In re Wellbutrin XL Antitrust Litigation (133 F. Supp. 3d 734, 2015)

MEMORANDUM

McLaughlin, District Judge

This lawsuit is one of many in the federal courts involving the application of the Supreme Court’s decision in FTC v. Actavis, Inc., — U.S. -, 133 S.Ct. 2223, 186 L.Ed.2d 343 (2013), to settlements between branded and generic pharmaceutical manufacturers. In this case, direct and indirect purchasers of Wellbutrin XL have brought claims under the Sherman Act and state antitrust and consumer protection statutes, alleging that the defendants SmithKline Beecham Corporation d/b/a GlaxoSmithK-line and GlaxoSmithKline pic (collectively, “GSK”) delayed the entry of generic versions of Wellbutrin XL to the American market by entering into illegal agreements with generic drug companies to settle patent infringement lawsuits.

In Actavis, the Supreme Court held that settlements in which the holder of a pharmaceutical patent makes a payment to an alleged patent infringer to resolve a challenge to the patent — so-called “reverse payment settlements” — “can sometimes violate the antitrust laws.” Actavis, 133 S.Ct. at 2227. The Supreme Court explained that such settlements are neither presumptively unlawful nor presumptively lawful, and instructed district courts to evaluate the settlements under the longstanding rule of reason framework. Id. at 2237-38. Reverse payment settlements, the Court cautioned, could present the following anticompetitive harm: eliminating “the risk of patent invalidation or a finding of non-infringement” that the underlying patent lawsuit presented. Id. at 2236-37.

The settlements challenged in this ease (collectively the “Wellbutrin Settlement”) resolved patent disputes among GSK, GSK’s business partner Biovail, and multiple generic manufacturers who had filed Hatch-Waxman Act Paragraph IV Certifications challenging the Wellbutrin XL patent. The Wellbutrin Settlement, reached in February 2007, allowed the underlying Hatch-Waxman litigation to continue, and provided for entry of generic Wellbutrin XL immediately upon a finding of non-infringement or patent invalidity, and in any case no later than May 30, 2008, 10 years before the expiration of the patent. The settlement also granted the generic manufacturers sublicenses to patents (which expired in 2022) at issue in a separate patent lawsuit, and provided a guaranteed generic supply of Wellbutrin XL; it also provided for enhanced review of the settlement by the Federal Trade Commission. In the settlement, GSK agreed not to launch an authorized generic Wellbutrin XL product during the generic manufacturer’s period of Hatch-Waxman guaranteed exclusivity.

GSK has filed three motions for summary judgment: one motion for summary judgment as to all claims made by the plaintiffs; one motion for summary judgment addressing only the issue of causation; and one motion for summary judgment as to the indirect plaintiffs’ Cartwright Act cause of action. In connection with its motions for summary judgment, GSK has filed Daubert motions to exclude the plaintiffs’ experts. In addition to their oppositions to GSK’s motions for summary judgment, the plaintiffs have filed Daubert motions to exclude GSK’s expert Dr. Martin Adel-man. The court will grant summary judgment to GSK.

The series of settlement agreements challenged here contains a provision not present in any other post-Actavis case of which the Court is aware: the generic manufacturer did not abandon its challenge to the patent held by GSK’s business partner, Biovail. The settlement provided that if the generic manufacturer prevailed on its appeal in the Federal Circuit, it could immediately enter the market with generic Wellbutrin XL. GSK, therefore, argues that the Wellbutrin Settlement does not come within the purview of Actavis and should be exempt from antitrust scrutiny. The Court is reluctant to apply such a mechanical test, because it could offer blanket immunity to any reverse payment settlement in which the underlying patent litigation continues; this could create an easily exploited loophole. The Supreme Court in Actavis — and antitrust law historically — rejects such a formalistic approach to evaluating an agreement.

The fact that the Wellbutrin Settlement allowed the underlying patent litigation to continue, however, is a factor to be considered .in the rule of reason analysis mandated by Actavis. The plaintiffs cannot establish the anticompetitive harm contemplated by Actavis: that the defendant in the patent infringement lawsuit would abandon its patent claim, eliminating the risk of patent invalidation or a finding of non-infringement. The plaintiffs’ necessary alternate theory of anticompeti-tive harm is that the Wellbutrin Settlement delayed the launch of a generic product. But the plaintiffs have not established a proper foundation for such a claim by showing either that an alternate settlement would have been reached absent a no authorized generic agreement, or that continued litigation would have resulted in earlier generic entry through an at risk launch.

As to a settlement without a no authorized generic provision, there is no evidence that such a settlement was ever contemplated, much less that it would have resulted in an earlier entry date. The summary judgment record shows that the generic manufacturers regarded the no authorized generic agreement as an essential term. As to continued litigation and the at risk launch, the plaintiffs have not made an adequate showing that a separate patent would not have been an independent bar to market entry.

Even if the plaintiffs had shown that the Wellbutrin Settlement had anticompetitive effects, the Court finds that a reasonable jury could not find that any anticompeti-tive effects outweigh the procompetitive benefits of the settlement. The Wellbutrin Settlement provided sublicenses to a generic patent that was the subject of separate infringement actions brought by a different pharmaceutical company, and obligated Biovail to supply the generic manufacturer with generic Wellbutrin XL, two results not achievable through successful litigation alone.

Finally, the plaintiffs cannot prove that they suffered antitrust injury or that the Wellbutrin Settlement was the proximate cause of any injury suffered because they have not presented evidence that the Well-butrin Settlement, as opposed to an independent patent, prevented market entry of generic Wellbutrin XL.

I. Summary Judgment Record

The settlement agreement at issue in these cases — the Wellbutrin Settlement— involves the interplay between complex statutory and regulatory schemes, multiple patent infringement lawsuits, and extensive negotiations among numerous parties. The Court has addressed each factual issue individually below.

A. The Drug Approval Process and Regulatory Framework

The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-92 (“FDCA”), provides that the Food and Drug Administration (“FDA”) must approve all drugs before they may be introduced into interstate commerce. Companies seeking to market drugs must file applications for approval under one of two procedures.

Under the first procedure, a new drug (or “brand name” drug) applicant files a New Drug Application (“NDA”), which must include examples of the proposed labeling for the drug and clinical data demonstrating the drug’s safety and efficacy. The NDA must also include the patent number and expiration date of any patent that claims either the drug or a method of using the drug if “a claim of patent infringement could reasonably be asserted.” Submission of an NDA involved “a long, comprehensive, and costly testing process.” Actavis, 133 S.Ct. at 2228. The FDA publishes the names of approved drugs and their associated patents in what is commonly known as the “Orange Book.” 21 U.S.C. § 355(a),(b).

Congress established the second new drug approval procedure in 1984 with the Drug Price Competition and Patent Term Restoration Act (the “Hatch-Waxman Act”). Pub.L. No. 98-417, 98 Stat. 1585 (1984). The Hatch-Waxman Act allows companies seeking to manufacture and market a generic version of a previously approved pioneer drug (known as the “listed drug”) to avoid filing an NDA. Instead, generic manufacturers are permitted to file an Abbreviated New Drug Application (“ANDA”). The ANDA permits the applicant to rely on the safety and efficacy data for the listed drug if the applicant can show that the generic product is “bioequi-valent” to the listed drug. 21 U.S.C. §§ 355(j)(2)(A)(iv), Cj)(8)(B).

