held that a state tort action for abuse of process could not be used to “collaterally] review” inequitable conduct before the PTO because it “would be an inappropriate collateral intrusion on the regulatory procedures of the PTO ... and is contrary to Congress’ preemptive regulation in the area of patent law,” unless the plaintiff can show “that the entire federal agency action was a sham.” Id. at 1356-57; see Semiconductor Energy Lab. Co. v. Samsung Elecs. Co., 204 F.3d 1368, 1380-83 (Fed.Cir.2000) (finding New Jersey RICO counterclaim preempted because if acts of “inequitable conduct, without more, could be considered predicate acts under ... state RICO law, then every accused infringer asserting an inequitable conduct defense would also bring such a RICO counterclaim”); see also Sign-A-Way, Inc. v. Mechtronics Corp., No. 98-CV-1491, 2000 WL 353151, at *4-5 (Fed.Cir. Apr. 5, 2000) (unpublished disposition) (citing Abbott Laboratories and Semiconductor Energy in holding that state-law claim for breach of duty of candor and good faith based on inequitable conduct before PTO is preempted by federal patent law). Building off Abbott Laboratories, the Federal Circuit held in Dow Chemical Co. v. Exxon Corp., 139 F.3d 1470 (Fed.Cir.1998), that a plaintiff may plead both state-law and patent-law claims based in part on the same conduct when the claims “address entirely different wrongs and also provide different forms of relief,” id. at 1478, and the state law cause of action “is not an impermissible attempt to offer patent-like protection to subject matter addressed by federal law,” id. at 1473. In Abbott Laboratories, the conduct attacked by the abuse-of-process claim occurred entirely before the PTO, see 952 F.2d at 1355, but in Dow conduct before the PTO was only part of the basis for the tortious interference claim, see 139 F.3d at 1476-77. The Dow court found that if a defendant engaged in “bad faith enforcement of a reputedly unenforceable patent” by threatening to sue knowing that the patent was invalid, id. at 1476, or even “[if] a holder of a valid and enforceable patent ... knowingly [brought] baseless infringement actions against a competitor’s customers,” id., at 1477, a state-law claim for tortious interference would lie because it would address a different wrong than a simple claim for inequitable conduct before the PTO. See id. at 1476-78, The difference was that the former claim would be premised on “bad faith misconduct in the marketplace,” as opposed to “bad faith misconduct in the PTO.” Id. at 1477. “[T]hat the source of proof of bad faith, just one element of the tort, was purported inequitable conduct before the PTO” did not render the state claim a preempted issue of patent law. Id. at 1478. In Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059 (Fed.Cir.1998), the Federal Circuit distinguished Walker Process claims from claims of inequitable conduct before the PTO by stating that “inequitable conduct is a broader, more inclusive concept than the common law fraud needed to support a Walker Process counterclaim,” id. at 1069, and “a more serious finding of fraud”- — “a knowing, willful and intentional act, misrepresentation or omission before the PTO” — “potentially exposes a patentee to antitrust liability,” id. at 1070 (alteration and internal quotation marks omitted). Thus, if a court found that a “patent was acquired by means of either a fraudulent misrepresentation or a fraudulent omission and that the party asserting the patent was aware of the fraud when bringing suit, such conduct can expose a patentee to liability under the [federal] antitrust laws.” Id. In Hunter Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318 (Fed.Cir.1998), overruled in part on other grounds by Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1360-61 (Fed.Cir.1999) (en banc in part), the Federal Circuit created a conduct-based test to determine what claims could and could not be raised, and found Dow to be “in harmony” with such an approach. Id. at 1336-37. The court held that federal patent law immunizes two types of conduct from state tort liability: (1) conduct before the PTO, unless the plaintiff can show that the patentholder’s conduct amounted to fraud or rendered the patent application process a sham; and (2) conduct of publicizing a patent in the marketplace, unless the plaintiff can show that the patentholder acted in bad faith. Id. at 1335-37; see Zenith Elecs. Corp. v. Exzec, Inc., 182 F.3d 1340, 1355 (Fed.Cir.1999) (“Guided by our Dow Chemical and Hunter Douglas decisions, and consistent with the analysis previously set forth with regard to the application of