Medical Mutual v. Abbvie Inc. (159 F. Supp. 3d 898, 2016)

MEMORANDUM OPINION AND ORDER (CORRECTED)

MATTHEW F. KENNELLY, District Judge:

Defendants in this MDL proceeding are manufacturers, sellers, and promoters of testosterone replacement therapy drugs (TRTs). Nearly all of the plaintiffs have brought lawsuits claiming personal injuries they claim were caused by TRTs. The Court has already ruled on a motion to dismiss many of those personal injury claims. See In re Testosterone Replacement Therapy Products Liab. Litig. (“In Re TRT”), No. 14 C 1748, 2014 WL 7365872 (N.D.Ill. Dec. 23, 2014) (denying motions to dismiss as to personal injury fraud, misrepresentation, and failure-to-warn claims).

In the case now before the Court, plaintiff Medical Mutual of Ohio (MMO), an Ohio mutual insurance company, purports to represent a class of third-party payors (TPPs) who allege that they suffered economic injuries when — as the result of defendants’ fraudulent marketing schemes— they made reimbursement payments for medically inappropriate TRT prescriptions. In its complaint, MMO sorts the twenty-three named defendants into seven separate groups: (1) Solvay S.A., Solvay America, Inc., Solvay Pharmaceuticals, Inc., Un-imed Pharmaceuticals, LLC, Besins Inc., Besins Healthcare, S.A., Abbott Products, Inc., AbbVie Inc., and Abbott Laboratories (collectively, AbbVie or AbbVie defendants); (2) Auxilium Pharmaceuticals, Inc. (Auxilium); (3) GlaxoSmithKline LLC (GSK); (4) Oscient Pharmaceuticals Corp. (Oscient); (5) Eli Lilly and Company, Lilly USA, Inc., Aerux Commercial Pty Ltd., Acrux DDS Pty Ltd. (collectively, Lilly or Lilly defendants); (6) Actavis pic, Actavis Pharma, Inc., Actavis, Inc., Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., Anda, Inc. (collectively, Actavis or Aetavis defendants); and (7) Endo Pharmaceuticals, Inc. (Endo).

MMO alleges that defendants participated in a fraudulent marketing scheme that mischaracterized TRT drugs as a safe and effective treatment for various “off label” conditions. As a result, MMO and other TPPs allegedly paid for numerous off-label TRT prescriptions that were unnecessary and unsafe for their insureds and for which they would have never paid but for defendants’ fraudulent scheme. In its complaint, MMO asserts claims for mail and wire fraud in violation of the federal RICO Act, 18 U.S.C. § 1962(c), as well as for conspiracy to violate the Act, 18 U.S.C. § 1962(d), against AbbVie, Auxilium, Lilly, Aetavis, and Endo (the RICO defendants). MMO also asserts claims against AbbVie, Auxilium, Lilly, Aetavis, and Endo under the consumer protection statutes of all fifty states and the insurance fraud statutes of the states in which they are headquartered. In addition, MMO asserts claims against “all defendants” for common law fraud, negligent misrepresentation, and unjust enrichment. Plaintiff has already amended its complaint twice: one substantive amendment in response to defendants’ motion to dismiss and a technical, non-substantive amendment. All defendants except Besins Inc., Besins Healthcare, S.A., and Oscient have moved to dismiss this second amended complaint for lack of standing and for failure to state a claim. Solvay, S.A. and Solvay America, Inc. have also moved to dismiss for lack of personal jurisdiction. For the reasons stated below, the Court grants defendants’ motion in part and denies it in part.

Background

The Court takes the following facts from the allegations in plaintiffs 434-page complaint, which describes a number of nationwide schemes orchestrated by defendants with the intention to boost TRT sales by deceiving patients, primary care physicians, and TPPs about the drugs’ safety and efficacy for treating certain conditions. The United States Food and Drug Administration (FDA) has approved TRT drugs for the treatment of a single rare condition, called “classical hypogonadism,” which is characterized by insufficient secretion of the testosterone necessary for the body to perform normal functions. Though the FDA has not approved TRT drugs for the treatment of conditions other than classical hypogonadism, plaintiff alleges that defendants have marketed the drugs as being safe and effective for the treatment of other “off label” conditions and symptoms, such as erectile dysfunction, diabetes, AIDS, cancer, depression, and obesity. Defendant’s off-label marketing scheme allegedly included a “disease awareness” campaign that promoted the existence of a false disease, called “Andro-pause” or “Low T,” which they had invented and for which they claimed TRT drugs were a safe and effective treatment.

According to plaintiff, however, off-label TRT drug use — for “Low T” or otherwise — is neither safe nor effective. Plaintiff asserts that no competent medical evidence demonstrates that TRT drugs are effective at treating off-label conditions but that medical evidence does show that off-label TRT use is associated with increased incidence of adverse cardiovascular events, including myocardial infarction (heart attack), stroke, pulmonary embolism, and other thromboembolic (blood clotting) adverse events. As one doctor allegedly commented regarding TRT drugs’ effectiveness, for the millions of patients that' do not have truly low testosterone levels, TRT drugs are “in the same category as snake oil.” Compl. ¶ 21. In addition, plaintiff alleges that the safety risks are particularly high for aging men, who are most likely to experience symptoms of “Low T” and at whom defendants’ marketing scheme was primarily aimed. According to plaintiff, in certain patient populations, “TRT drugs may increase the incidence of adverse events and death by over 500%.” Id. ¶ 93. Though increased off-label marketing coincided with an “astronomical spike” in TRT drug prescriptions and sales, those sales have begun to decrease, despite “continued rampant promotion,” in response to recent revelations of the drugs’ safety risks. Id. ¶¶ 18-20.

Plaintiff alleges that defendants’ own research put them in a position to be aware of the risks TRT use poses. For example, in 2009, a safety review board halted a study of frail and aging men using Testim (Auxilium’s TRT drug) after 23 of 106 patients in the Testim group suffered adverse cardiovascular events, compared to 5 of the 103 placebo group patients.