As part of the ANDA process, a generic manufacturer must make one of four certifications regarding each patent associated in the Orange Book with the listed drug: (I) that the patent information has not been filed; (II) that the patent has expired; (III) that the patent is set to expire; or (IV) that the patent is invalid or will not be infringed by the generic drug. This fourth certification is known as a “Paragraph IV Certification.” 21 U.S.C, § 355(j)(2)(A)(vii)(IV). A generic manufacturer that files a Paragraph IV Certification must give notice to the patent holder and provide a “detailed statement of the factual and legal basis of the opinion of the applicant that the patent is invalid or will not be infringed.” 21 U.S.C. § 355(j)(2)(B).

The Hatch-Waxman Act provides that if the patent holder files an infringement suit within 45 days after receiving notice of the Paragraph IV Certification, the patent holder benefits from a statutory stay on FDA approval of the ANDA for a period of 30 months or until the resolution of the infringement suit, whichever is shorter. 21 U.S.C. § 355(j)(5)(B)(iii). If the generic applicant begins to market its generic product prior to a determination of the patent’s validity or scope, the launch is considered to be “at risk” and the manufacturer can be forced to pay damages. See 35 U.S.C. 271(e)(4)(C).

The first generic company to file an ANDA containing a Paragraph TV Certification (the “first filer”) also receives an “exclusivity” period of 180 days during which the FDA may not approve any later-filed paragraph IV ANDA based on the same NDA. Id. § 355(j)(5)(B)(iv). The 180-day period begins to run from either the date that the first filer begins to market its drug or the date of a final judgment that the patent is invalid or not infringed, whichever is earlier. Id. §§ 355(j)(5)(B)(iv), 355(j)(5)(D). The patent holder, however, is not barred from marketing an authorized generic product during the 180-day period. See King Drug Co. of Florence v. Smithkline Beecham Corp., 791 F.3d 388, 393 (3d Cir.2015); Pls. Ex. 943.

B. Wellbutrin Products & Patents

The product at issue in this litigation is Wellbutrin XL, the third iteration of GSK’s Wellbutrin product.

Bupropion hydrochloride, an active pharmaceutical ingredient used to treat depression, was first approved by the FDA for the treatment of major depressive disorder in 1985 in an immediate release formulation known by its branded name, Wellbutrin IR. Wellbutrin IR provides for rapid release of the active ingredient and is taken three times a day. To reduce the degradation of bupropion hydrochloride upon contact with water, GSK added hydrochloric acid as a stabilizing agent. GSK Stmt. ¶ 1-2; Pis.’ Stmt. Opp. ¶ 1-2.

The next bupropion hydrochloride product to reach the market was the sustained release Wellbutrin SR, which is taken twice a day. Wellbutrin SR was approved on the basis of its bioequivalence to Well-butrin IR. Wellbutrin SR also used hydrochloric acid as a stabilizing agent. GSK Stmt. ¶ 1-2; Pis.’ Stmt. Opp. ¶ 1-2.

Biovail acquired the rights to two U.S. patents covering extended release formulations of bupropion hydrochloride: U.S. Patent No. 6,096,341 (the “’341 patent”) and U.S. Patent No. 6,143,327 (the “’327 patent”). Both patents are set to expire on October 30, 2018. GSK Stmt. ¶ 5; Pis.’ Stmt. Opp. ¶ 5.

In 2001, Biovail and GSK entered into an agreement to develop, manufacture, and promote a once-a-day extended release bupropion hydrochloride (the “Co-Promotion Agreement”). The extended release formulation, brand-named Wellbutrin XL, would be taken once a day and allow for the continuous and slow release of bupropion hydrochloride into the bloodstream over time. GSK had not independently developed an extended release version of bupropion hydrochloride. The FDA approved GSK’s Wellbutrin XL NDA in August 2003. GSK Stmt. ¶ 3, 5-6; Pis.’ Stmt. Opp. ¶ 3, 5-6.

C. The Underlying Patent Litigations

There are two sets of underlying patent litigations relevant to the antitrust questions presented by the Wellbutrin Settlement: the cases between Biovail and the generic manufacturers that filed Paragraph IV Certifications (the “Biovail Litigations”) — specifically the Anchen litigation and the cases between Andrx Pharmaceuticals and GSK and Anchen Pharmaceuticals, respectively (the “Andrx Litigations”).

1. The Biovail Litigations

Between September 2004 and May 2005, four generic manufacturers — Anchen Pharmaceuticals, Inc. (“Anchen”), Abrika Pharmaceuticals, LLP (“Abrika”), Impax Laboratories, Inc. (“Impax”), and Watson Pharmaceuticals, Inc. (“Watson”) — filed Abbreviated New Drug Applications (“AN-DAs”) with the FDA, seeking approval for generic versions of Wellbutrin XL. Each generic manufacturer filed a Paragraph IV Certification claiming non-infringement and served GSK and Biovail with that Certification; the Certifications provided notice of the ANDA filing and declared that the generic product would not infringe Biovail’s patents. The Paragraph IV Certifications triggered the 45-day window provided by the Hatch-Waxman Act for filing a patent infringement action. GSK Stmt. ¶ 7-9; Pis.’ Stmt. Opp. ¶ 7-9.

In each case, Biovail filed a lawsuit against the generic manufacturers; GSK initially joined the lawsuits against Anchen and Abrika but withdrew from both cases in April 2005. Biovail and GSK’s December 21, 2004 lawsuit against Anchen, the first generic ANDA filer, triggered the 30-month stay in final FDA approval provided by the Hatch-Waxman Act. GSK Stmt. ¶ 10-11; Pis.’ Stmt. Opp. ¶ 10-11.

Biovail’s Hatch-Waxman lawsuit against Anchen is the case particularly relevant for evaluating the Wellbutrin Settlement, because only the settlement of the Anchen litigation involved any alleged reverse payment.

Anchen’s ANDA did not quantify the amount of hydrochloric acid in its product on a per unit basis. The ANDA described a product that used hydrochloric acid as a “stabilizing agent” in the manufacturing process, but stated that the acid was “evaporated during processing” and indicated a under the column designated “MG PER TABLET.” Similarly, the percentage of hydrochloric acid was listed as and ingredients other than hydrochloric acid were shown in the ANDA to add up to 100.0% of the finished product. A list in the ANDA comparing the Anchen product to Wellbutrin XL did not include hydrochloric acid as an ingredient in Anchen’s product. GSK Stmt. ¶ 12-13; Pis.’ Stmt. Opp. ¶ 12-13.

In the Anchen litigation, Anchen and Biovail disputed the proper claim construction of the term “free of stabilizer”, as used in Biovail’s patent ’341 patent. An-chen argued that the term “free of stabilizer” means the tablet is “free of any substance or agent that tends to prevent changes to the chemical integrity of the tablet.” In contrast, Biovail argued that “free of stabilizer” meant that “the core lacks an effective stabilizing amount of an organic or inorganic acid capable of inhibiting the degradation of bupropion hydrochloride.” GSK Stmt. ¶ 12-13; Pis.’ Stmt. Opp. ¶ 12-13.