federal unfair trade practice law, we hold that bad faith is a prerequisite to [a defendant’s] state-law tortious interference claim; without it, the claim is preempted by patent law.”). District courts have since attempted to apply this jurisprudence. For example, in Ciprofloxacin, 363 F.Supp.2d 514, the court looked at, among other things, an indirect purchaser class’s state-law claim for Walker Process-type fraud relating to inequitable conduct before the PTO, as well as a claim relating to alleged sham litigation. The Ciprofloxacin court determined that defendants’ omission or misrepresentation before the PTO had not risen to the level of “but for” materiality— in other words, that there was no showing of a representation or omission that caused the PTO to grant an invalid patent. See id. at 546 n. 28. Because “a patent must be invalid before it can be a candidate for Walker Process fraud,” the court determined that the state-law claims were preempted. Id. Further, the plaintiffs had failed to allege conduct other than the conduct before the PTO, such as tortious conduct in the marketplace, to save the claim from being preempted. Id. at 543-45 (citing Hunter Douglas, 153 F.3d at 1334; Dow, 139 F.3d at 1477) (finding that indirect purchasers’ claim was akin to abuse-of-process counterclaim brought in Abbott Laboratories). Two subsequent cases from the District of New Jersey have followed the Eastern District of New York’s reasoning in Ciprofloxacin. In Daiichi Sankyo, Inc. v. Apotex, Inc., No. 030937, 2009 WL 1437815, at *9 (D.N.J. May 19, 2009), the District of New Jersey held — in another case where there was no finding of actual fraud before the PTO — that “[s]tate law tort claims [such as tortious interference and unjust enrichment based on defendants’ listing a patent in the Orange Book and bringing sham patent infringement litigation] are preempted by federal law if they are based on nothing more than misconduct before the PTO,” Id. Likewise, in In re K Dur Antitrust Litigation, No. 01-CV-1652, 2007 WL 5297755, at *24-25 (D.N.J. Mar. 1, 2007) — -a case where plaintiffs alleged that defendants had engaged in fraudulent activity before the PTO, but the court did not reach the issue of whether defendants engaged in actual fraud (as opposed to inequitable conduct) before the PTO because it dismissed the indirect purchasers’ claims for lack of standing, see id. at *17-19 — the Special Master determined that plaintiffs’ Walker Process and state-law “sham litigation” claims were preempted by federal patent law. Id. at *23-25. In so holding, the Special Master stated that because the claims were premised solely on bad faith misconduct before the PTO, they “occup[ied] a field identical in scope to issues already reserved to and adequately addressed by federal patent law,” and “[e]ven if reasonable people could disagree about the extent to which ... Plaintiffs’ state law antitrust claims rely upon conduct before the PTO, evidence of marketplace conduct ... [wa]s sorely lacking.” Id. at *24 (internal quotation marks omitted). Plaintiffs argue that cases like Ciprofloxacin and K-Dur were wrongly decided, (Ps’ Mem. 14-17), and their arguments have some force. I need not go so far as to agree, however, in order to uphold their claims. Although the facts of this case differ in some ways from each of the cases discussed above, I find, consistent with Federal Circuit precedent, that Plaintiffs’ state-law Walker Process-type antitrust and/or consumer protection law claims are not preempted by federal patent law under these facts. Plaintiffs have plausibly pleaded both fraud on the PTO and bad-faith enforcement of the patent. As the Second Circuit in this case found, Plaintiffs have adequately pleaded the “intent to deceive” and “materiality” elements of a Walker Process fraud claim, See DDAVP Direct Purchaser Antitrust Litig., 585 F.3d at 692-94; see also Ferring, 437 F.3d at 1188-90 (“[T]he declarations themselves were ‘highly material.’ ”; “[T]he second set of declarations, which was plagued with even more undisclosed affiliations than the first set, was absolutely critical in overcoming the Board’s obviousness rejection.”; “Indeed, it shows that the background, at least of the declarants Robinson and Czernichow, was not only material but was highly material. The examiners specifically requested ‘non-inventor’ affidavits.”); Ferring, 2005 WL 437981, at *9 (“The reluctance of the PTO to issue the '398 patent was evident. Each affidavit submitted in support of its issuance was thus highly material to the prosecution history. That three of the challenged declarations were submitted after several iterations of rejected attempts to obtain the patent’s issuance speaks loudly as to motive and intent.”). Because they have also plausibly pleaded that Ferring’s conduct before the PTO was a but-for reason that the '398 patent issued, see DDAVP Direct Purchaser Antitrust Litig., 585 F.3d at 692-94, Plaintiffs have plausibly pleaded, consistent with Hunter Douglas, that Ferring’s “conduct amounted to fraud or rendered the patent application process a sham,” Hunter Douglas, 153 F.3d at 1336, which can expose Defendants to antitrust liability even if it might also violate federal patent law. Likewise, because Plaintiffs plausibly allege bad-faith enforcement, Dow, 139 F.3d at 1476, not just bad behavior before the PTO, the patent laws do not preempt their state-law claims, see id. at 1476-77; Nobelpharma, 141 F.3d at 1070. Defendants argue that Plaintiffs have not alleged any conduct apart from misconduct before the PTO, such as wrongful conduct in the marketplace, (Ds’ Mem. 10), but that simply is not the case. Plaintiffs allege not only that Defendants misled the PTO, but that they engaged in bad-faith enforcement through an invalid Orange Book listing, sham patent infringement litigation, and a sham citizen petition. Plaintiffs thus seek to remedy wrongs that go beyond inequitable conduct before the PTO. See Dow, 139 F.3d at 1476-77; see also id. at 1478 (“Far from being a duplication of remedies, the state tort and the federal defense address entirely different wrongs and also provide different forms of relief.”). Like the tortious interference claim at issue in Dow, and unlike the abuse-of-process claim at issue in Abbott Laboratories, the antitrust/unfair competition and consumer fraud claims here “require[] entirely different elements” than “those required for inequitable conduct before the PTO,” Dow, 139 F.3d at 1477, and the tort occurred not at the PTO but later in the marketplace, id., even though the conduct before the PTO might be used to prove it, id. at 1478. In any event, Defendants have cited no case law for the proposition that wrongful conduct beyond the PTO and in the marketplace is required where fraud on the PTO is alleged. Under Federal Circuit precedent, it seems that either fraud on the PTO or bad faith conduct in the marketplace is sufficient to strip a patent holder of its antitrust immunity and render an antitrust claim not preempted by patent law. See Hunter Douglas, 153 F.3d at 1336 (no preemption if plaintiff alleges defendant committed fraud before PTO or publicized patent in bad faith). Finally, allowing state-law Walker Process-type antitrust claims will not impair the purposes or objectives of federal patent law. See Walker Process, 382 U.S. at 179-80, 86 S.Ct. 347 (Harlan, J., concurring); Exzec, 182 F.3d at 1354; Dow, 139 F.3d at 1475. The Court sees no reason why the reasoning of these cases would not apply equally to state-law-based Walker Process-type claims as to federal-law-based claims. Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ antitrust and consumer protection law claims on preemption grounds is denied. The Complaint adequately alleges conduct that, if proven, would strip Defendants of their immunity as patentees from antitrust claims and would neither duplicate the wrongs addressed or the remedies available under the patent laws, nor impede or impair those laws. b. Citizen Petition Plaintiffs are not preempted from basing their state-law antitrust and/or consumer protection claims in part on Defendants’ allegedly baseless citizen petition for similar reasons. In Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001), the Supreme Court analyzed whether plaintiffs’ state-law fraud-on-the-FDA claims for defendants’ fraudulent representations to the FDA in the course of obtaining approval to market bone screws — representations without which the FDA may not have approved the screws — were preempted by the Federal Food, Drag and Cosmetic Act, 21 U.S.C. §§ 301-399d, as amended (the “FDCA”). See id. at 343, 121 S.Ct. 1012. The Court found that “[p]olieing fraud against federal agencies is hardly a field which the States have traditionally occupied” and that “the relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law.” Id. at 347, 121 S.Ct. 1012 (internal quotation marks omitted). Because the Court was concerned with FDA applicants having to “comply[ ] with the FDA’s detailed regulatory regime in the shadow of 50 States’ tort regimes,” id. at 350, 121 S.Ct. 1012, and found that the FDA was “empowered to investigate suspected fraud, ... respond to fraud by seeking injunctive relief and civil penalties, ... [and] thus