Plaintiff asserts that despite defendants’ alleged knowledge (or obligation to know) of their products’ dangers and ineffectiveness, defendants targeted TPPs, physicians, and consumers with fraudulent marketing schemes that affirmatively promoted the drugs’ safety and effectiveness for off-label use and actively concealed unfavorable evidence. According to plaintiff, each group of RICO defendants engaged in respective marketing schemes by forming four “complementary and mutually reinforcing” fraudulent enterprises: a TPP “formulary access” enterprise, which targeted TPPs directly; “peer selling” and “publication” enterprises, which targeted prescribing physicians; and a “direet-to-consume” enterprise, which targeted consumers. Id. ¶¶ 140-144. Totaling the alleged enterprises formed by AbbVie, Aux-ilium, Lilly, Actavis, and Endo, plaintiff asserts the existence of twenty complementary and mutually reinforcing fraudulent marketing enterprises. Plaintiff alleges that the planning and coordinating of each fraudulent enterprise “required extensive use of the wires and mails” and that the RICO defendants conducted the affairs of the enterprises through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c). In addition, plaintiff alleges that the RICO defendants conspired with third parties and with each other to carry out their fraudulent enterprises, thus violating 18 U.S.C. 1962(d). Though plaintiff does not allege that GSK or Oscient themselves formed illegal enterprises in violation of the RICO Act, it does allege that they participated in Auxi-lium’s peer selling enterprise.

A. TPP formulary access enterprises

Because, as plaintiff alleges, TPPs are the entities “directly reimbursing most, if not all, of the cost of TRT Drug prescriptions,” TPPs were the primary and intended victims of the RICO defendants’ marketing schemes. Id. ¶ 30. Typically, if a TPP provides drug benefit coverage for a patient’s TRT drug prescription, the TPP will pay approximately 80-90% of the prescription’s cost, and the patient will pay a co-payment for the remainder. Plaintiff asserts that it reimbursed for “one or more of Defendants’ drug products” and that it paid a total of $38,962,566.73 in TRT reimbursements from November 2001 through April 2015. Id. ¶ 37-38.

Whether a TPP will cover the cost of a particular drug depends on the “formulary status” the TPP has assigned to that drug. According to plaintiff, the goal of TPPs’ prescription drug benefit programs is to provide “appropriate, affordable and accessible coverage” for patients, and TPPs’ “managed care” benefit programs use a variety of tools to manage and contain prescription drug costs. Id. ¶ 169. Formu-laries are one such cost-containment tool. Plaintiff explains that if a TPP places a drug “ ‘on formulary,’ it will be covered when prescribed.” Id. ¶ 172. TPPs can thus use formularies to give patients incentives ' to make more economical prescription choices. For example, where an expensive brand-name drug has a cheaper, medically equivalent alternative, TPPs can place the cheaper drug “on formulary,” guaranteeing its coverage and giving patients incentives to choose that drug over the more expensive alternative. To determine the appropriate formulary status for various prescription drugs, TPPs typically establish committees of experts, called “pharmacy and therapeutics committees” (P&T committees), to review clinical evidence and evaluate the drug products under consideration for formulary placement.

According to plaintiff, to ensure favorable formulary status for their respective TRT drugs, the RICO defendants each formed fraudulent marketing enterprises that engaged TPPs and their P&T committees directly through deliberate in-person misrepresentations of their respective TRT drugs’ safety and efficacy, the submission of false and misleading materials, and the concealing of unfavorable medical evidence. The AbbVie defendants, for example, listed plaintiff as one of its “focus accounts” and allegedly sought to find a local doctor to “champion [their TRT drug]” and encourage plaintiff to give the drug preferred formulary status. Id. ¶ 302.

Plaintiff alleges that it and other TPPs placed TRT drugs on their formulary tiers and paid for unnecessary and unsafe TRT prescriptions. The complaint, however, contains some arguable ambiguity about the causal role that defendants’ misrepresentations played in plaintiffs decision to place the TRT drugs on formulary. On one hand, plaintiff acknowledges' the seriousness of classical hypogonadism and states that it is precisely because of the “seriousness of this disease state” that TPPs have “widely accepted” TRT drugs on their for-mularies and have refrained from “creating] barriers that would prevent access to the TRT drugs on their formular-ies.” Id. ¶ 175. On the other hand, plaintiff alleges that TPPs were “deceive[d].. .into placing their respective TRT drugs on their formularies,” id. ¶ 180, and that they “relied on Defendants’ fraudulent, deceptive and misleading representations” when placing the TRT drugs on their formulary tiers and paying for off-label TRT prescriptions, id. ¶ 145.

Similarly, the complaint is arguably somewhat ambiguous regarding how plaintiff and other TPPs would have restricted reimbursement for TRT drugs had they known the truth about the risks and ineffectiveness of off-label use. According to plaintiff, TPPs lack access to a patient’s diagnosis when they make a prescription reimbursement, and thus it was impossible for them to know why a given TRT drug was prescribed (for example, whether to treat classical hypogonadism or mere “Low T”). Plaintiff asserts, therefore, that defendants “knew that it would be difficult (if not impossible) for [plaintiff] to limit coverage for TRT drugs except to place the drugs on a different formulary tier.” Id. ¶ 179. Given that TPPs placed TRT drugs on formulary to cover prescriptions for patients with classical hypogonadism, plaintiffs own allegations appear to suggest that even had TPPs known about the dangers and ineffectiveness of off-label TRT use, it would have been “difficult (if not impossible)” for them to avoid paying for off-label prescriptions. Certain allegations in the complaint, however, can be read to indicate that TPPs could restrict coverage to on-label uses even if a drug were placed on formulary. Plaintiff alleges, for example, that TPPs could not “easily...restrict utilization to on-label uses” because they lacked patients’ diagnostic information, and where they did “request diagnostic information (such as, for example, by requiring prior authorization or a letter of medical necessity...),” defendants themselves provided the forms and disguised the fact that the prescriptions were for off-label uses. Id. ¶ 32 (emphasis added). Thus one may infer that had TPPs known about the risks of off-label use and had defendants refrained from disguising patients’ true diagnoses, TPPs could have placed TRT drugs on formulary but required prior authorization to ensure that they paid only for on-label uses.