On February 8, 2006, Judge Selna issued a Claim Construction Order finding that “free of stabilizer” meant that “the core is free of any substance or agent that tends to prevent changes to the chemical integrity of the tablet.” Regarding Bio-vail’s claim construction argument, Judge Selna’s order stated:

Biovail’s proposed definition of “stabilizer” is not found anywhere in the ’341 patent, and actually contradicts the summary of the invention.

GSK Stmt. ¶ 13; Pis.’ Stmt. Opp. ¶ 13; Am. Order on Cl. Constr. Hr’g 9.

The parties filed cross motions for summary judgment following Judge Selna’s ruling on claim construction. In addition to its claim construction argument, Biovail argued (1) that it was entitled to rely on the representations in Anchen’s ANDA when initiating suit and (2) that Anchen had an obligation under FDA regulations and guidance to quantify even residual amounts of hydrochloric acid (“HC1”) if the HCI tended to stabilize the final tablet, which it had not done. Biovail argued, therefore, that Anchen’s ANDA controlled the infringement inquiry and suggested that Anchen’s product was not “free of stabilizer” as Judge Selna had determined. GSK Stmt. ¶ 14; Pis.’ Stmt. Opp. ¶ 14; In re Wellbutrin XL Antitrust Litig., 2012 WL 1657734 at *10-11 (E.D.Pa. May 11, 2012).

Judge Selna issued a tentative minute order denying Anchen’s motion, finding a genuine issue of material fact regarding whether Anchen’s ANDA directly addressed the infringement inquiry. GSK Stmt. ¶ 14; Pis.’ Stmt. Opp. ¶ 14.

After oral argument, however, Judge Selna granted Anchen’s motion for summary judgment on August 1, 2006. The court found that there were no facts to show that Anchen’s product was “free of stabilizer” since Anchen’s product contained the stabilizer hydrochloric acid. Judge Selna denied Biovail’s motion for reconsideration, and entered judgment on August 25, 2006. Biovail appealed to the Federal Circuit, challenging both the claim construction and summary judgment orders. Biovail’s appeal was docketed on September 25, 2006. GSK Stmt. ¶ 14-15; Pis.’ Stmt. Opp. ¶ 14-15.

Following full briefing, the Federal Circuit held oral argument on September 5, 2007. During oral argument, the Federal Circuit engaged in extensive questioning of Anchen’s counsel regarding whether An-chen was required to list the amount of “stabilizing” hydrochloric acid in a tablet of generic Wellbutrin XL if the hydrochloric acid was serving a function in the tablet. As the Court recognized in granting summary judgment on the plaintiffs’ sham litigation claims, the panel asked whether Anchen had complied with FDA regulation. GSK Stmt. ¶ 15, 16, 19; Pis.’ ■ Stmt. Opp. ¶ 15, 16, 19; Anchen Fed. Cir. Tr. at 16-17; In re Wellbutrin XL Antitrust Litig., 2012 WL 1657734 at *10 n. 10 (E.D.Pa. May 11, 2012).

The Federal Circuit granted Biovail’s motion to withdraw its appeal on June 11, 2008. GSK Stmt. ¶ 15, 19; Pis.’ Stmt. Opp. ¶ 15, 19; Order Granting Mot. to Withdraw.

2. The Andrx Litigations

The litigations among Biovail and the generic manufacturers were not the only patent infringement actions impacting the marketing of both branded and generic 150mg Wellbutrin XL: both GSK and An-chen faced patent infringement actions by Andrx Pharmaceuticals (“Andrx”).

On December 21, 2005, Andrx filed a patent infringement lawsuit against GSK, claiming that GSK’s 150mg Wellbutrin XL product infringed Anchen’s ‘708 patent. Andrx sought treble damages and an injunction preventing the sale of the allegedly infringing products. As a defense, GSK argued that the Andrx patent was invalid and that Andrx’s inequitable conduct should prevent its recovery. The parties’ motions for summary judgment were pending when the case settled in February 2007. Under the settlement, GSK paid Andrx $35 million for past use of the allegedly infringing technology and an ongoing royalty for future use. GSK Stmt. ¶ 44; Pls.’ Stmt. Opp. ¶ 44; Andrx Pharms. v. GlaxoSmithKine, PLC, No. 05-23264 (S.D.Fla.); GSK Exs. 5,18, 21-22.

On November 28, 2006, Andrx filed a patent infringement lawsuit against An-chen, claiming that Anchen’s generic 150mg Wellbutrin XI product would infringe Andrx’s ’708 patent. Andrx sought both preliminary and permanent injunctions to prevent the sale of generic Well-butrin XL. The district court in Andrx had denied Andrx’s motion for a temporary restraining order but had not ruled on Andrx’s motion for a preliminary injunction at the time the settlement was reached; the parties were still briefing the preliminary injunction issues. Andrx Pharms. v. Anchen Pharms., No. 06-7552 (C.D.Cal); GSK Ex. 23; Pls. Ex. 858; GSK Stmt. ¶ 45; Pls.’ Stmt. Opp. ¶ 45.

Anchen was limited in its ability to defend the patent infringement lawsuit: Anchen’s CEO, Chih-Ming Chen, was the inventor of the Andrx patent and had assigned the patent rights to Andrx. Anchen’s marketing partner Teva Pharmaceuticals U.S.A., Inc. (“Teva”) had therefore recognized that the doctrine of “inventor estoppel would prevent Anchen from raising an argument as to the invalidity of the ’708 patent,” which was the defense used by GSK. GSK Stmt. ¶ 82; Pis.’ Stmt. Opp. ¶ 82; Holding Dep. Tr. 65:3-19.

The Andrx lawsuits were settled as part of the Wellbutrin Settlement, discussed below. GSK Stmt. ¶ 45; Pls.; Stmt. Opp. ¶ 45.

D. Biovail’s Citizen Petition

On December 20, 2005, Biovail filed a citizen petition with the FDA; GSK did not join the filing. The citizen petition requested that the FDA require any ANDA for a generic version of Wellbutrin XL to meet four criteria: (1) all bioequivalence trials should calculate and evaluate parameters based on concentrations of the parent drug and active metabolites; (2) any generic formulation should be shown to be bioequiva-lent to Wellbutrin XL, sustained release and immediate release bupropion; (3) the bioequivalence studies should be conducted at steady-state evaluating the performance of the dosage form based on AUC, Cmax, Cmin; and (4) data using the FDA’s approach for evaluating the effect of alcohol on the performance of the controlled-release dosage form should be required to ensure the absence of “dose dumping.” The FDA granted in part and denied in part the citizen petition. GSK Stmt. ¶ 45; Pis.’ Stmt. Opp. ¶ 45; In re Wellbutrin XL Antitrust Litig., 2012 WL at 1657734 *21.