has at its disposal a variety of enforcement options that allow it to make a measured response to suspected fraud on the Administration,” id. at 349, 121 S.Ct. 1012 (internal citations omitted), the Court held that state-law fraud-on-the-FDA claims “would exert an extraneous pull on the [FDCA]” and are impliedly preempted, id. at 353, 121 S.Ct. 1012. Cases interpreting Buckman have refined the import of its holding based on different sets of facts. For example, in Desiano v. Warner-Lambert & Co., 467 F.3d 85 (2d Cir.2006), aff'd by an equally divided court sub nom. Warner-Lambert & Co. v. Kent, 552 U.S. 440, 128 S.Ct. 1168, 170 L.Ed.2d 51 (2008) (per curiam), the Second Circuit analyzed whether a Michigan state statute that granted immunity to drug makers for compliance with FDA requirements, but which had an exception if a drug maker committed fraud on the FDA, should cause state-law product liability claims to be preempted. Id. at 87-88. The court held that the state-law claims were not preempted for three reasons. First, the court applied the presumption against preemption because the Michigan legislature enacted this particular statute “to rein in state-based tort liability,” which fell “squarely within [the legislature’s] prerogative to regulate matters of health and safety,” a prerogative generally left to the States. Id. at 94 (alteration and internal quotation marks omitted). Second, the court distinguished Buckman fraud-on-the-FDA claims, for which “proof of fraud against the FDA is alone sufficient to impose liability,” from “freestanding allegations of wrongdoing apart from the defendant’s purported failure to comply with FDA disclosure requirements.” Id. at 95 (emphasis in original) (internal quotation marks omitted). And third, the court noted that proof of fraud before the FDA was not an element of a products liability claim; rather, the fraud would only be important if the defendant company sought to assert an affirmative defense that the FDA had approved the drug as in compliance with the FDCA. Id. at 96. More recently, a district court within this Circuit looked at cases interpreting Buckman and stated that a state law claim only endures if it manages to incorporate, but not depend entirely upon, an FDCA violation and is premised on conduct that would give rise to liability under traditional common law principles. On the other hand, if “defendant’s conduct is not of this type,” ie., would not expose it to liability but for the FDCA, then the plaintiff is effectively suing for a violation of the FDCA (no matter how the plaintiff labels the claim), and the plaintiffs claim is thus impliedly preempted under Buckman. In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig., 701 F.Supp.2d 356, 369 (E.D.N.Y.2010) (internal quotation marks omitted). In Bayer, the issue was whether defendant’s false or deceptive advertising in the marketplace, including false claims to consumers that the FDA had approved defendant’s products, could be attacked using state-law false advertising and consumer protection law claims. See id. at 362, 365. The court found that the representations concerning FDA approval had been directed at consumers, and thus plaintiffs’ claim was a “traditional [state law] claim of consumer misrepresentation, not an attempt to enforce the FDCA’s labeling requirements.” Id. at 375. “In other words, plaintiffs [had] threaded the needle and alleged conduct that violates the FDCA but sounds in traditional principles of state law and would give rise to recovery even had the FDCA never been enacted.” Id. Here, neither party has cited a case that analyzes whether state-law antitrust and/or consumer protection claims based on an allegedly baseless citizen petition are preempted by the FDCA, and the Court is aware of none. In light of the case law that does exist, I find that the claims here are more akin to the claims in Desiano or Bayer than in Buckman. Plaintiffs are not merely suing on a claim where “proof of fraud against the FDA is alone sufficient to impose liability,” Desiano, 467 F.3d at 95 (emphasis in original), like the fraud-on-the-FDA claim raised in Buckman. Rather, they bring antitrust and consumer protection claims, which claims make “freestanding allegations of wrongdoing apart from the defendant’s purported failure to comply with, FDA disclosure requirements,” id. at 95 — i.e., -anticompetitive conduct designed to maintain a fraudulent monopoly through a knowingly invalid patent — sufficient for these claims not to be preempted. Further, proof of fraud on the FDA is not an element of an antitrust claim. It may be evidence of such a claim, and it may serve to strip Defendants of the antitrust immunity to which they would otherwise be entitled as patentees, but it is not an affirmative element that Plaintiffs are required to prove to make out an antitrust claim. Thus, Plaintiffs have “thread[ed] the needle ... [by plausibly pleading] that [Defendants] ha[ve] violated the FDCA, but [Plaintiffs’] claims are not entirely premised on that violation and that [Defendants’] wrongdoing would entitle [Plaintiffs] to recovery under traditional [antitrust and/or consumer protection law] state law principles.” Bayer, 701 F.Supp.2d at 370. 