B. Peer selling enterprises

Plaintiff alleges that once the defendants had assurances that they would receive reimbursement through their access to TPP formularies, they sought to “pull through” (that is, “cash in”) on that access by fraudulently marketing the drugs to physicians and consumers in order to boost prescription totals. One way each RICO defendant attempted to deceive prescribing physicians was by establishing a so-called “peer selling” enterprise, through which physicians could educate their peers about the purported benefits (and safety) of defendants’ TRT drugs. The peer selling enterprises’ primary method by which physicians could market their defendants’ drugs to other physicians was the hosting of numerous educational events at which physicians could present to their peers about defendants’ TRT drugs. Because defendants could not legally produce and host such events directly, they created peer selling enterprises composed of medical marketing firms and several dozen physician participants. The physicians presenting at the events were trained or approved by defendants and were expected to use their presentations to promote false information about the safety and effectiveness of off-label TRT use. At these functions — which were often billed as continuing medical education events — defendants, medical marketing vendors, and participating physicians allegedly instructed doctors about how to use TRT drugs for unapproved and unsafe indications and omitted information about studies showing TRT drugs’ risks and ineffectiveness for off-label use. Defendants allegedly paid participating physicians substantial sums in the form of research grants or direct payments for their provision of “consulting” or “advisory board” services, and defendants refused to allow doctors to speak at events if they expressed unwillingness to act as “promotional mouthpieces” for defendants. Id. ¶ 201.

In addition to hosting educational events, the peer selling enterprises also involved direct “details” or sales calls to physicians’ offices. On these calls, defendants’ sales representatives allegedly “detailed” (that is, educated) physicians about the benefits of off-label TRT use. The complaint’s only mentions of defendants GSK and Oscient is in connection with direct marketing to physicians of this sort, as participants in Auxilium’s peer selling enterprise.

Plaintiff alleges that the peer selling enterprises were highly successful and produced “highly favorable” returns on investment. Id. ¶ 215. The enterprises allegedly created the perception among prescribing physicians that other physician specialists were seeing positive clinical results with off-label TRT use. As a result of the peer selling enterprises and physicians’ reliance on the misrepresentations they produced, plaintiff alleges, unapproved use of TRT drugs increased significantly.

C. Publication enterprises

According to plaintiff, the RICO defendants’ promotion of their TRT drugs to prescribing physicians was not limited to hosting educational events and making direct sales calls to physicians’ offices. Plaintiff asserts that to create the perception that the medical literature supported their claims about the safety and efficacy of their TRT drugs, the RICO defendants formed enterprises — comprised of each RICO defendant, medical marketing companies, and participating physicians — to generate favorable publications that would appear to have been produced by neutral, independent physicians and researchers.

According to plaintiff, the RICO defendants’ publication enterprises employed a variety of methods to distribute defendants’ allegedly misleading marketing messages through the guise of objective scientific publications. These methods allegedly included designing studies in ways most likely to produce favorable results, hand picking specialists to act as the study investigators, hiring non-physician “ghostwriters” to produce the articles’ content and then paying physicians to “lend” their names as the articles’ authors, concealing or refusing to publish unfavorable results their studies occasionally produced, and distributing “reprints” of favorable publications by the thousands. In addition, defendants allegedly paid some physicians large sums of money, often in the form of research grants, to publish favorable journal articles and letters to the editor supporting off-label TRT use. Plaintiff alleges generally that defendants’ publication enterprises caused TPPs to pay millions of dollars in reimbursements for defendants’ TRT drugs that they would not have made but for the fraudulent activities engaged in through the enterprises.

D. Direct-to-consumer enterprises

In addition to its allegations about defendants’ fraudulent marketing aimed at TPPs and prescribing physicians, plaintiff also asserts that the RICO defendants formed enterprises to make fraudulent representations about TRT drug use directly to consumers. According to plaintiff, these direct-to-consumer (DTC) enterprises involved the use of misleading print, internet, and television advertisements, which “redefined and expanded the definition of hypogonadism” and promoted TRT drugs as safe and effective for off-label uses. Id. ¶255. The alleged goal of-these advertising campaigns was to drive patients to ask their physicians for prescriptions for TRT drugs. Thus on plaintiffs account, at the same time that prescribing physicians were hearing from their peers, from “respected thought leaders,” and from the medical literature that they should prescribe defendants’ TRT drugs, they were also receiving requests for such drugs from their patients who had viewed defendants’ DTC advertising.

Defendants’ DTC advertising campaigns were often “unbranded”- — that is, they advertised TRT drugs and promoted the existence of “Low T” generally, rather than marketing any particular brand-name TRT drug — and were primarily aimed at .men over the age of 45. The campaigns’ alleged goal was to convince consumers that they suffered from “Low T” or otherwise had symptoms which TRT drugs could safely and effectively treat, and that they should request the drugs from their physicians. Defendants’ descriptions of “Low T” were allegedly so vague and general that consumers might conclude that TRT drugs could effectively treat the symptoms of any man undergoing the natural aging process. According to a critic of the advertising campaigns, if a man were to encounter defendants’ advertisements and take one of the self-diagnosing “Low T” quizzes found on defendants’ websites, it would be “hard for any man not to determine he must be suffering from low testosterone.” Id. 1Í274. Throughout defendants’ DTC marketing, plaintiff alleges, each defendant failed to provide adequate warnings about the cardiovascular health risks associated with its TRT drugs.

E. Conspiracy among the RICO defendants

In addition to bringing claims against each RICO defendant for allegedly violating 18 U.S.C. § 1962(c) by forming their respective marketing enterprises, plaintiff also alleges that the RICO defendants violated 18 U.S.C. § 1962(d) by conspiring with others to participate in the enterprises. Plaintiff alleges that the RICO defendants conspired both with third parties— namely, the physicians, marketing firms, and other vendors with whom they worked to carry out their respective enterprises— and with each other.

Plaintiffs allegations regarding the RICO defendants’ conspiracies with each other focus primarily on their alleged unbranded DTC marketing campaign. According to plaintiff, the RICO defendants adopted the strategy of marketing their drugs through an unbranded or “disease awareness” campaign, rather than through brand-specific campaigns, because they believed such a campaign would allow them to skirt FDA regulations which prohibit off-label marketing. Plaintiff alleges that the RICO defendants “knowingly conspired” to exploit this perceived regulatory loophole to create belief in a new “curable disease state” (“Low T”) and to boost TRT drug sales. Compl. ¶ 761. In participating in the unbranded campaigns,' each defendant “jointly adopted the philosophy of ‘making a bigger pie,’ ” recognizing that increased overall sales of TRT drugs would likely lead to increase sales of their individual drugs. Id. ¶ 796. To make the pie bigger, according to plaintiff, defendants “cooperatively agreed and worked to inflate the hypogonadism prevalence numbers by grossly exaggerating what they characterized as á low testosterone epidemic.” Id. ¶ 775. In carrying out the campaign, defendants allegedly acted “in concert” in their communications to TPPs, physicians, and patients, and they also acted “in concert” in choosing their messengers. Id. ¶¶ 778-79. For example, plaintiff alleges that AbbVie, Auxilium, Endo, GSK, and Lilly conspired with Men’s Health Network — a non-profit organization that provides men with “health awareness and disease prevention messages and tools, screening programs, educational materials, advocacy opportunities, and patient navigation — to advertise TRT drug use as part of an unbranded campaign. Id. ¶ 785. Plaintiff alleges that AbbVie gave Men’s Health Network hundreds of thousands of dollars in the form of “unrestricted educational grants” to promote TRT drug use and that AbbVie, Auxilium, Endo, GSK, and Lilly “repeatedly referenced [Men’s Health Network] on their promotional materials.” Id. ¶¶ 785-86.