E. Anchen/Teva’s Production of Generic Wellbutrin

Anchen qualified for the Hatch-Waxman Act’s 180-day exclusivity period for generic Wellbutrin XL because it was the first to file an ANDA with the FDA. Anchen waived its exclusivity for 300mg Wellbutrin XL in favor of Impax. In December 2006, Anchen and Teva entered a Distribution and Supply Agreement that authorized Teva to market Anchen’s 150mg version of generic Wellbutrin XL. The agreement required Teva to launch generic Wellbutrin XL no later than the later of 14 days after Anchen received final FDA approval or thirty days after Teva received the product for launch. GSK Ex. 2; Pis. Ex. 844; GSK Stmt. ¶ 20, 26; Pis.’ Stmt. Opp. ¶ 20, 26.

Anchen and Teva had discussed the possible at risk launch of 150mg generic Well-butrin XL, anticipating a launch in the first quarter of 2007. Pis. Exs. 772, 813, 846, 922, 899, 915, 770.

In December 2006, the FDA approved Anchen’s ANDA for both the 300mg and 150mg versions of generic Wellbutrin XL. Anchen’s ANDA listed its Goodyear facility as the intended manufacturing site for its generic Wellbutrin XL product. GSK Stmt. ¶ 22-25; Pis.’ Stmt. Opp. ¶ 22-25.

During the FDA’s January 2007 inspection of Anchen’s Goodyear manufacturing site, the FDA learned for the first time that Anchen was expecting to use its Jer-onimo manufacturing site — rather than the Goodyear manufacturing site — to manufacture its generic Wellbutrin XL product. GSK Ex. 72.

On May 29, 2007, Anchen received the FDA’s Establishment Inspection Report from the January 2007 Goodyear facility inspection. The report explained that the change involving the inspection facility “would require a prior approval supplement if the facility had never been inspected by FDA,” as was the case with An-chen’s Jeronimo facility. The FDA told Anchen that it could provide notice of its manufacturing facility change through a “Changes Being Effected in 30 Days” supplement, known as a “CBE-30”. Anchen filed a CBE-30 to add the Jeronimo facility to its ANDA on June 1, 2007; on June 9, 2007, Anchen provided the FDA with requested drug-release stability data. GSK ■Stmt. ¶ 31-42; Pis.’ Stmt. Opp. ¶ 31-42; GSK Exs. 72, 74.

The FDA orally accepted Anchen’s CBE-30 on June 11, 2007. This acceptance was effective on June 12, 2007. Anchen could not market generic Wellbutrin XL until the FDA accepted Anchen’s CBE-30. Choy Dep. Tr. 32:14-33:2; GSK Ex. 75.

F. The Wellbutrin Settlement

The Wellbutrin Settlement was executed on February 9, 2007 and resolved the Wellbutrin XL Hatch-Waxman litigations brought by Biovail against generic manufacturers Teva, Anchen, Impax, and Watson, as well as the patent litigation brought by Andrx against the generic manufacturers. The Wellbutrin Settlement was comprised of multiple agreements: the Omnibus Agreement (in which GSK was listed as an intended third party beneficiary); the Anchen Definitive Agreement; the Teva License Agreement; the Impax Settlement Agreement; and the Third Amendment, an agreement between GSK and Biovail by which GSK relinquished its right to launch an authorized generic during the 180-day exclusivity period provided by the Hatch-Waxman Act. GSK Stmt. ¶ 52, 54; Pis.’ Stmt. Opp. ¶ 52, 54.

The following lawsuits were pending at the time of the Wellbutrin Settlement: Bio-vail’s appeal of the summary judgement decision in the Anchen litigation; the Watson, Impax, and Abrika lawsuits brought by Biovail; the Andrx lawsuits brought against GSK and Anchen; and the action filed by Biovail against the FDA pertaining to its Citizens Petition (in which Teva, Anchen, and Impax had intervened as defendants). Biovail Labs., Inc. v. Anchen Pharms., Inc., 06-1641 (Fed.Cir.); Biovail Labs. Int’l SRL v. Watson Labs, Inc., No. 05-7799 (S.D.N.Y.); Biovail Labs. Int’l SRL v. Impax Labs. Inc., No. 05-1085 (E.D. Pa.); Biovail Labs., Inc. and SmithKline Beecham Corp. v. Abrika, LLP, et al., No. 04-61704 (S.D. Fla.); Andrx Pharms. v. GlaxoSmithKline, PLC, No. 05-23264 (S.D. Fla.); Andrx Pharms, LLC v. Anchen Pharms., Inc., No. 06-07552 (C.D. Ca.); Minute Orders, Biovail Corp. v. U.S. Food & Drug Admin., No. 06-1487 (D.D.C. Aug. 24, 2006 and Jan. 2, 2007) (granting Teva, Anchen, and Impax’s unopposed motions to intervene as defendants). Biovail’s appeal of the Anchen litigation remained pending following the execution of the Wellbutrin Settlement. GSK Stmt. ¶ 53; Pis.’ Stmt. Opp. ¶ 53.

The Wellbutrin Settlement was initially negotiated among Biovail, Teva, Anchen, and Impax without GSK’s involvement, with Teva taking the lead in negotiating for the generic manufacturers. GSK became directly involved in the settlement discussions in December 2006: at a December 20 and 21 hearing in the Impax Hatch-Waxman litigation, the Honorable Anita B. Brody, who was presiding over the Impax litigation, requested that GSK participate based on the parties’ representation that GSK was necessary to resolving the litigation because of its exclusive rights to market an authorized generic of Wellbutrin XL. GSK Stmt. ¶ 56-57, 59; Pis.’ Stmt. Opp. ¶ 56-57, 59; Brannon Dep. Tr. 131:17-132:6 (“[Tjhere was a federal Judge saying ‘I need you to show up, and I need you to work with these parties to make a settlement possible.”).

Following Judge Brody’s request, GSK joined the settlement discussions. Following settlement discussions, GSK agreed to cede licensing and manufacturing rights to its authorized generic Wellbutrin XL. GSK also agreed to sublicense the Andrx patent license to Biovail. Initially, GSK was only willing to finalize the agreement if Judge Brody found the Wellbutrin Settlement procompetitive; GSK, ultimately acquiesced on this point, however, when Judge Brody refused to review the settlement. GSK Stmt. ¶ 60-63, 65; Pis.’ Stmt. Opp. ¶ 60-63, 65; Brannon Dep. Tr. 190:17-191:4; GSK Ex. 62.

Both parties have recognized that the Wellbutrin Settlement was a complex agreement with numerous provisions. The following provisions are at issue in this action:

1.The Wellbutrin Settlement Allowed the Anchen Litigation to Continue

The Wellbutrin Settlement allowed the Anchen litigation, which was on appeal in the Federal Circuit when the settlement was reached on February 9, 2007, to continue. At the time the Wellbutrin Settlement was reached, the appeal was not fully briefed oral argument on the Anchen appeal was scheduled for September 2007. GSK Stmt. ¶ 68; Pis.’ Stmt. Opp. ¶ 68.