3. Other Grounds for Dismissing Plaintiffs’ State-Law Claims Defendants argue that if Plaintiffs’ state-law claims are not dismissed on standing or preemption grounds, they should be dismissed for other reasons. I address each of Defendants’ arguments below. a. Arizona. Colorado, Idaho, Michigan, Nevada, New Mexico, New York, South Dakota and Tennessee Consumer Protection Laws Defendants argue that the consumer protection laws of Arizona, Colorado, Idaho, Michigan, Nevada, New Mexico, New York, South Dakota and Tennessee do not apply to antitrust violations or similar anti-competitive conduct, but rather “only apply to conduct that constitutes a fraud upon consumers, ” and that because there are no allegations that Defendants engaged in communications with any of the Indirect Purchaser Plaintiffs, the claims fail. (Ds’ Mem. 16-17 (emphasis in original); see Ds’ Reply Mem. 8 (“It is not sufficient to allege a fraud upon government entities (e.g., the PTO, FDA, or federal courts) that may have indirectly caused consumers to pay higher prices for a product.”)) Plaintiffs argue that many courts have held that a direct representation to a consumer is unnecessary, and that they have alleged deception before the PTO and the FDA by Defendants that led consumers to pay too much for DDAVP. (See Ps’ Mem. 29-31.) As will become clear in the analysis below, I find at this stage that Plaintiffs have plausibly pleaded misrepresentations that, although they may not have been made directly to consumers, had the kind of effect on end payors that these statutes seek to remedy. See, e.g., Fionase, 692 F.Supp.2d at 536 n. 8 (“The filing of a citizen petition to the FDA requires that the petition include a certification which states, inter alia, that the petition ‘includes representative data and information known to the petitioner which are unfavorable to the petition,’ 21 C.F.R. § 10.30 (2009). If the Plaintiffs had alleged facts to show that the petitions [defendant] filed made statements that [defendant] knew were contradicted by data and information, and that [defendant] knowingly excluded such information, this might be sufficient to allege a misrepresentation” on indirect purchaser plaintiffs); Teva Pharm., 432 F.Supp.2d at 433-34 (consumer deception plausibly alleged because patents were obtained by fraud, and defendants “failed to demonstrate that such allegations [we]re insufficient” to state claim under any state statute). 1. Arizona To state a claim of consumer fraud under the Arizona Consumer Fraud Act (the “ACFA”), Ariz.Rev.Stat. Ann. §§ 44-1521 to -1534, “a plaintiff must show [that the defendant made] ‘a false promise or misrepresentation ... in connection with the sale or advertisement of merchandise and consequent and proximate injury resulting from the promise.’ ” Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F.Supp.2d 380, 403 (E.D.Pa.2010) (quoting Kuehn v. Stanley, 208 Ariz. 124, 91 P.3d 346, 351 (Ariz.Ct.App.2004)). “An injury occurs when a consumer relies, even unreasonably, on false or misrepresented information.... [R]eliance is a required element under Arizona’s consumer fraud statute .... ” Kuehn, 91 P.3d at 351. An allegation that a defendant engaged in deception, even if to a regulatory agency rather than consumers directly, may be sufficient to state a claim under the ACFA. See Flonase, 692 F.Supp.2d at 536 & n. 8 (seemingly accepting indirect plaintiffs’ argument that if a citizen petition submitted to FDA included statements that defendant “knew were contradicted by data and information, and ... knowingly excluded such information,” this might be sufficient to allege misrepresentation to sustain ACFA claim); see also Sheet Metal, 737 F.Supp.2d at 403-04 (determining that defendant’s material misstatements — including Walker Process fraud in connection with patent — may constitute misrepresentation sufficient to state claim under ACFA, but finding on facts of case that defendants had made objectively baseless, although “not necessarily fraudulent" representations, and thus granting mot