Defendants’ “common deceptive marketing strategy,” according to plaintiff, “created an explosion in the prescribing of the TRT Drugs by creating the perception that the TRT Drugs were effective and safe for myriad conditions and symptoms.” Id. ¶ 799.

Discussion

In reviewing a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a court accepts all well-pleaded facts as true and views them in a light most favorable to the plaintiff. Doe v. Vill. of Arlington Heights, 782 F.3d 911, 915 (7th Cir.2015). Allegations that amount to “no more than conclusions,” however, are not entitled to the same assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To determine whether a plaintiff has adequately stated a claim for relief, a court must assess whether the complaint’s well-pleaded factual allegations “plausibly give rise to an entitlement of relief.” Id. at 679, 129 S.Ct. 1937. A court should use this same “plausibility” standard in evaluating facial challenges to a plaintiffs standing under Article III of the Constitution. Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir.2015)..

In addition to alleging facts that lend facial plausibility to their claims, plaintiffs who allege fraud or mistake “must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Allegations of fraud in a civil RICO complaint are thus subject to this heightened pleading standard under Rule 9(b). Slaney v. The Int’l Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir.2001).

I. Article III standing

Plaintiff asserts four RICO claims (one for each alleged marketing enterprise) and a RICO conspiracy claim against each of the RICO defendants; it also asserts state insurance-fraud and consumer-protection statutory claims, as well as state common law claims for fraud, negligent misrepresentation, and unjust enrichment. In their briefing on the federal claims, the parties primarily focus on whether plaintiff has “statutory standing” under the RICO Act and devote relatively little space to discussing MMO’s standing under Article III of the Constitution. Defendants point to a number of cases in which district courts from other circuits have ruled that TPPs lacked Article III standing to bring their RICO and state law claims against prescription drug manufacturers. Plaintiff does not attempt to distinguish these cases but instead argues that because it satisfies the more stringent standing requirements of the RICO- Act, it necessarily has standing under Article III. Because plaintiff must have standing under Article III for the Court to exercise its jurisdiction over defendants for any of plaintiff’s claims, the Court addresses the Article III question first. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting practice of assuming jurisdiction for purpose of deciding the merits).

To have standing to sue under Article III, a plaintiff must have (1) suffered a concrete “injury in fact,” (2) that is “fairly traceable” to the defendant’s conduct and not “the result of the independent action of some third party,” and (3) that is likely to be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice.... ” Id. at 561, 112 S.Ct. 2130. In this case, plaintiffs general allegations are sufficient to satisfy Lujan’s, three requirements for Article III standing. Plaintiff has alleged that it paid for TRT drugs that it would not have paid for absent defendants’ fraudulent marketing; this economic loss constitutes a concrete injury in fact. Plaintiff also alleges that defendants specifically targeted TPPs with their fraudulent schemes and made direct misrepresentations to plaintiff and other TPPs, which caused injury. The Court thus concludes that plaintiffs injury is “fairly traceable” to defendants’ conduct for Article III pur- ■ poses. Finally, because plaintiff allegedly suffered an identifiable economic loss, a favorable decision could redress its injury.

The district court opinions on which defendants rely for their Article III argument are not authoritative, and each is distinguishable nevertheless. In both Southern Illinois Laborers’ & Employers Health & Welfare Fund v. Pfizer Inc., No. 08 CV 5175KMW, 2009 WL 3151807, at *7 (S.D.N.Y. Sept. 30, 2009), and Plumbers & Pipefitters Local 572 Health & Welfare Fund v. Merck & Co., No. 12-1379 MAS LHG, 2013 WL 1819263, *7 (D.N.J. Apr. 29, 2013), the courts ruled that TPPs lacked standing because, unlike in this case, they had not alleged that the defendant drug manufacturers had made any misrepresentations to the TPPs directly. Because plaintiffs complaint contains allegations of that sort, those cases are distinguishable. So, too, is In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir.2012). In that case, the court ruled that the TPP plaintiff had failed to show the required connection between its injury and defendant’s conduct because, unlike in this case, the TPP attempted to rely exclusively on factual allegations concerning drugs other than the ones for which it paid. Id. at 247-48. In the present case, plaintiff claims to be injured through the purchase of the same TRT drugs about which defendants allegedly made misrepresentations. In New England Carpenters Health & Welfare Fund v. GlaxoSmithKline, LLC, No. Civ. A. 12-1191, 2014 WL 4119410, at *1 (E.D.Pa. Aug., 8, 2014), the court ruled, in a considerably different factual situation, that the plaintiffs had failed to allege that defendant’s alleged misconduct actually caused their injuries. In that case, plaintiffs did not assert injuries resulting from a deceptive marketing but rather from a purportedly illegal prescription coupon program. Id. The causation problems presented by a coupon program intended to alter doctors’ prescribing incentives are simply not at issue in this case. Also unlike this case, in Travelers Indemnity Co. v. Cephalon, Inc., 32 F.Supp.3d 538, 547-549 (E.D.Pa.2014), the plaintiffs had failed to allege any facts demonstrating why the drugs at issue were unsafe or ineffective and also failed to allege any particular false statement the defendants had made regarding the drugs’ safety and efficacy. In the present case, plaintiffs complaint contains numerous examples of studies indicating that TRT drugs are unsafe or ineffective for particular uses, as well as particular allegedly misleading statements made by defendants. The decision in In re Actimmune Marketing Litigation, No. C 08-02376 MHP, 2010 WL 3463491, at *10 (N.D.Cal. Sept. 1, 2010), is also distinguishable. In that case, the court ruled that the plaintiff had failed to allege that doctors prescribed the drugs at issue “as a result of’ defendants’ allegedly deceptive marketing and had otherwise failed to provide any allegations to link the off-label marketing with doctors’ decisions to prescribe the drugs. Id. In this case, however, plaintiff has alleged adequate facts regarding defendants’ off-label marketing and its efforts to create a new “disease state” that appeared to have scholarly support, such that the link between the alleged off-label marketing and doctors’ prescriptions of TRT drugs is sufficiently plausible for Article III purposes.