2. Regardless of the Outcome of the An-chen Litigation, the Wellbutrin Settlement Allowed Generic Entry No Later Than May 30, 2008

The Wellbutrin Settlement provided that Teva could enter the market with generic Wellbutrin XL immediately upon Anchen prevailing in its underlying patent litigation (either through a showing of patent invalidity or a showing of non-infringement, or on May 30, 2008, whichever date was earlier. The Wellbutrin Settlement allowed Teva to market generic Wellbutrin XL on May 30, 2008, even if Biovail won its appeal. GSK Ex. 6 at 3.16; GSK Stmt. ¶ 68; Pis.’ Stmt. Opp. ¶ 68; Cremieux Dep. Tr. 335:12-24.

Although internal GSK and Biovail documents recognized that the May 30, 2008 entry date was the most “likely” outcome, all documents simultaneously recognized that there were “defined exceptions” to that date, including the exception of an Anchen litigation victory. Id.; Pis. Exs. 857, 589, 805, 821, 771.

3. The Wellbutrin Settlement Included a “No Authorized Generic” Promise

The Wellbutrin Settlement guaranteed Teva the exclusive right to sell 300mg generic Wellbutrin XL (which Teva had launched at risk) from December 13, 2006 through June 12, 2007, and included an agreement that GSK would not market an authorized generic 150mg Wellbutrin XL until Anchen’s 180-day exclusivity period expired. Because GSK had the sole authority to decide whether to pursue an authorized generic, GSK’s agreement was necessary to effectuate the no authorized generic promise in the Wellbutrin Settlement. GSK Stmt. ¶ 56, 65, 75; Pis.’ Stmt. Opp. ¶ 56, 65, 75.

One constant throughout the negotiations was Teva’s insistence that any settlement involve an agreement that GSK not produce an authorized generic version of Wellbutrin XL during the 180-day exclusivity period. Teva’s representatives expressed the (mistaken) view that the Hatch-Waxman 180-day exclusivity period had been designed to ensure that no authorized generic would be marketed during that time period.

For example, a Stipulation and [Proposed] Order that was drafted but ultimately not submitted to the court by the parties to the Impax litigation noted that the parties tried to negotiate a settlement without an exclusive license to Teva during the first 180 days but “[without this provision, there would be no settlement of this matter.” All drafts of the Wellbutrin Settlement included the no authorized generic agreement. GSK Stmt. ¶ 61-63, 77-78; Pis.’ Stmt. Opp. ¶ 61-63, 77-78; Brannon Dep. Tr. 129:14-130:5 (“Teva.. .was very adamant that there were certain issues that were deal breakers for them, and they required GSK to waive certain rights if there was going to be any settlement at all.”); Brannon Dep. Tr. 96:14-16 (“Teva informed us that there could be no settlement of the litigation unless GSK waived back to Biovail the right to launch an authorized generic.”); Brannon Dep. Tr. 96:20-97:8 (“Teva stated it would not settle the litigation unless GSK waived its right to launch an authorized generic during the first 180 days of generic entry.”).

4. The Wellbutrin Settlement Resolved the Andrx Litigations and Granted An-chen a Sublicense for the Andrx Patent

The Wellbutrin Settlement included sub-licenses through Biovail to the license GSK obtained from Andrx with regard to the 150 mg product for each of the generic manufacturers. Teva took the position during the negotiation of the Wellbutrin Settlement that it needed “the full freedom to operate” without concern over patent infringement claim by Andrx. Additionally, because Anchen’s CEO, Chih-Ming Chen, was the inventor of the Andrx patent (he had left Andrx to found Anchen), Teva had expressed concern that the theory of inventor estoppel would prevent Anchen from raising an argument as to the invalidity of the ’708 patent in the Andrx v. Anchen litigation. GSK Stmt. ¶ 80-82; Pis.’ Stmt. Opp. ¶ 80-82.

GSK and Andrx had settled the Andrx litigation during negotiation of the Well-butrin Settlement. GSK agreed to pay $35 million in full satisfaction of Andrx’s claims for sales of Wellbutrin XL occurring prior to February 1, 2007, and a 3.5% royalty of its net sales after February 1, 2007. Essential for Anchen, the settlement agreement also gave GSK the right to grant a subli-cense of the Andrx ’708 patent to Biovail, which could then sublicense the ’708 patent to the generic companies which would pay a royalty to Andrx. The sublicense provisions made it unnecessary for Anchen, Teva, and Andrx independently to settle the Andrx v. Anchen litigation and ensured that Anchen and Teva would not be prevented from launching their generic Well-butrin XL. Teva had expected that GSK’s settlement with Andrx would include the sublicense provisions. GSK Stmt. ¶ 46-47; Pis.’ Stmt. Opp. ¶ 46-47; GSK Ex. 5, 64.

Anchen, Teva, and Andrx communicated regarding a possible settlement to the Andrx litigation. Teva was explicit in those communications that any discussions were “subject to the overall deal process” of the Wellbutrin Settlement. Pis.’ Stmt. Opp. ¶ 45; Pis. Ex. 864.

5. Biovail Agreed to Guarantee Teva a Supply of Wellbutrin XL

The Wellbutrin Settlement also included a supply provision that required Biovail to supply Teva with Wellbutrin XL if (1) Teva faced limited supply from Anchen or (2) the FDA ruled on Biovail’s citizen petition in a way that made generic Wellbutrin XL non-compliant. Biovail was obligated to provide up to 75 million pills if Anchen faced supply issues, and an unlimited amount of pills if the outcome of the citizen petition made generic Wellbutrin XL non-compliant. The supply option would provide Teva with access to immediate supply of Wellbutrin XL if Anchen prevailed on appeal and Teva was allowed to enter the market. GSK Stmt. ¶ 69, 73; Pis.’ Stmt. Opp. ¶ 69, 73.

Teva requested that the backup supply provision be generous because Teva “need[ed] to be able to sell on the trigger date,” which “require[d] reasonable preparations”. Teva’s 30(b)(6) witness testified that “as a business matter” it made sense to include the supply provision because Teva would not want to have uncertainty in supply to patients. The supply provision was extensively negotiated among GSK, Biovail, and the generic manufacturers. Bauer Dep. Tr. 100:3-7, 112:18-21; Pis. Ex. 886; GSKWXLC00000808; BIO-VAIL0630819; TEVAl_WXL08669.

6. The Wellbutrin Settlement Also Contained Provisions for Enhanced FTC Review .

Under the provisions of the Medicare Modernization Act Section 1112(a) of Subtitle B of Title IX of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (“MMA”), parties to a reverse payment patent litigation settlement are required to submit the settlement agreement and all related agreements to the FTC within 10 business days of entry of the agreement.

The Wellbutrin Settlement required the parties to submit the agreement to the Federal Trade Commission (“FTC”) for review within two days of finalizing the agreement. The parties to the settlement were also required to respond to any FTC inquiries, and if the FTC raised any concerns about the settlement to either revise the settlement as directed by the FTC or terminate the agreement. GSK had equal rights to all other parties to the agreement to terminate the Wellbutrin Settlement if it faced FTC challenges. GSK Stmt. ¶ 85-86; Pis.’ Stmt. Opp. ¶ 86-86.

On February 20, 2007, after submitting the Wellbutrin Settlement to the FTC, Biovail, Anchen, Teva, and Impax met with senior FTC counsel to review the terms of the agreements. Biovail and the generic companies provided the FTC with a total of twenty four documents that comprised the Wellbutrin Settlement, as well as a list of parties to the transaction, the patents asserted, and the lawsuits involved. The parties did not provide a written summary of the agreements for the FTC. GSK Stmt. ¶ 87; Pis.’ Stmt. Opp. ¶ 87.