II. RICO claims

Plaintiff asserts that the RICO defendants have violated 18 U.S.C. § 1962(c) by orchestrating their fraudulent marketing schemes through patterns of racketeering activity. The RICO Act authorizes “[a]ny person injured in his business or property by reason of a violation of section 1962” to bring a private cause of action. 18 U.S.C. § 1964(c). To state a viable civil RICO claim, a plaintiff must allege that it was (1) “injur[ed] in its business or property (2) by reason of (3) the defendants’ violation of section 1962.” DeGuelle v. Camilli, 664 F.3d 192, 198 (7th Cir.2011). The Supreme Court has also interpreted the Act to require a civil RICO plaintiff to show that defendants’ section 1962 violations proximately caused the plaintiffs injury. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). For RICO purposes, proximate cause “requires ‘some direct relation between the injury asserted and the injurious conduct alleged.’ ” Id. (quoting Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)).

As a threshold matter, defendants argue that plaintiffs civil RICO claims are untimely. In addition, they contend that their alleged conduct could not have been the but-for cause of any injury plaintiff suffered; even if the alleged conduct was a but-for cause it was not a proximate cause of plaintiffs injury; and plaintiff has failed to identify any injury to business or property at all that is cognizable under the RICO Act. Defendants also fault plaintiff for failing to plead the circumstances of the alleged fraudulent marketing enterprises with the particularity required by Rule 9(b). The Court addresses each of these arguments in turn.

A. Timeliness

Defendants argue that plaintiffs claims against AbbVie, Auxilium, and Actavis are time-barred because plaintiff failed to bring its claims within the RICO statute’s four-year limitation period once it had notice of its injuries. As for plaintiffs claims against Endo and Lilly, both of whom entered the TRT market within four years of this lawsuit’s filing, defendants insist that neither defendant could have actually deceived plaintiff because by the time Endo and Lilly entered the market, a diligent TPP already would have knowledge of the facts about TRT drugs that defendants are alleged to have concealed or misrepresented.

In support of their arguments, defendants ask the Court to take judicial notice of numerous press releases, news reports, studies, and other publications, which they have attached as exhibits to their motion to dismiss. They argue that these publications, which discuss off-label promotion of TRT drugs and those drugs’ alleged risks and inefficacy, demonstrate that plaintiff either should have been aware of its alleged injuries (in the case of AbbVie, Auxi-lium, and Actavis) more than four years before filing this suit or should have had knowledge (in the case of Endo and Lilly) that would make it impossible to be deceived by defendants’ alleged fraud. Plaintiff responds that it is premature to decide these questions at this stage and requests that the Court strike defendants’ exhibits containing the publications for which they seek judicial notice, as well as defendants’ references in their briefs to the publications.

The Court agrees with plaintiff that it would be premature to decide these issues at the motion-to-dismiss stage. As the Seventh Circuit has recently reaffirmed, “[dismissing a complaint as untimely at the pleading stage is an unusual step.... ” Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir.2015) (internal quotation marks omitted). The relevant facts in Sidney Hillman were nearly identical to those at issue here. In that case, TPPs had brought a putative class action civil RICO suit against drug manufacturers alleging that the defendants had promoted their drug off-label for ineffective and unsafe uses. Id. at 924. The district court dismissed the claims as barred by RICO’s statute of limitations because reasonable TPPs would have discovered their injuries more than four years before the plaintiffs brought suit. Id. at 925. The Seventh Circuit reversed, concluding that the district court’s “departure from orthodoxy was not justified .... ” Id. at 928. The district court’s conclusion about when TPPs should have discovered their injuries was “not clear from the complaint and require[d] factual determinations not appropriately made at the pleadings stage.”

The Court is not persuaded by defendants’ attempts to distinguish Sidney Hill-man from this case. They note that although the court in Sidney Hillman took judicial notice of only 6 articles, here they have offered over seventy articles, including stories in major national publications. Defendants insist that these articles provide more concrete information than that provided in Sidney Hillman about the specific safety risks their drugs pose and about the specific wrongdoing defendants are alleged to have engaged in. Even were the Court to accept these distinctions, the allegations in plaintiffs complaint and the defendants’ articles still do not provide the Court with enough information to dismiss the claims as untimely at this stage. The Court cannot yet determine, for example, when plaintiff “actually became aware that [it] was paying for off-label use.” Id. at 928. Nor can the Court determine what information a reasonable TPP should be expected to possess at a given time. It would require speculation, or at least the improper drawing of an inference against plaintiff, for the Court to determine “when even a sophisticated benefit fund should have uncovered its injuries.” Id. at 929.

The lack of factual information at this stage equally affects the Court’s ability to address the AbbVie’s, Auxilium’s, and Ac-tavis’ timeliness arguments as it does its ability to determine whether Endo and Lilly entered the market too late to be liable for claims based on alleged misrepresentation. “These questions, in [the Court’s] view, should be left for summary judgment, when they can be reviewed with a more complete record.” Id.

B. RICO injury and causation

In addition to faulting plaintiff for the untimeliness of its claims, defendants contend that plaintiffs complaint fails to allege crucial elements of a civil RICO claim. Specifically, defendants argue that plaintiff has failed to allege facts sufficient to support the following propositions: (1) that defendants’ alleged misconduct was a but-for cause of plaintiffs injury, (2) that defendants’ alleged misconduct was a proximate cause of plaintiffs injury, or (3) that the injury plaintiff claims is cognizable under the RICO Act. The Supreme Court has held that all three elements must be met to entitle a plaintiff to sue under 18 U.S.C. § 1964(c). See Holmes, 503 U.S. at 267-68, 112 S.Ct. 1311.

Defendants have cited a number of district court decisions in which courts have ruled against TPPs’ civil RICO claims on injury or causation grounds. Some of the cases are plainly distinguishable from this one, such as those in which TPPs have failed to allege that the drugs for which they paid were actually unsafe or ineffective. In this case, as discussed in connection with the issue of standing, plaintiff has provided numerous specific examples of the alleged risks of off-label TRT drug use, as well as studies purporting to document the ineffectiveness and lack of safety for off-label use.