At the meeting, the parties presented the central features of the Wellbutrin Settlement to the FTC: (i) the back-up supply provision to Teva (including the provision that allowed for supply in the event of an impediment as a result of Biovail’s citizen petition); (ii) the Andrx sublicenses to Teva, Anchen, and Impax; and (iii) the early trigger date for the 150 mg product in the event the Anchen appeal was decided in Anchen’s favor prior to the negotiated May 30, 2008 date. During the meeting, Teva’s antitrust counsel explained to the FTC that the Wellbutrin Settlement “relieved Teva of the potential enormous liability that” launching the 300mg product at risk in December 2006 had created. Teva’s counsel explained to the FTC that this feature distinguished the Wellbutrin Settlement “from a typical Hatch-Waxman settlement” and, as a result, “the FTC in particular should not want to take any action that would upset this agreement because it’s procompetitive [to] launch at risk, and the FTC shouldn’t take actions that might deter Teva from launching at risk, and making it harder to Teva to settle following a launch at risk could be a deterrent.” GSK Stmt. ¶ 88-89; Pis.’ Stmt. Opp. ¶ 88-89.

Teva’s counsel also explained to the FTC that GSK had agreed to relinquish its right to launch an authorized generic during Teva’s 180-day exclusivity period. GSK Stmt. ¶ 88-89; Pis.’ Stmt. Opp. ¶ 88-89.

On March 2, 2007, the FTC notified Biovail and the generic manufacturers that it would not investigate or take any further action regarding the Wellbutrin Settlement. GSK Stmt. ¶ 91-92; Pis.’ Stmt. Opp. ¶ 91-92. .

II. Procedural History

In May 2008, direct and indirect purchasers of Wellbutrin XL filed claims against defendants Biovail Corporation, Biovail Laboratories, Inc., and Biovail Laboratories International (together, “Bio-vail”) and GSK, alleging that Biovail and GSK conspired to prevent generic versions of Wellbutrin XL from entering the American market by filing sham patent infringement lawsuits and a citizen petition with the Food and Drug Administration (“FDA”), and entering into agreements with generic manufacturers to settle the lawsuits. The Court certified the class of direct purchasers on August 11, 2011, and the class of indirect purchasers on August 15, 2011. The Court decertified the indirect purchaser class on June 30, 2015.

On May 11, 2012 the Court granted Biovail and GSK’s motions for summary judgment as to the plaintiffs’ sham litigation and citizen petition claims, but deferred deciding the motions as to the settlement agreements. It was not clear until the briefing on the motions for summary judgment that the plaintiffs were arguing that the settlement agreements were an independent violation of the antitrust laws as opposed to an enhancement of the anti-competitive effects of the alleged sham litigation. The complaint had not explicitly set out this theory of liability. The legality of the settlement agreements, therefore, had not been fully briefed by the parties nor had complete discovery been taken on this topic.

On August 3, 2012, the Court approved the parties’stipulated scheduling order for limited fact and expert discovery pertaining to the settlement agreements in light of the Third Circuit’s decision in In re K-Dur Antitrust Litigation, 686 F.3d 197 (3d Cir.2012).

On November 7, 2012, the Court stayed the case pending the Supreme Court’s decision on whether to grant certiorari in In re K-Dur Antitrust Litigation, and/or FTC v. Watson Pharmaceuticals, 677 F.3d 1298 (11th Cir.2012). On February 22, 2013, the Court continued the stay until the Supreme Court’s decision in the FTC action (“Actavis”) on which the Court had granted certiorari.

The Supreme Court issued its decision in Actavis on June 17, 2013. The Supreme Court rejected both the Third Circuit’s “quick look” antitrust analysis (finding reverse payment settlements presumptively unlawful) and the Eleventh Circuit’s “scope of the patent” test. Rather, the Supreme Court found that reverse payment settlements are to be subject to the traditional rule of reason analysis. FTC v. Actavis, 133 S.Ct. at 2233 (2013).

In light of the Supreme Court’s decision in Actavis, on January 16, 2014, the Court instructed the parties to report how they wanted to proceed. The parties continued discovery, and the motions for summary judgment were fully briefed on July 9, 2015 date. The Court held oral argument on the motions on July 29, 2015.

III. Analysis

GSK has moved for summary judgment on the following grounds: (1) The Supreme Court’s decision in Actavis does not apply to the Wellbutrin Settlement because the underlying patent litigation continued; (2) there is no evidence in the summary judgment record that the Wellbutrin Settlement was anticompetitive under the rule of reason; (3) the plaintiffs have failed to make the requisite showings of antitrust injury and causation demanded in private antitrust litigation; (4) GSK was not a co-conspirator to any allegedly anticompeti-tive scheme; and (5) the settlements in the Watson and Abrika litigations cannot be a basis for the plaintiffs’ recovery.

A. The Applicability of Actavis to the Wellbutrin Settlement

GSK has argued that the Wellbut-rin Settlement, because it allowed the underlying patent litigation to continue, should not be subject to the rule of reason analysis that the Supreme Court in Actavis held should be applied to reverse payment settlements. See Oral Arg. Tr. 173-75; GSK Br. at 20-21; GSK Reply Br. at 4-5. The Court finds some support for GSK’s argument.

The Supreme Court in Actavis did outline a specific type of competitive harm that justified antitrust scrutiny for reverse payment settlements: that the defendant in the patent infringement lawsuit would abandon its patent claim, eliminating the risk of patent invalidation or a finding of invalidity. F.T.C. v. Actavis, 133 S.Ct. at 2236; King Drug Co. of Florence, Inc. v. Smithkline Beecham Corp., 791 F.3d 388, 404 (3d Cir.2015)(hereinafter “Lamictal”). This limited definition of anticompetitive harm also appears in the Supreme Court’s characterization of reverse payment patent settlements as those “in which A, the plaintiff, pays money to defendant B purely so B will give up the patent fight.” Id.

In finding that Actavis applies to no authorized generic agreements, the Third Circuit in Lamictal echoed Actavis and explained that “it is the prevention of that risk of competition — eliminating ‘the risk of patent invalidation or a finding of non-infringement’ by ‘paying the challenger to stay out’ of the market (for longer than the patent’s strength would otherwise allow)— that ‘constitutes the relevant anticompeti-tive harm,’ which must then be analyzed under the rule of reason.” Lamictal, 791 F.3d at 404 (quoting Actavis, 133 S.Ct. at 2236-37).

Anticompetitive harm as the elimination of patent litigation reflects the careful and imperfect interplay between patent law and antitrust law. Patent law grants monopolies, and patents, therefore, act as lawful restraints of trade. See Actavis, 133 S.Ct. at 2230-31 (quoting United States v. Line Material Co., 333 U.S. 287, 308, 68 S.Ct. 550, 92 L.Ed. 701 (1948))(“[A] valid patent excludes all except its owner from the use of the protected process or product.”). In tension with patent law’s grant of exclusivity, the antitrust laws seek to prevent restraints of trade. Actavis, 133 S.Ct. at 2230-31. Patents exist as one of the exceptions to the antitrust laws’ ban on restrains of trade. Lamictal, 791 F.3d at 394 (“A patent... is an exception to the general rule against monopolies... ”)(internal quotations omitted).