In some of the other district court cases defendants cite, courts have ruled that the TPP plaintiffs’ theories of injury and causation involved too many intermediary actors, or links in the chain of causation, between the defendants’ alleged misconduct and the alleged injury. See, e.g., In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Products Liab. Litig., No. 3:09-CV-20071-DRH, 2010 WL 3119499, at *7 (S.D.Ill. Aug. 5, 2010) (dismissing civil RICO claims on proximate cause grounds where “multiple steps separate[d] the alleged wrongful conduct (the fraudulent advertising campaign and/or the alleged bribery) and the alleged injuries (paying “too much” for “too many”) Yaz prescriptions, including patient preference, the independent judgment of the prescribing physician, and the reimbursement decision rendered by the third party payor”). The courts in these cases have reasoned that a chain of causation that involves too many independent steps in between the alleged misconduct and the injury fails to meet RICO’s requirement that plaintiffs show “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes, 503 U.S. at 268, 112 S.Ct. 1311.

For their part, plaintiffs cite three circuit court decisions with facts similar to this one upholding the type of claims plaintiff asserts. See In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 804 F.3d 633, 633 (3d Cir.2015) (affirming denial of motion to dismiss RICO claims based on allegations that defendant manufacturer misrepresented and concealed safety risks associated with use of its Type II diabetes drugs); In re Neurontin Mktg. & Sales Practices Litig., 712 F.3d 21, 25 (1st Cir.2013) (affirming jury verdicts in favor of TPP against defendant manufacturer for RICO claims based on misrepresentations concerning effectiveness of off-label use of its anticonvulsant drug); Desiano v. Warner-Lambert Co., 326 F.3d 339, 340 (2d Cir.2003) (reversing, after analyzing sufficiency of causation allegations under Holmes, dismissal of TPP’s state-law claims based on defendant manufacturers fraudulent marketing of their Type II diabetes drugs). In each of these cases, unlike in those defendants cite, the TPP plaintiffs alleged that the defendant drug manufacturers made misrepresentations directly to the TPPs. See Avandia, 804 F.3d at 644; Neurontin, 712 F.3d at 37; Desiano, 326 F.3d at 350.

Other courts have recognized the significance of such allegations of direct misrepresentations with respect to the outcomes reached in those cases. See, e.g., UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 134 (2d Cir.2010) (“Crucially, the TPPs do not allege that they relied on Lilly’s misrepresentations — the misrepresentations at issue were directed through mailings and otherwise at doctors.”) (internal quotation marks omitted); Employer Teamsters-Local Nos. 175/505 Health & Welfare Trust Fund v. Bristol Myers Squibb Co., 969 F.Supp.2d 463, 474 (S.D.W.Va.2013) (highlighting distinction between cases like Yasmin, where courts have found proximate cause lacking under Holmes, and cases like Neurontin, where “defendants made misrepresentations about Neurontin directly to... Kaiser’s Drug Information service,” which “helped establish the causation necessary”); S. Illinois Laborers”, 2009 WL 3151807, at *7 (dismissing TPP RICO claims and ruling that alleged misrepresentation was of “a materially different kind than [those] in Desiano” where plaintiffs did not “allege that Defendant misrepresented [drug’s] safety directly to Plaintiffs” but rather made general misrepresentation on website); In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, No. 2:06-CV-5774(SRC), 2009 WL 2043604, at *18 (D.N.J. July 10, 2009) (noting distinction between misrepresentations directed at TPPs in Desiano and misrepresentations directed at physicians as “an important one” in dismissing TPPs’ RICO claims); Health Care Serv. Corp. v. Olivares, No. 2:10-CV-221-TJW-CE, 2011 WL 4591913, at *7 (E.D.Tex. Sept. 2, 2011) report and recommendation adopted, No. 2:10-CV-221-DF-CE, 2011 WL 4591915 (E.D.Tex. Sept. 30, 2011) (distinguishing Neurontin and Desiano and recommending dismissal of TPP’s RICO claim where TPP “failfed] to allege what misrepresentations, if any, were made directly to it and upon which it relied”).

At oral argument in this case, plaintiffs counsel emphasized that the difference between the complaints in the cases defendants cite, such as that in Yasmin, and plaintiffs complaint here is that “those lawyers did not plead any direct misrepresentation to third-party payors.” Dec. 4, 2015 Tr. 52. Counsel conceded that without such allegations of direct misrepresentations to TPPs, “you can see why [Judge Herndon] concluded those [too] attenuated.” Id. Perhaps recognizing the significance of this distinction in the case law, plaintiff has tailored its allegations so that its case more closely resembles Avandia, Neurontin, and Desiano than cases in which courts have dismissed TPPs’ RICO claims because the chain of causation was too attenuated. As counsel explained, “without access to the formulary, there is not access to payment, and our clients’ injury is their economic losses, and that’s exactly what the Avandia court held as well.” Id. Access to the formulary is the “ticket” that ensures that TPPs will pay for the allegedly unnecessary prescriptions. Id.

Thus plaintiffs contention regarding RICO injury and causation appears to be as follows: (1) defendants made direct misrepresentations to plaintiff and other TPPs, (2) which directly caused their injuries (favorable formulary placement of TRTs), and (3) defendants’ misrepresentations to physicians and consumers ensured that defendants could “pull through” on the formulary placement, Compl. ¶ 233, thereby increasing plaintiffs injury with each off-label prescription. With this in mind, the Court addresses whether plaintiff has stated a claim under the RICO Act.

1. But-for causation

Plaintiffs claim, as alleged, is not deficient due to the absence of sufficient allegations of but-for causation. Plaintiff alleges that the RICO defendants created a false disease and claimed that their drugs could treat it safely and effectively; concealed evidence of the drugs’ risks; distorted the scholarly literature about their drugs and about their false disease; and launched nationwide campaigns to make false representations about their drugs to consumers, physicians, and TPPs. Accepting these allegations as true, as the Court must do at this stage, one can reasonably infer that at least some of the $38,-962.566.73 plaintiff paid for TRT drugs was likely spent on drugs for which it would never have paid absent defendants’ alleged schemes. Cf. BCS Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 758 (7th Cir.2011) (asking, in civil RICO case in which plaintiffs claimed they lost auction bids for tax liens where defendants fraudulently distorted bidding process: “How likely is it that [plaintiffs] lost no bids to bidders who had 13 arms in the room but should have had only three?”) (emphasis in original).