The Hatch-Waxman Act — under which the Biovail patent litigation was brought— also embodies this tension. The Act “bal-anee[s] the goal of making available more low cost generic drugs... with the value of patent monopolies in incentivizing beneficial pharmaceutical advancement.” Lamictal, 791 F.3d at 394 (quoting H.R. Rep. No. 98-857). It has a “general procompetitive thrust” and implicitly encourages challenges to patents’ validity. See Id. at 2232. But at the same time, the Hatch-Waxman Act also allows for stiff penalties for the launch of “at risk” generic drugs — those marketed prior to the resolution of the patent litigation; an at risk launch may subject a generic manufacturer to steep infringement damages. This reflects a recognition that a valid and infringed patent maintains its lawfully granted preclusive scope — a lawfully granted preclusive scope that is protected from the antitrust laws.

In Actavis, the Supreme Court explained that it is the joint objective of both patent law and antitrust law to eliminate “unwarranted patent grants” because the public should not be required to “pay tribute to would-be monopolists without need or justification.” Actavis, 133 S.Ct. at 2234. Patent litigation — specifically the litigation contemplated by the Hatch-Waxman Act — ■ serves as a check against potentially “unwarranted patent grants”, and settlements that end patent litigation with a payment that causes delayed generic entry may disrupt this check. Actavis, 133 S.Ct. at 2231 (“The Paragraph IV litigation in this case put the patent’s validity at issue, as well as its actual preclusive scope. The parties’ settlement ended that litigation.”); see also Lamictal, 791 F.3d at 405 (finding that a no authorized agreement can be anticom-petitive where it induces “the generic to abandon the patent fight, [and] the chance of dissolving a questionable patent vanishes (and along with it, the prospects of a more competitive market).”)

There is a critical distinction between the Wellbutrin Settlement and the settlements at issue in Actavis, Lamictal, and every other reverse payment patent settlement addressed by courts in this district post-Actavis: the generic manufacturer Anchen did not “abandon its claim” and continued to litigate the patent litigation. The Wellbutrin Settlement required the underlying patent litigation to continue, maintaining the risk of a finding of patent invalidity or non-infringement and providing for immediate generic entry upon such a finding. The settlement preserved for Anchen, therefore, the possibility — and corresponding benefits — of a victory in the underlying patent suit; the settlement preserved for Biovail the possibility — and corresponding risks — of a loss in the underlying patent lawsuit. Given this key and distinguishing provision of the settlement, the Wellbutrin Settlement does not present the same antitrust concerns that motivated the court in Actavis to subject the settlement to antitrust scrutiny.

Indeed, the Supreme Court and the Third Circuit have classified certain other types of patent lawsuit settlements as being outside the scope of antitrust scrutiny. For example, in Actavis the Supreme Court explained that parties may lawfully settle “by allowing the generic manufacturer to enter the patentee’s market prior to patent expiration, without the patentee paying the challenger to stay out prior to that point.”) Actavis, 133 S.Ct. at 2237. The Supreme Court did not seek to make it impossible to settle Hatch-Waxman patent infringement actions. Actavis, 133 S.Ct. at 2237; see also Lamictal, 791 F.3d at 408.

Such settlements, which are without question agreements in restraint of trade, are not subject to antitrust scrutiny because they allow the strength of the patent claims, not extra-litigation considerations, to control the outcome. At oral argument, the plaintiffs’ counsel agreed that these settlements are not anticompetitive because the strength of the patent dictates the entry date. See Oral Arg. Tr. 178 (“[WJithout money you are negotiating back and forth over the actual strength of the patent..

Similarly, in the Wellbutrin Settlement, the patent itself remained controlling. Unlike a typical reverse payment patent settlement, in which the settlement itself keeps the patent from playing a role in the entry date, a finding of invalidity or non-infringement — a finding on the patent’s strength — dictated the entry date for generic Wellbutrin XL.

The Court, however, is reluctant to apply the mechanical test suggested by GSK, whereby any reverse payment that allows the underlying patent litigation to continue is automatically exempt from the antitrust laws. Such a test could foreseeably create an easily exploited antitrust loophole for reverse payment settlements. Such “formalistic approach[s]” are unhelpful in antitrust actions. See United States v. Dentsply Int’l, Inc., 399 F.3d 181, 189 (3d Cir.2005).

The Court, therefore, will analyze the Wellbutrin Settlement under the rule of reason, as the Supreme Court instructed in Actavis.

B. The Rule of Reason Analysis

GSK argues that the plaintiffs have not and cannot demonstrate that the Well-butrin Settlement was anticompetitive under the rule of reason. The rule of reason asks three progressive questions of challenged agreements: (1) does the agreement have anticompetitive effects; (2) if so, are there procompetitive justifications for the agreement; and (3) can the plaintiffs present evidence that the challenged conduct is unnecessary to achieve those justifications. Because there is no genuine issue of material fact as to the answers to these questions, and a reasonable jury could not find the Wellbutrin Settlement to be anticom-petitive under the rule of reason, the Court grants GSK’s motion for summary judgment.

In Actavis,-the Supreme Court instructed district courts to apply the traditional rule of reason analysis when evaluating reverse payment settlements. Actavis, 133 S.Ct. at 2237-38 (“We therefore leave to the lower courts the structuring of the present rule-of-reason antitrust litigation.”); see also Lamictal, 791 F.3d at 403 (“courts should apply the traditional rule-of-reason analysis”).

Under the traditional rule of reason analysis, the plaintiffs bear the initial burden of showing that the challenged agreement “produced adverse, anticom-petitive effects within the relevant product and geographic market.” Lamictal, 791 F.3d at 412 (quoting United States v. Brown Univ., 5 F.3d 658, 668-669 (3d Cir.1993). If the plaintiffs succeed in showing anticompetitive effects, the burden then shifts to the defendant to show “that the challenged conduct promotes a sufficiently pro-competitive objective.” Id. The plaintiffs may then rebut the defendant’s procompetitive justifications as “not reasonably necessary to achieve the stated objective.” Id.

In conducting the rule of reason analysis, the Court will evaluate the Well-butrin Settlement’s reasonableness at the time it was entered into. See Polk Bros., Inc. v. Forest City Enterprises, Inc., 776 F.2d 185, 189 (7th Cir.1985); SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1207 (2d Cir.1981). The Court will also evaluate the settlement as a whole, and not in a piecemeal, provision-by-provision approach. See In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 752 (E.D.Pa.2014); see also In re Lipitor Antitrust Litig., 46 F.Supp.3d 523, 548-49 (E.D.Pa.2014). The Wellbutrin Settlement was negotiated as a whole, agreed to as a whole, and went into effect as a whole, so failing to evaluate the agreement as a whole would overlook context essential to determining any possible anti-competitive effects.