Defendants make three primary attacks against plaintiffs but-for causation allegations. First, defendants contend that plaintiff has failed to allege facts showing that defendants’ misrepresentations were the cause of plaintiffs payments for allegedly unnecessary and unsafe prescriptions as opposed to some other cause, such as a doctor’s or patient’s independent action. Second, defendants insist that plaintiff is required, but has failed, to identify a particular misrepresentation to a particular physician that induced the physician to prescribe TRT drugs to a particular patient. Third, they argue that allegations in plaintiffs complaint conclusively demonstrate that defendants’ alleged misrepresentations were not the cause of plaintiffs payments.

Defendants’ first attack is unavailing. As the Court discussed above, plaintiffs allegations outlining defendants’ fraudulent schemes aimed at various levels of the American health care system — from patient to physician to TPP — allow a reasonable inference that defendants’ fraud was a likely cause of plaintiffs payments for at least some TRT drugs. Plaintiff need not do more to plausibly allege but-for causation at this stage. “The plaintiff doesn’t have to prove a series of negatives; he doesn’t have to offer evidence which positively excludes every other possible cause of the [injury].” BCS Servs., 637 F.3d at 757 (internal quotation marks omitted). In this case, plaintiff does not have to allege facts that exclude the possibility that, for example, a doctor’s independent medical judgment or a patient’s independent preferences caused plaintiff to reimburse for an unnecessary TRT drug.

The Court is also unpersuaded by defendants’ second argument — that to adequately plead but-for causation, plaintiff must identify in its complaint a specific doctor who relied on a specific misrepresentation in prescribing a TRT drug, for which plaintiff reimbursed, to a specific patient. As discussed below in regard to Rule 9(b)’s particularity requirements, plaintiff has explained in its complaint that it “did not have access to the patient’s diagnosis as a component of the TRT drug claims payment transaction.” Compl. ¶ 179. Thus it would be unnecessarily burdensome at this stage to require plaintiff to identify which of its members received a TRT prescription for off-label use in order to then identify the prescribing doctor and determine whether he relied on misrepresentations in issuing the prescription. In addition, plaintiff may be able to prove causation without ever identifying a particular doctor who prescribed to a particular patient. In Neu-rontin, for example, the court approved of plaintiffs use of expert testimony providing a statistical link between fraudulent marketing and off-label prescribing in order to establish causation. See Neurontm, 712 F.3d at 29-30.

Defendants object that the use of such statistical or “aggregate” or “general” proof to establish causation is impermissible. They have not, however, cited a Seventh Circuit to that effect, and the use of such proof would appear to comport with the “probabilistic” approach to causation that Judge Posner endorsed in the RICO context in BCS Services. See BCS Servs., 637 F.3d at 758 (“The causal relation between a defendant’s act and a plaintiffs injury, like that required to establish standing under Article III of the Constitution, need only be probable.”). At this stage of the case, the Court cannot.say, without reviewing the evidence plaintiff might offer in this regard, that it would be inadequate. Cf. UFCW Local 1776 v. Eli Lilly & Co,, 620 F.3d 121, 133-34 (2d Cir.2010) (disapproving of plaintiffs reliance on generalized proof to establish causation only after determining that evidence in record did not support conclusion for which generalized proof would be proffered).

Defendants’ third attack — that allegations in plaintiffs complaint belie its assertion of but-for causation — arguably has some force. But a liberal reading of plaintiffs complaint still permits a reasonable inference that defendants’ actions were a but-for cause of plaintiffs injury. Defendants highlight one paragraph in the complaint, in which plaintiff appears to admit that defendants’ alleged misrepresentations were not the cause of its decisions to place defendants’ TRT drugs on its formu-lary. According to that particular paragraph, TPPs “widely accepted” TRT drugs on their formularies because TRT drugs are indicated to treat classical hypogonadism, which is a “very serious and sometimes difficult to treat disease.” Compl. ¶ 175. Defendants contend that an admission that this, as opposed to defendants’ misrepresentations, was the reason for placing the drugs on formulary is fatal to plaintiff on the issue of but-for causation.

A court, however, “owe[s] a plaintiffs complaint a generous construction in deciding whether it states a claim on which relief can be granted.” Minch v. City of Chicago, 363 F.3d 615, 630 (7th Cir.2004). Reading the allegation at issue in the context of the entire complaint, the Court understands plaintiff to allege that because it was not aware of defendants’ off-label marketing scheme, which resulted in numerous off-label prescriptions, it had good reason to place TRT drugs on formulary believing they would only (or primarily) be prescribed to treat classical hypogonadism. Plaintiff also suggests that TPPs have tools to adjust a drug’s formulary status so that prescriptions for on-label uses are covered, while off-label uses require “prior authorization or a letter of medical necessity.” Compl. ¶ 32. Thus the Court concludes, based on the allegations in the complaint, that plaintiff could have taken steps to limit payments for off-label uses of TRT drugs, such that any misrepresentations preventing it from doing so could constitute a but-for cause of its injury.

2. Proximate causation

Defendants also argue that plaintiff has failed to adequately allege proximate causation. The parties disagree about the appropriate proximate cause standard that applies to civil RICO claims. The United States Supreme Court first articulated RICO’s proximate cause standard in Holmes. In that case, a stock-manipulation scheme prevented two stock broker-dealers from meeting obligations to their customers, and as a result, an insurer of the broker-dealers became obligated to reimburse the customers. 503 U.S. at 261, 112 S.Ct. 1311. The Supreme Court ruled that the insurer’s injury was too remote from the stock manipulation to allow the insurer to recover from the broker-dealers under RICO. Id. at 270, 112' S.Ct. 1311. The Court held that only those “directly injured victims” could satisfy RICO’s proximate cause requirement, and it offered three justifications for this requirement. Id. at 269, 112 S.Ct. 1311. First, the less direct the injury, “the more difficult it becomes to ascertain the amount of a plaintiffs damages attributable to the violation, as distinct from other, independent factors.” Id. Second, a directness requirement simplifies the apportionment of damages and “obviate[s] the risk of multiple recoveries.” Id. And third, allowing indirectly injured parties to sue does not serve any general interest in deterring injurious conduct, because directly injured parties can bring suit and serve the role of “private attorneys general.” Id.

Plaintiff argues that because its claims are not derivative of any injuries suffered by third parties, the injuries are sufficiently “direct” under Holmes, and Plaintiff also insists that all three of Holmes’ “functional factors” favor it. In support of this argument, plaintiff points to the analysis in Desiano and Neurontin, where the courts concluded that TPP claims similar to those asserted here satisfied Holmes’ three policy rationales and therefore met RICO’s proximate cause requirement. There can be little dispute here that plaintiffs claims satisfy Holmes’ second and third factors. Plaintiff alleges a discrete and identifiable economic injury: the loss it suffered by paying for unnecessary off-label TRT prescriptions. As the court in Desiano noted, even if damages must be apportioned between the TPP and the patient, this can be easily calculated on the basis of their respective co-pay. Desiano, 326 F.3d at 350. Thus the second factor favors plaintiff. The third factor also favors plaintiff because as the parties paying 80-90% of the TRT drugs’ costs, TPPs have the best incentives to act as private attorneys general to bring claims for this economic loss.

Regarding Holmes’ first factor, the concern that independent causes may contribute to the alleged injury, the court in Desiano ruled that there was no such concern in that case given that the TPPs had alleged direct misrepresentation on the part of the defendants, which directly led the TPPs to make the payments at issue. Id. Similarly, in Neurontin, the court found Holmes’ factors satisfied because defendants’ fraudulent marketing plan targeted TPPs and “only became successful once [the defendant] received payments [from TPPs] for the additional Neurontin drug prescriptions it induced.” Neurontin, 712 F.3d at 39. Thus because the TPP was an intended victim of the fraudulent and scheme and its injury a “foreseeable and natural consequence” of the scheme, proximate causation had been shown. Id. at 37 (quoting Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 658, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008)).

Defendants emphasize the “independent actions” of intermediaries, which they argue cuts against a finding that plaintiff has met the first Holmes factor. In addition, defendants reject the contention that satisfaction of Holmes’ three factors or suffering injury as a “foreseeable and natural consequence” of a scheme — even as an intended victim — is sufficient to satisfy RICO’s proximate cause requirement. Rather, they contend, the Supreme Court has rejected foreseeability and intent as the appropriate proximate cause standard and has focused on the directness of the injury to the alleged misconduct. In Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006), for example, the Court held that a steel company’s RICO claim failed for lack of proximate cause where it sued a competing steel company, alleging that the competitor’s tax fraud had allowed it to charge lower prices and gain market share from the plaintiff. The Court ruled that the true direct victim of the alleged fraud was the State of New York, which was not receiving the taxes it was owed, and that the alleged misconduct of engaging in tax fraud was distinct — and thus too remote— from plaintiffs alleged injury of having to compete against artificially low prices. Id. at 458, 126 S.Ct. 1991. The dissent noted that the Court’s ruling allowed defendants to evade RICO liability on proximate causation grounds even where the alleged injuries were foreseeable and intended consequences of the alleged misconduct. Id. at 470, 126 S.Ct. 1991 (Thomas, J., dissenting).

Two years after Anza, in Bridge, the Supreme Court held that a RICO plaintiff had adequately shown proximate cause where its injury was a “foreseeable and natural consequence” of the defendants’ fraudulent scheme. Bridge, 553 U.S. at 658, 128 S.Ct. 2131. In Bridge, the plaintiff alleged that it had lost out on tax liens it had bid for at a tax lien auction because a rival bidder had fraudulently obtained a disproportionate share of bids at the auction. Although the rival bidder did not deceive or make false representations to the plaintiff, the Court concluded that the relationship between the fraud and the injury to other bidders (decreased probability of a winning bid) was sufficiently direct to allow plaintiffs RICO claim to survive. Id. As defendants note, however, the Court still asked whether there were “independent factors that accounted] for [plaintiffs] injury,” as it did in Holmes and Anza, and found none. Id. While the foreseeability of plaintiffs injury appeared to play a role in the Court’s reasoning in Bridge, a plurality of the Court suggested two years later in Hemi that the focus of the RICO proximate cause analysis is “on the directness of the relationship between the conduct and the harm,” not on foreseeability. Hemi, 559 U.S. at 1, 130 S.Ct. 983. Justice Ginsburg, however, who provided the fifth vote to reverse the decision below, did so without “subscribing to the broader range of the Court’s proximate cause analysis.” Id. at 995 (Ginsburg, J., concurring).

Defendants argue that under the proximate cause standard established in these cases, the injury plaintiff alleges • in the present case lacks a sufficiently direct relationship to defendants’ alleged misconduct. As a result, they contend, the Court should dismiss the TPP’s RICO claim on proximate cause grounds because too many independent steps (for example, patients’ personal preference for the drugs or physicians’ independent medical judgment in prescribing the drugs) separate the misconduct and the injury.

Defendants, citing International Brotherhood of Teamsters, Local 734 Health and Welfare Trust Fund v. Philip Morris Inc. (‘Teamsters'), 196 F.3d 818 (7th Cir.1999), also assert that - Seventh Circuit precedent requires this result. See id. at 825 (requiring dismissal of TPPs’ RICO claims where the injury for which they sought relief was “remote indeed, the chain of causation long”). That case, however, is factually dissimilar from this one; it involved claims against tobacco companies based on injuries the TPPs’ members suffered. Though Judge Herndon relied on Teamsters in Yasmin, he said that “[extrapolating from Teamsters.. .is difficult because certain aspects of the case are unique to tobacco litigation and clearly distinguishable from the claims advanced [in Yasmin].” Yasmin, 2010 WL 3119499, at *5.

In a decision subsequent to both Teamsters and Yasmin, the Seventh Circuit made it clear that where a suit is brought by the direct victim and the plaintiff “suffered the sort of injury that would be the expected consequence of the defendant’s wrongful conduct,” it is inappropriate to grant summary judgment (and, therefore, inappropriate to dismiss under Rule 12(b)(6)) based on the purported absence of proximate cause. BCS Servs., 637 F.3d at 758; see also id. at 754 (“[T]he doctrine of proximate cause does its work [where] too many unexpected things had to happen between the defendant’s wrongdoing and the plaintiffs injury, in order for the injury to occur — so many unexpected things that the defendant couldn’t have foreseen the effect of his wrongdoing....). Such is the case here. Plaintiffs allege that defendants targeted them and that the injury was both foreseeable and intended. Nothing more is required.

As the Court discussed in a previous section of this decision, a consistent pattern emerges from a review of previous decisions involving RICO claims brought by TPPs against drug manufacturers for fraudulent off-label