To survive summary judgment, the plaintiffs must present a “genuinely disputed issue of material fact” as to the elements of the rule of reason analysis; only then will the case go to a jury. In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 316 & n. 12 (3d Cir.2010); see also In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383, 396, 2015 WL 5332604 at *6 (3d Cir. Sept. 15, 2015)(“[T]he summary judgment standard in antitrust cases is generally no different from the standard in other cases.”); Lamictal, 791 F.3d at 413 n. 38 (explaining that “nothing in this opinion precludes a defendant from prevailing on a.. .motion for summary judgment”).

1. Anticompetitive Effects

The plaintiffs bear the initial burden under the rule of reason to demonstrate that the agreement had anticompeti-tive effects. Nw. Wholesale Stationers, Inc. v. Pacific Stationery and Printing, Co., 472 U.S. 284, 297 n. 9, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985); United States v. Brown Univ. in Providence in State of R.I., 5 F.3d 658, 668 n.8 (3d Cir.1993). They have failed to meet that burden.

The plaintiffs, as discussed in detail above, cannot establish that the Wellbutrin Settlement presented the type of anticom-petitive harm contemplated by Actavis and Lamictal because the settlement, did not induce the generic manufacturer “to quit its patent challenge” and thus did not eliminate the “risk of patent invalidation or a finding of non-infringement” by the court. Lamictal, 791 F.3d at 411. In contrast, the Wellbutrin Settlement specifically contemplated that the generic manufacturer would continue its patent challenge and allowed the generic to enter immediately upon a finding of patent-invalidity, maintaining the risk of patent invalidation or a finding of non-infringement even after the settlement. This was not the type of settlement or anticompetitive harm that faced the Supreme Court in Actavis.

Because the plaintiffs cannot allege the anticompetitive harm contemplated by Ac-tavis or addressed in Lamictal, they necessarily rely on alternate theories to satisfy their burden under the rule of reason: (1) that a showing of GSK’s market power in the bupropion hydrochloride market is enough to satisfy their initial burden under the rule of reason; and (2) that the Well-butrin Settlement delayed the launch of 150mg generic Wellbutrin XL.

a. Market Power

The plaintiffs have suggested that a showing of GSK’s market power over the bupropion hydrochloride market satisfies their initial burden under the rule of reason. In the context of reverse payment patent settlement lawsuits, however, the Court finds that market power alone cannot be sufficient to demonstrate anticom-petitive effects under the rule of reason.

Although the Lamictal court, in quoting Brown University, acknowledged that “courts typically allow proof of market power instead” of proof of actual anticom-petitive effects, the court did not find that market power could supplant proof of anti-competitive effects in reverse payment patent settlement lawsuits. Lamictal, 791 F.3d at 412. In fact, the court continued to explain that “to prove anticompetitive effects, the plaintiff must prove payment for delay, or, in other words, payment to prevent the risk of competition.” By continuing its explanation, the Lamictal court was clear that it was not enough for the plaintiffs simply to prove market power. Id.; see also In re Nexium (Esomeprazole) Antitrust Litig., 968 F.Supp.2d 367, 389-90 (D.Mass.2013)(recognizing that plaintiffs-must demonstrate both market power and anticompetitive effects).

In explaining the application of -the rule of reason to reverse payment patent settlements, the Supreme Court distinguished a showing of market power from the necessary showing of the anticompetitive harm of such payments. Actavis, 133 S.Ct. at 2236 (“[W]here a reverse payment threatens to work unjustified anticompetitive harm, the patentee likely possesses the power to bring that harm into practice.”). Allowing market power alone to satisfy the plaintiffs’ burden of showing actual anti-competitive effects in reverse payment patent lawsuits is likely to treat the settlements as presumptively unlawful because, while a patent does not create a presumption of market power, Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28, 31, 126 S.Ct. 1281, 164 L.Ed.2d 26 (2006), by their nature pharmaceutical patents often carry with them market power, Actavis, 133 S.Ct. at 2236. Actavis rejected a framework under which reverse payment settlements were presumptively unlawful.

To allow a showing of market power to satisfy the plaintiffs’ burden under the rule of reason would be in tension with the holdings of Actavis and Lamictal. The plaintiffs, therefore, must show actual anti-competitive effects of the Wellbutrin Settlement.

b. Delayed Wellbutrin XL Entry

In attempting to demonstrate the anti-competitive effects of the Wellbutrin Settlement in the form of a delayed entry, the plaintiffs first argue that they must show only a “large payment” (in the form of a no authorized generic agreement) and a “delay” of generic entry. This argument appears to be advocating that the Court use a “quick look” analysis whereby every reverse payment settlement presumptively has anticompetitive effects because there is a payment and a subsequent delay of generic entry. Although “pay for delay” may be a useful shorthand for discussing reverse payment settlements, it does not capture the entirety of the antitrust analysis. In fact, such an analysis was explicitly rejected by the Supreme Court in Actavis. Actavis, 133 S.Ct. at 2236-37 (“The FTC urges us to hold that reverse payment settlement agreements are presumptively unlawful... We decline to do so.”). Even if a reverse payment settlement agreement does end the underlying patent litigation, anticompetitive effects are not presumed: “the likelihood of a reverse payment bringing about anticompetitive effects depends upon its size, its scale in relation to the payor’s anticipated future litigation costs, its independence from other services for which it might represent payment, and the lack of any other convincing justification.” Lamictal, 791 F.3d at 412 (quoting Actavis, 133 S.Ct. at 2237).

The plaintiffs also attempt to show anti-competitive effects by arguing that GSK viewed the no authorized generic promise as being made for delayed generic entry; to support this, the plaintiffs rely on both testimony by GSK officials and internal GSK documents . At most, the evidence shows recognition on the part of GSK that generic Wellbutrin XL could not enter the market until either Anchen/Teva succeeded on appeal or until the trigger date of May 30, 2008, whichever is earlier, and that a no authorized generic promise was made. The plaintiffs therefore fail to establish that the no authorized generic agreement caused the delayed entry. Even if the evidence showed a contemplated connection, however, that may not be enough to satisfy the plaintiffs’ initial burden under the rule of reason where, as here, the underlying patent litigation continued after the settlement was reached and the question of patent validity remained with the court.

It is in keeping with the traditional rule of reason analysis to require the plaintiffs to show that the Wellbutrin Settlement actually resulted in the delayed entry of Wellbutrin XL — that absent the Wellbutrin Settlement, generic competition would have occurred earlier. The plaintiffs’ own expert Dr. Leitzinger recognized that “[t]he operative question is the manner in which the agreement — -inclusive of the reverse payment — altered the date at which generic entry otherwise would have occurred.” Leitzinger Decl. (Oct. 6, 2014). The plaintiffs’ evidence, therefore, presents two but-for scenarios that could allow them to show the anticompetitive effects of the Wellbutrin Settlement: (1) that a settlement allowing earlier entry would have been reached absent a no authorized generic agreement; or (2) that continued litigation would have resulted in earlier entry. The plaintiffs have failed to offer any proof for either of these but-for scenarios.

i. Alternative Settlement Scenario

There are no facts in the summary judgment record to support a contention that, absent the no authorized generic agreement, an alternate settlement would have been reached.

The summary judgment record, in fact, shows the opposite: Teva expressly and unwavering